AN ACT relating to the abolition of the death penalty.

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AN ACT relating to the abolition of the death penalty. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 532 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) Notwithstanding any provision of law to the contrary, capital punishment by 5
means of the death penalty is abolished as of the effective date of this Act. 6
(2) The court having jurisdiction over a person sentenced to death before the 7
effective date of this Act and for whom the death sentence has not been executed 8
shall sentence that person to imprisonment for life without benefit of probation or 9
parole. 10
Section 2. KRS 422.285 is amended to read as follows: 11
(1) (a) Except as provided in paragraph (b) of this subsection, a person who was 12
convicted of a capital offense, a Class A felony, a Class B felony, or any 13
offense that would classify a person as a violent offender [designated a 14
violent offense] under KRS 439.3401 and who meets the requirements of this 15
section may at any time request the forensic deoxyribonucleic acid (DNA) 16
testing and analysis of any evidence that is in the possession o r control of the 17
court or Commonwealth, that is related to the investigation or prosecution that 18
resulted in the judgment of conviction and that may contain biological 19
evidence. 20
(b) This subsection shall not apply to offenses under KRS Chapter 218A, unless 21
the offense was accompanied by another offense outside of that chapter for 22
which testing is authorized by paragraph (a) of this subsection. 23
(2) Upon receipt of a request under this section accompanied by a supporting affidavit 24
containing sufficient factual averments to support the request from a person who 25
meets the requirements of subsection (5)(f) of this section at the time the request is 26
made for an offense to which the DNA relates, the court shall: 27
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(a) If the petitioner is not represented by counsel, appoint the Department of 1
Public Advocacy to represent the petitioner for purposes of the request, 2
pursuant to KRS 31.110(2)(c); or 3
(b) If the petitioner is represented by counsel or waives appointment of counsel in 4
writing or if the Department of Public Advocacy has previously withdrawn 5
from representation of the petitioner for purposes of the request, require the 6
petitioner to deposit an amount certain with the court sufficient to c over the 7
reasonable costs of the testing being requested. 8
(3) Counsel representing the petitioner shall be provided a reasonable opportunity to 9
investigate the petitioner's request and shall be permitted to supplement the request. 10
Pursuant to KRS 31.110(2) (c), the petitioner shall have no further right to counsel 11
provided by the Department of Public Advocacy on the matter if counsel 12
determines that it is not a proceeding that a reasonable person with adequate means 13
would be willing to bring at his or her ow n expense. If the Department of Public 14
Advocacy moves to withdraw as counsel for petitioner and the court grants the 15
motion, the court shall proceed as directed under subsection (2)(b) of this section. 16
(4) Upon receipt of the deposit required under subsect ion (2)(b) of this section or a 17
motion from counsel provided by the Department of Public Advocacy to proceed, 18
the court shall provide notice to the prosecutor and an opportunity to respond to the 19
petitioner's request. 20
(5) After due consideration of the req uest and any supplements and responses thereto, 21
the court shall order DNA testing and analysis if the court finds that all of the 22
following apply: 23
(a) A reasonable probability exists that the petitioner would not have been 24
prosecuted or convicted if exculp atory results had been obtained through 25
DNA testing and analysis; 26
(b) The evidence is still in existence and is in a condition that allows DNA testing 27
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and analysis to be conducted; 1
(c) The evidence was not previously subjected to DNA testing and analysis o r 2
was not subjected to the testing and analysis that is now requested and may 3
resolve an issue not previously resolved by the previous testing and analysis; 4
(d) Except for a petitioner sentenced to death prior to the effective date of this 5
Act, the petitioner was convicted of the offense after a trial or after entering an 6
Alford plea; 7
(e) Except for a petitioner sentenced to death prior to the effective date of this 8
Act, the testing is not sought for touch DNA, meaning casual or limited 9
contact DNA; and 10
(f) The petitioner is still incarcerated or on probation, parole, or other form of 11
correctional supervision, monitoring, or registration for the offense to which 12
the DNA relates. 13
(6) After due consideration of the request and any supplements and responses the reto, 14
the court may order DNA testing and analysis if the court finds that all of the 15
following apply: 16
(a) A reasonable probability exists that either: 17
