ACLU-CT Smart Justice leaders watch as the Criminal Justice Commission holds a public hearing about the search for a new Chief State's Attorney. Smart Justice testified before the Commission and submitted written testimony. 

With Connecticut Chief State’s Attorney Kevin Kane set to retire on November 1, the Criminal Justice Commission, which appoints prosecutors in Connecticut, is about to put out the call for applications for someone new to fill the role.

As the person in charge of overseeing prosecutors in Connecticut, the Chief State’s Attorney could play a powerful, active role in decreasing incarceration and pursuing racial justice. The Chief State’s Attorney has actively opposed racial justice and decarceration efforts in the past, but it doesn’t have to be this way. Everyone has a role to play in ending mass incarceration, and we shouldn’t let prosecutors off the hook.

So what is the Connecticut Chief State’s Attorney? Depending on who you ask, you could get two different answers: one based in what the law requires, and the other based on informal and not-at-all-mandatory habits.

First, let’s address some common myths and questions. The Chief State’s Attorney is not Connecticut’s criminal litigator-in-chief. They rarely argue cases in a courtroom (more on that later). They are not the state’s Attorney General, an elected position that represents the state in civil matters and has no criminal jurisdiction. The Chief State’s Attorney is not elected, as Connecticut’s Constitution makes it one of the few states that chooses prosecutors through appointment rather than direct election. Under the Connecticut Constitution, the Chief State’s Attorney and all 13 judicial district State’s Attorneys are constitutional officers. And finally, the Chief State’s Attorney, like all “state’s attorneys” in Connecticut, is a prosecutor, someone who represents the state in criminal cases. In other states, prosecutors are usually called “district attorneys,” or “DA’s.”

The Chief State’s Attorney is the most powerful prosecutor in Connecticut, because they can create a state where prosecutors’ budgets, policies, and lobbying align to prioritize strong communities and racial justice instead of incarceration and the status quo.

Connecticut requires the Chief State’s Attorney to administer the Division of Criminal Justice, the state agency that oversees all investigations in and prosecutions of criminal cases (adult and juvenile) in Connecticut. The Division of Criminal Justice sets the tone and standards for all prosecutors statewide. They could establish, for example, guidelines and rules for prosecutors’ behavior – things like whether to pursue cases against people for marijuana-related offenses, or the criteria for deciding whether to prosecute police who hurt or kill people.

The state’s 13 judicial districts each have state’s attorneys who run day-to-day operations in their districts, so the Chief State’s Attorney is not supervising line-level prosecutors. Contrary to what some people might think, the Chief State’s Attorney has some power to encourage each judicial district to adopt decarceration policies. For one, the Chief State’s Attorney is in charge of the Division of Criminal Justice’s budget.

In 2019, that budget was $50.2 million. The Chief State’s Attorney could, for instance, propose and seek funding for programs that divert people into rehabilitative programs instead of prosecuting them. They could also orient the Division budget to invest in tracking data about prosecutors’ decisions; training prosecutors to pursue justice instead of convictions; or establishing a conviction integrity unit to prevent, catch, and remedy prosecutions built on bad evidence, misconduct, or other rotten foundations.

The Office of the Chief State’s Attorney is also in charge of “the securing and administration of grants from the federal government and other sources.” So, under the Chief State’s Attorney’s direction, Connecticut could pursue grants for things like rehabilitation and diversionary programs, instead of those that undermine safety and justice by using failed punitive approaches.

In the Chief State’s Attorney’s most visible role, the Office of the Chief State’s Attorney is responsible for representing the Division of Criminal Justice at the Connecticut General Assembly. In other words, the Chief State’s Attorney’s office lobbies at the legislature. In addition to advocacy related to their budget, the Chief State’s Attorney and their representatives regularly weigh in on bills related to the criminal legal system, including efforts to try to hold police accountable.

Polling commissioned by Smart Justice has shown the majority of Connecticut voters, across political parties, support changing state law to prioritize policies focused on rehabilitation instead of incarceration. Yet in recent years, the Office of the Chief State’s Attorney has testified in support of dangerous proposals, including a bill that would have allowed prosecutors to imprison children in crisis in adult jails and prisons. A new Chief State’s Attorney could instead vocally, powerfully support policies to increase safety by decreasing incarceration and racism, like a bill to prevent discrimination against people on the basis of their record of arrest or conviction, or a bill to create meaningful accountability for prosecutors.