1. The petitioner's verdict or sentence would have been more favorable if 18
the results of DNA testing and analysis had been available at the trial 19
leading to the judgment of conviction; or 20
2. DNA testing and analysis will produce exculpatory evidence; 21
(b) The evidence is still in existence and is in a condition that allows DNA testing 22
and analysis to be conducted; 23
(c) The evidence was not previously subject to DNA testing and analysis or was 24
not subjected to the testing and analysis that is now requested and that may 25
resolve an issue not previously resolved by the previous testing and analysis; 26
(d) Except for a petitioner sentenced to death prior to the effective date of this 27
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Act, the petitioner was convicted of the offense after a trial or after entering an 1
Alford plea; 2
(e) Except for a petitioner sentenced to death prior to the effective date of this 3
Act, the testing is not sought for touch DNA, meaning casual or limited 4
contact DNA; and 5
(f) The petitioner is still incarcerated or on probation, parole, or other form of 6
correctional supervision, monitoring, or registration for the offense to which 7
the DNA relates. 8
(7) The provisions of KRS 17.176 to the contrary notwithstanding, the petitioner shall 9
pay the costs of all testing and analysis ordered under this section. If the court 10
determines that the petitioner is a needy person under[using the standards set out 11
in] KRS 31.120 and the Department of Public Advocacy so moves, the court shall 12
treat the costs of testing and analysis as a direct expense of the defense for the 13
purposes of authorizing payment under KRS 31.185. 14
(8) If the prosecutor or defense counsel ha s previously subjected evidence to DNA 15
testing and analysis, the court shall order the prosecutor or defense counsel to 16
provide all the parties and the court with access to the laboratory reports that were 17
prepared in connection with the testing and analys is, including underlying data and 18
laboratory notes. If the court orders DNA testing and analysis pursuant to this 19
section, the court shall order the production of any laboratory reports that are 20
prepared in connection with the testing and analysis and may order the production 21
of any underlying data and laboratory notes. 22
(9) If a petition is filed pursuant to this section, the court shall order the 23
Commonwealth[state] to preserve during the pendency of the proceeding all 24
evidence in the Commonwealth's[state's] possession or control that could be 25
subjected to DNA testing and analysis. The Commonwealth[state] shall prepare an 26
inventory of the evidence and shall submit a copy of the inventory to the defense 27
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and the court. If the evidence is intentionally destroy ed after the court orders its 1
preservation, the court may impose appropriate sanctions, including criminal 2
contempt. 3
(10) The court may make any other orders that the court deems appropriate, including 4
designating any of the following: 5
(a) The preservation of some of the sample for replicating the testing and 6
analysis; and 7
(b) Elimination samples from third parties. 8
(11) If the results of the DNA testing and analysis are not favorable to the petitioner, the 9
court shall dismiss the petition. The court may make further orders as it deems 10
appropriate, including any of the following: 11
(a) Notifying the Department of Corrections and the Parole Board; 12
(b) Requesting that the petitioner's sample be added to the Department of 13
Kentucky State Police database; and 14
(c) Providing notification to the victim or family of the victim. 15
(12) Notwithstanding any other provision of law that would bar a hearing as untimely, if 16
the results of the DNA testing and analysis are favorable to the petitioner, the court 17
shall order a hearing and make any further orders that are required pursuant to this 18
section or the Kentucky Rules of Criminal Procedure. 19
Section 3. KRS 532.030 is amended to read as follows: 20
(1) When a person is convicted of a capital offense, he or she shall have his or her 21
punishment fixed [at death, or ]at a term of imprisonment for life without benefit of 22
probation or parole, or at a term of imprisonment for life without benefit of 23
probation or parole until he or she has served a minimum of twenty -five (25) years 24
of his or her sentence, or to a sentence of life, or to a term of not less than twenty 25
(20) years nor more than fifty (50) years. 26
(2) When a person is convicted of a Class A felony, he or she shall have his or h er 27
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punishment fixed at imprisonment in accordance with KRS 532.060. 1
(3) When a person is convicted of an offense other than a capital offense or Class A 2
felony, he or she shall have his or her punishment fixed at: 3
(a) A term of imprisonment authorized by this chapter; or 4
(b) A fine authorized by KRS Chapter 534; or 5
(c) Both imprisonment and a fine unless precluded by the provisions of KRS 6
Chapter 534.[ 7
(4) In all cases in which the death penalty may be authorized the judge shall instruct the 8
jury in accorda nce with subsection (1) of this section. The instructions shall state, 9
subject to the aggravating and mitigating limitations and requirements of KRS 10
532.025, that the jury may recommend upon a conviction for a capital offense a 11
sentence of death, or at a t erm of imprisonment for life without benefit of probation 12
or parole, or a term of imprisonment for life without benefit of probation or parole 13
until the defendant has served a minimum of twenty -five (25) years of his sentence, 14
or a sentence of life, or to a term of not less than twenty (20) years nor more than 15
fifty (50) years.] 16
Section 4. KRS 532.050 is amended to read as follows: 17
(1) A[No] court shall not impose sentence for conviction of a felony [, other than a 18
capital offense,] without first ordering a presentence investigation after conviction 19
and giving due consideration to a written report of the investigation. The 20
presentence investigation report sha ll not be waived; however, the completion of 21
the presentence investigation report may be delayed until after sentencing upon the 22
written request of the defendant if the defendant is in custody. 23
(2) The report shall be prepared and presented by a probation officer and shall include: 24
(a) The results of the defendant's risk and needs assessment; 25
(b) An analysis of the defendant's history of delinquency or criminality, physical 26
and mental condition, family situation and background, economic status, 27
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education, occupation, and personal habits; 1
(c) A preliminary calculation of the credit allowed the defendant for time spent in 2
custody prior to the commencement of a sentence under KRS 532.120; and 3
(d) Any other matters that the court directs to be included. 4
(3) Before imposing sentence for a felony conviction, the court may order the 5
defendant to submit to psychiatric observation and examination for a period not 6
exceeding sixty (60) days. The defendant may be remanded for this purpose to any 7
available clinic or menta l hospital or the court may appoint a qualified psychiatrist 8
to make the examination. 9
(4) If the defendant has been convicted of a sex crime, as defined in KRS 17.500, prior 10
to determining the sentence or prior to final sentencing for youthful offenders, t he 11
court shall order a comprehensive sex offender presentence evaluation of the 12
defendant to be conducted by an approved provider, as defined in KRS 17.500, the 13
Department of Corrections, or the Department of Juvenile Justice if the defendant is 14
a youthful offender. The comprehensive sex offender presentence evaluation shall 15
provide to the court a recommendation related to the risk of a repeat offense by the 16
defendant and the defendant's amenability to treatment and shall be considered by 17
the court in determining the appropriate sentence. A copy of the comprehensive sex 18
offender presentence evaluation shall be furnished to the court, the 19
Commonwealth's attorney, and to counsel for the defendant. If the defendant is 20
eligible and the court suspends the sentenc e and places the defendant on probation 21
or conditional discharge, the provisions of KRS 532.045(3) to (8) shall apply. All 22
communications relative to the comprehensive sex offender presentence evaluation 23
and treatment of the sex offender shall fall under t he provisions of KRS 197.440 24
and shall not be made a part of the court record subject to review in appellate 25
proceedings. The defendant shall pay for any comprehensive sex offender 26
presentence evaluation or treatment required pursuant to this section up to the 27
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defendant's ability to pay but no more than the actual cost of the comprehensive sex 1
offender presentence evaluation or treatment. 2
(5) The presentence investigation report shall identify the counseling treatment, 3
educational, and rehabilitation needs of the defendant and identify community -4
based,[ and] correctional-based, and institutional-based programs and resources 5
available to meet those needs or shall identify the lack of programs and resources to 6
meet those needs. 7
(6) Before imposing sentence, the court shall advise the defendant or his or her counsel 8
of the factual contents and conclusions of any presentence investigation or 9
psychiatric examinations and afford a fair opportunity and a reasonable period of 10
time, if the defendant so requests, to co ntrovert them. The court shall provide the 11
defendant's counsel a copy of the presentence investigation report. It shall not be 12
necessary to disclose the sources of confidential information. 13
Section 5. KRS 532.100 is amended to read as follows: 14
(1) As used in this section, "jail" means a "jail" or "regional jail" as defined in KRS 15
441.005. 16
(2) When an indeterminate term of imprisonment is imposed, the court shall commit 17
the defendant to the custody of the Department of Corrections for the term of his or 18