The Chief State’s Attorney chooses which state’s attorney will investigate when police hurt or kill someone. Connecticut requires the Chief State’s Attorney to appoint an out-of-district prosecutor to investigate every time police shoot and kill someone. This year, Connecticut updated the law to require the Chief State’s Attorney to do the same whenever police use deadly force, whether they killed the person or not. A Chief State’s Attorney committed to racial justice and police accountability could choose to assign police violence investigations solely to prosecutors who shared those values, and they could choose not to assign those cases to prosecutors who are unwilling to seek justice for people who were killed by police.

Relatedly, a little-known part of Connecticut law gives the Chief State’s Attorney the power to take action to hold police accountable if a lower-level state’s attorney has decided not to. Under Connecticut law, if a state’s attorney declines to prosecute a police employee for killing someone, that person’s immediate family member can file a written complaint to the Chief State’s Attorney or the Criminal Justice Commission. By law, the Chief State’s Attorney or Criminal Justice Commission chairperson is required to respond to that complaint in 30 days to tell the family member “the action, if any” they plan to take. In other words, if the state’s attorney decides not to prosecute a police employee for killing someone, the story doesn’t have to end; the Chief State’s Attorney could investigate further and make a different decision about whether to prosecute.

While it’s true that the Chief State’s Attorney is not the state’s litigator-in-chief, the Chief State’s Attorney can assign themselves to be the prosecutor on any investigation or criminal case if they have found “clear and convincing evidence” of “misconduct, conflict of interest, or malfeasance” by the original state’s attorney. If the state’s attorney objects, they and the Chief State’s Attorney would need to go before the Criminal Justice Commission, which would decide whether the Chief State’s Attorney or objecting state’s attorney would represent the state. A Chief State’s Attorney committed to holding prosecutors accountable, in other words, could personally step in to represent the state in cases when a state’s attorney is engaged in bad behavior.

The Chief State’s Attorney does not have the power to personally discipline state’s attorneys in the 13 judicial districts (the Criminal Justice Commission and the 13 state’s attorneys for those districts have the power to do that). They can, however, discipline prosecutors who work in the Division of Criminal Justice. This includes prosecutors on appeals, corruption, habeas corpus, and criminal housing cases, among others. So if a decarceration-and-racial-justice-minded Chief State’s Attorney sets rules for prosecutors in appeals cases and a prosecutor breaks those rules by using a cruel approach, the Chief State’s Attorney could discipline that prosecutor.

Finally, the Office of the Chief State’s Attorney is also in charge of: representing the state of Connecticut in appeals of criminal cases (appellate litigation); government corruption cases; civil cases from people who are challenging their incarceration (habeas corpus actions); criminal housing cases (such as dangerous housing code violations); criminal cases related to Medicaid (such as Medicaid fraud, or instances of abuse or neglect of patients in Medicaid-funded facilities); the state-level witness protection program; cold case unit; and worker’s compensation fraud cases. The word “office” is important in that sentence, because while the Chief State’s Attorney is where the buck stops, they are not personally representing the state in all of those cases. Collectively, these cases directly affect people’s lives, and the Chief State’s Attorney sets the tone for how the state behaves.

Nationwide, people are choosing prosecutors who are committed to ending mass incarceration and racism in the justice system. From Florida to Massachusetts, some prosecutors have stopped going after people for things like marijuana possession, started seeking accountability for police, and rejected cruel forms of punishment.

Connecticut’s next Chief State’s Attorney should do these things and more.

According to the Criminal Justice Commission, the state will post the Chief State’s Attorney job description and start seeking applicants for the position on October 22. Until the Commission chooses a new Chief State’s Attorney, the state will have an interim person in the job. After the Commission posts the job, it must review applications, interview candidates (something that must, by law, be done in public at the Legislative Office Building, with time set aside for testimony from members of the public), and ultimately choose someone to be the next Chief State’s Attorney.

Each step of the way, the ACLU of Connecticut and our Smart Justice campaign will be fighting for a Chief State’s Attorney who will use their power – all of it – to pursue decarceration and racial justice.

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