her sentence and until released in accordance with the law. 19
(3) When a definite term of impri sonment is imposed, the court shall commit the 20
defendant to a jail for the term of his or her sentence and until released in 21
accordance with the law. 22
(4) [When a sentence of death is imposed, the court shall commit the defendant to the 23
custody of the Depar tment of Corrections with directions that the sentence be 24
carried out according to law. 25
(5) ](a) The provisions of KRS 500.080(5) notwithstanding, if a Class D felon is 26
sentenced to an indeterminate term of imprisonment of five (5) years or less, 27
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he or she shall serve that term in a jail in a county in which the fiscal court has 1
agreed to house state prisoners; except that, when an indeterminate sentence 2
of two (2) years or more is imposed on a Class D felon convicted of a sexual 3
offense enumerated in KRS 1 97.410(1), or a crime under KRS 17.510(12) or 4
(13), the sentence shall be served in a state institution. Counties choosing not 5
to comply with the provisions of this paragraph shall be granted a waiver by 6
the commissioner of the Department of Corrections. 7
(b) The provisions of KRS 500.080(5) notwithstanding, a Class D felon who 8
received a sentence of more than five (5) years for nonviolent, nonsexual 9
offenses, but who currently has less than five (5) years remaining to be 10
served, may serve the remainder of h is or her term in a jail in a county in 11
which the fiscal court has agreed to house state prisoners. 12
(c) 1. The provisions of KRS 500.080(5) notwithstanding, and except as 13
provided in subparagraph 2. of this paragraph, a Class C or D felon with 14
a sentence o f more than five (5) years who is classified by the 15
Department of Corrections as community custody shall serve that term 16
in a jail in a county in which the fiscal court has agreed to house state 17
prisoners if: 18
a. Beds are available in the jail; 19
b. State facilities are at capacity; and 20
c. Halfway house beds are being utilized at the contract level as of 21
July 15, 2000. 22
2. When an indeterminate sentence of two (2) years or more is imposed on 23
a felon convicted of a sex crime, as defined in KRS 17.500, or any 24
similar offense in another jurisdiction, the sentence shall be served in a 25
state institution. 26
3. Counties choosing not to comply with the provisions of this paragraph 27
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shall be granted a waiver by the commissioner of the Department of 1
Corrections. 2
(d) Any jail that houses state inmates under this subsection shall offer programs 3
as recommended by the Jail Standards Commission. The Department of 4
Corrections shall adopt the recommendations of the Jail Standards 5
Commission and promulgate administrative regulations establishing required 6
programs for a jail that houses state inmates under this subsection. The 7
Department of Corrections shall approve programming offered by jails to state 8
inmates for sentencing credits in accordance with KRS 197.045. 9
(e) Before housing a ny female state inmate, a jail shall be certified pursuant to 10
KRS 197.020. 11
(f) 1. a. If a jail is at or over one hundred fifty percent (150%) capacity, the 12
Department of Corrections may direct the jail to transfer a 13
specified number of state prisoners to v acant beds at other 14
designated jails or state institutions. As used in this paragraph, 15
"capacity" means the capacity listed on the certificate of 16
occupancy issued each year to the jail by the Department of 17
Corrections. 18
b. The Department of Corrections shal l choose which state prisoners 19
are eligible for transfer based on the security level of the vacant 20
bed at the receiving jail or state institution. 21
c. State prisoners who are approved for transfer to a Department of 22
Corrections facility for necessary medica l treatment and care 23
pursuant to KRS 441.560 shall not be transferred to another jail. 24
d. State prisoners enrolled in a Department of Corrections approved 25
program pursuant to KRS 197.045 shall not be transferred. 26
e. State prisoners awaiting trial in the co unty they are being housed 27
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shall not be transferred. 1
f. Jails that receive state prisoners pursuant to this subparagraph shall 2
be responsible for the transportation of those prisoners to the jail. 3
2. If the Department of Corrections directs the transfer of a state prisoner 4
pursuant to subparagraph 1. of this paragraph, the jailer has fourteen 5
(14) days to transfer the state prisoner. If the jailer refuses to release 6
custody of the state prisoner to the receiving jail within fourteen (14) 7
days, the department shall reduce the per diem for the jail for an amount 8
equal to the per diem of that prisoner for each day the jailer refuses to 9
comply with the direction. 10
3. If the Department of Corrections directs the transfer of a state prisoner 11
pursuant to subparagraph 1. of this paragraph, the jailer of the receiving 12
jail shall accept the transfer and transport the state prisoner in 13
accordance with subparagraph 1.f. of this paragraph. If, after receiving a 14
copy of the direction, the jailer refuses to accept and transp ort the state 15
prisoner, the Department of Corrections shall reduce the per diem for the 16
receiving jail for an amount equal to the per diem of that prisoner for 17
each day the jailer refuses to comply with the direction. 18
4. If a jail has a vacant bed and has a Class C or Class D felon who, based 19
on the Department of Corrections classification system, is eligible to be 20
housed in that vacant bed, the department may direct the jail to transfer 21
the state prisoner to that bed. If the jailer refuses to transfer the state 22
prisoner to the vacant bed, the Department of Corrections shall reduce 23
the per diem for the jail for an amount equal to the per diem of that 24
prisoner for each day the jailer refuses to comply with the direction. 25
5. The per diem reduced pursuant to su bparagraph 2., 3., or 4. of this 26
paragraph shall be enforced by withholding the amount from the per 27
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diem paid to the jail pursuant to KRS 431.215(2). 1
6. If a jail that is at or over one hundred fifty percent (150%) capacity 2
requests the transfer of a speci fied number of state prisoners, the 3
Department of Corrections may, if vacant beds are available at other 4
jails, direct the transfer in accordance with subparagraph 1. of this 5
paragraph. 6
(g) If a jail has vacant beds in an area of the jail usually reserved for state 7
prisoners, the jail may house county prisoners in that area. 8
(5)[(6)] The jailer of a county in which a Class D felon or a Class C felon is 9
incarcerated may request the commissione r of the Department of Corrections to 10
incarcerate the felon in a state corrections institution if the jailer has reasons to 11
believe that the felon is an escape risk, a danger to himself or herself or other 12
inmates, an extreme security risk, or needs protec tive custody beyond that which 13
can be provided in a jail. The commissioner of the Department of Corrections shall 14
evaluate the request and transfer the inmate if he or she deems it necessary. If the 15
commissioner refuses to accept the felon inmate, and the Circuit Judge of the 16
county that has jurisdiction of the offense charged is of the opinion that the felon 17
cannot be safely kept in a jail, the Circuit Judge, with the consent of the Governor, 18
may order the felon transferred to the custody of the Department of Corrections. 19
(6)[(7)] (a) Class D felons and Class C felons serving their time in a jail shall be 20
considered state prisoners, and, except as provided in subsection (4)[(5)](f) of 21
this section, the Department of Corrections shall pay the jail in which t he 22
prisoner is incarcerated a per diem amount determined according to KRS 23
431.215(2). For other state prisoners and parole violator prisoners, the per 24
diem payments shall also begin on the date prescribed in KRS 431.215(2), 25
except as provided in subsection (4)[(5)](f) of this section. 26
(b) 1. The per diem amount paid to the jail shall be increased by two dollars 27
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($2) per day of program attendance for those inmates enrolled in and 1
attending evidence-based programs approved by the department and that 2
do not re quire instructors to have completed any postsecondary 3
education. 4
2. The per diem amount paid to the jail shall be increased by ten dollars 5
($10) per day of program attendance for those inmates enrolled in and 6
attending evidence-based programs approved by the department and that 7
require instructors to have completed particular postsecondary courses. 8
(c) Any amount beyond the base per diem paid under paragraph (a) of this 9
subsection that is paid under a contract to the jail for an inmate's attendance at 10
an ev idence-based program shall be credited toward the ten dollars ($10) 11
increase in per diem required under paragraph (b) of this subsection. 12
(7)[(8)] State prisoners, excluding the Class D felons and Class C felons qualifying to 13
serve time in jails, shall be transferred to the state institution within forty -five (45) 14
days of final sentencing. 15
(8)[(9)] (a) Class D felons eligible for placement in a jail may be permitted by the 16
warden or jailer to participate in any approved community work program or 17
other form of work release with the approval of the commissioner of the 18
Department of Corrections. 19
(b) The authority to release an inmate to work under this subsection may be 20
exercised at any time during the inmate's sentence, including the period when 21
the court has concurrent authority to permit work release pursuant to KRS 22
439.265. 23
(c) The warden or jailer may require an inmate participating in the program to 24
pay a fee to reimburse the warden or jailer for the cost of operating the 25
community work program or any othe r work release program. The fee shall 26
not exceed the lesser of fifty -five dollars ($55) per week or twenty percent 27
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(20%) of the prisoner's weekly net pay earned from the community work 1
program or work release participation. In addition, the inmate may be required 2
to pay for any drug testing performed on the inmate as a requirement of the 3
community work program or work release participation. 4
(d) This subsection shall not apply to an inmate who: 5
1. Is not eligible for work release pursuant to KRS 197.140; 6
2. Has a maximum or close security classification as defined by 7
administrative regulations promulgated by the Department of 8
Corrections; 9
3. Is subject to the provisions of KRS 532.043; or 10
4. Is in a reentry center as defined in KRS 441.005. 11
Section 6. KRS 533.010 is amended to read as follows: 12
(1) Any person who has been convicted of a crime and who has not been sentenced to 13
imprisonment for life without parole or life without parole for twenty -five (25) 14
years[death] may be sentenced to probation, probation with an alternative 15
sentencing plan, or conditional discharge as provided in this chapter. 16
(2) Before imposition of a sentence of imprisonment, the court shall consider 17
probation, probation with an alternative sentencing p lan, or conditional discharge. 18
Unless the defendant is a violent offender[felon] as defined in KRS 439.3401 or a 19
statute prohibits probation, shock probation, or conditional discharge, after due 20
consideration of the defendant's risk and needs assessment, n ature and 21
circumstances of the crime, and the history, character, and condition of the 22
defendant, probation or conditional discharge shall be granted, unless the court is of 23
the opinion that imprisonment is necessary for protection of the public because: 24
(a) There is substantial risk that during a period of probation or conditional 25
discharge the defendant will commit another crime; 26
(b) The defendant is in need of correctional treatment that can be provided most 27
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effectively by his or her commitment to a correctional institution; or 1
(c) A disposition under this chapter will unduly depreciate the seriousness of the 2
defendant's crime. 3
(3) In the event the court determines that probation is not appropriate after due 4
consideration of the defendant's risk and needs assessment, nature and 5
circumstances of the crime, and the history, character, and condition of the 6
defendant, probation with an alternative sentencing plan shall be granted unless the 7
court is of the opinion that imprisonment is necessary for the protect ion of the 8
public because: 9
(a) There is a likelihood that during a period of probation with an alternative 10
sentencing plan or conditional discharge the defendant will commit a Class D 11
or Class C felony or a substantial risk that the defendant will commit a Class 12
B or Class A felony; 13
(b) The defendant is in need of correctional treatment that can be provided most 14
effectively by commitment to a correctional institution; or 15
(c) A disposition under this chapter will unduly depreciate the seriousness of the 16
defendant's crime. 17
(4) The court shall not determine that there is a likelihood that the defendant will 18
commit a Class C or Class D felony based upon the defendant's risk and ne eds 19
assessment and the fact that: 20
(a) The defendant has never been convicted of, pled guilty to, or entered an 21
Alford plea to a felony offense; 22
(b) If convicted of, having pled guilty to, or entered an Alford plea to a felony 23
offense, the defendant success fully completed probation more than ten (10) 24
years immediately prior to the date of the commission of the felony for which 25
the defendant is now being sentenced and has had no intervening convictions, 26
pleas of guilty, or Alford pleas to any criminal offense during that period; or 27
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(c) The defendant has been released from incarceration for the commission of a 1
felony offense more than ten (10) years immediately prior to the date of the 2
commission of the felony for which the defendant is now being sentenced and 3
has had no intervening convictions, pleas of guilty, or Alford pleas to any 4
criminal offense during that period. 5
(5) In making a determination under subsection (4) of this section, the court may 6
determine that the greater weight of the evidence indicates t hat there is a likelihood 7
that the defendant will commit a Class C or Class D felony. 8
(6) Upon initial sentencing of a defendant or upon modification or revocation of 9
probation, when the court deems it in the best interest of the public and the 10
defendant, the court may order probation with the defendant to serve one (1) of the 11
following alternative sentences: 12
(a) To a halfway house for no more than twelve (12) months; 13
(b) To home incarceration with or without work release for no more than twelve 14
(12) months; 15
(c) To jail for a period not to exceed twelve (12) months with or without work 16
release, community service, and other programs as required by the court; 17
(d) To a residential treatment program for the abuse of alcohol or controlled 18
substances; 19
(e) To a reentry center for no more than twelve (12) months; or 20
(f) To any other specified counseling program, rehabilitation or treatment 21
program, or facility. 22
(7) If during the term of the alternative sentence the defendant fails to adhere to and 23
complete the conditions of the alternative sentence, the court may modify the terms 24
of the alternative sentence or may modify or revoke probation and alternative 25
sentence and commit the defendant to an institution. 26
(8) In addition to those conditions that the court may impos e, the conditions of 27
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alternative sentence shall include the following and, if the court determines that the 1
defendant cannot comply with them, then they shall not be made available: 2
(a) A defendant sentenced to a halfway house shall: 3
1. Be working or pursuing his or her education or be enrolled in a full -time 4
treatment program; 5
2. Pay restitution during the term of probation; and 6
3. Have no contact with the victim of the defendant's crime; 7
(b) A defendant sentenced to home incarceration shall: 8
1. Be employe d by another person or self -employed at the time of 9
sentencing to home incarceration and continue the employment 10
throughout the period of home incarceration, unless the court determines 11
that there is a compelling reason to allow home incarceration while th e 12
defendant is unemployed; 13
2. Pay restitution during the term of home incarceration; 14
3. Enter a treatment program, if appropriate; 15
4. Pay all or some portion of the cost of home incarceration as determined 16
by the court; 17
5. Comply with other conditions as specified; and 18
6. Have no contact with the victim of the defendant's crime; 19
(c) A defendant sentenced to jail with community service shall: 20
1. Pay restitution during all or some part of the defendant's term of 21
probation; and 22
2. Have no contact with the victim of the defendant's crime; 23
(d) A defendant sentenced to a residential treatment program for drug and alcohol 24
abuse shall: 25
1. Undergo mandatory drug screening during term of probation; 26
2. Be subject to active, supervised probation for a term of five (5) years; 27
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3. Undergo aftercare as required by the treatment program; 1
4. Pay restitution during the term of probation; and 2
5. Have no contact with the victim of the defendant's crime; or 3
(e) A defendant sentenced to a reentry center shall: 4
1. Be employed in the community or working in a vocational program at 5
the reentry center; 6
2. Be enrolled in a treatment program; 7
3. Pay restitution, fees, and fines during the term of probation; and 8
4. Comply with other conditions as specified. 9
(9) When the court deems it in the best interest of the defendant and the public, the 10
court may order the person to work at community service related projects under the 11
terms and conditions specified in KRS 533.070. Work at community service related 12
projects shall be considered[ as] a form of conditional discharge. 13
(10) Probation with alternative sentence shall not be available as set out in KRS 532.045 14
and 533.060, except as provided in KRS 533.030(6). 15
(11) The court may utilize a community corrections program authorized or funded under 16
KRS Chapter 196 to provide services to any person released under this section. 17
(12) When the court deems it in the best interest of the defen dant and the public, the 18
court may order the defendant to placement for probation monitoring by a private 19
agency. The private agency shall report to the court on the defendant's compliance 20
with his or her terms of probation or conditional discharge. The de fendant shall be 21
responsible for any reasonable charges which the private agency charges. 22
(13) The jailer in each county incarcerating Class C or D felons may deny work release 23
privileges to any defendant for violating standards of discipline or other jail 24
regulations. The jailer shall report the action taken and the details of the violation 25
on which the action was based to the court of jurisdiction within five (5) days of the 26
violation. 27
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(14) The Department of Corrections shall, by administrative regulation , develop written 1
criteria for work release privileges granted under this section. 2
(15) Reimbursement of incarceration costs shall be paid directly to the jailer in the 3
amount specified by written order of the court. Incarceration costs owed to the 4
Department of Corrections shall be paid through the circuit clerk. 5
(16) The court shall enter into the record written findings of fact and conclusions of law 6
when considering implementation of any sentence under this section. 7
Section 7. KRS 640.010 is amended to read as follows: 8
(1) For children who are alleged to be youthful offenders by falling in the purview of 9
KRS 635.020(2) to (8), the court shall at arraignment ensure that the child's rights 10
as specified in KRS 610.060 have been explained and followed. 11
(2) (a) In the case of a c hild alleged to be a youthful offender by falling within the 12
purview of KRS 635.020(2) to (8), the District Court shall, upon motion by 13
the county attorney to proceed under this chapter, and after the county 14
attorney has consulted with the Commonwealth's a ttorney, conduct a 15
preliminary hearing to determine if the child should be transferred to Circuit 16
Court as a youthful offender. The preliminary hearing shall be conducted in 17
accordance with the Rules of Criminal Procedure. 18
(b) At the preliminary hearing, the court shall determine if there is probable cause 19
to believe that an offense was committed, that the child committed the 20
offense, and that the child is of sufficient age and has the requisite number of 21
prior adjudications, if any, necessary to fall withi n the purview of KRS 22
635.020. 23
(c) If the District Court determines probable cause exists, the court shall consider 24
the following factors before determining whether the child's case shall be 25
transferred to the Circuit Court: 26
1. The seriousness of the alleged offense; 27
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2. Whether the offense was against persons or property, with greater 1
weight being given to offenses against persons; 2
3. The maturity of the child as determined by his or her environment; 3
4. The child's prior record; 4
5. The best interest of the child and community; 5
6. The prospects of adequate protection of the public; 6
7. The likelihood of reasonable rehabilitation of the child by the use of 7
procedures, services, and facilities currently available to the juvenile 8
justice system; 9
8. Evidence of a child's participation in a gang; 10
9. Whether the child is a defendant with a serious intellectual disability as 11
defined in subsection (4) of this section [in accordance with KRS 12
532.130]; and 13
10. Whether the child used a firearm in the commission of the offense. 14
(d) If, following the comple tion of the preliminary hearing, the District Court 15
finds, after considering the factors enumerated in paragraph (c) of this 16
subsection, that two (2) or more of the factors specified in paragraph (c) of 17
this subsection are determined to favor transfer, the child may be transferred 18
to Circuit Court, and if the child is transferred the District Court shall issue an 19
order transferring the child as a youthful offender and shall state on the record 20
the reasons for the transfer. The child shall then be proceeded against in the 21
Circuit Court as an adult, except as otherwise provided in this chapter. 22
(e) If, following completion of the preliminary hearing, the District Court is of 23
the opinion, after considering the factors enumerated in paragraph (c) of this 24
subsection, that the child shall not be transferred to the Circuit Court, the case 25
shall be dealt with as provided in KRS Chapter 635. 26
(3) If the child is transferred to Circuit Court under this section and the grand jury does 27
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not find that there is probable caus e to indict the child as a youthful offender, as 1
defined in KRS 635.020(2) to (8), but does find that there is probable cause to 2
indict the child for another criminal offense, the child shall not be tried as a 3
youthful offender in Circuit Court but shall b e returned to District Court to be dealt 4
with as provided in KRS Chapter 635. 5
(4) As used in this section: 6
(a) "Serious intellectual disability" means significantly subaverage general 7
intellectual functioning existing concurrently with substantial deficits in 8
adaptive behavior and manifested during the developmental period; and 9
(b) "Significantly subaverage general intellectual functioning" means an 10
intelligence quotient or I.Q. of seventy (70) or below. 11
Section 8. KRS 640.040 is amended to read as follows: 12
(1) A[No] youthful offender who has been convicted of a capital offense [who was 13
under the age of sixteen (16) years at the time of the commission of the offense 14
shall be sentenced to capital punishment. A youthful offe nder may be sentenced to 15
capital punishment if he was sixteen (16) years of age or older at the time of the 16
commission of the offense. A youthful offender convicted of a capital offense 17
regardless of age may be sentenced to a term of imprisonment appropria te for one 18
who has committed a Class A felony and ] may not be sentenced to life 19
imprisonment without benefit of parole[ for twenty-five (25) years]. 20
(2) A[No] youthful offender shall not be subject to persistent felony offender 21
sentencing under the provisi ons of KRS 532.080 for offenses committed before the 22
age of eighteen (18) years. 23
(3) A[No] youthful offender shall not be subject to limitations on probation, parole or 24
conditional discharge as provided for in KRS 533.060. 25
(4) Any youthful offender convict ed of a misdemeanor or any felony offense which 26
would exempt him or her from KRS 635.020(2) to[, (3), (4), (5), (6), (7), or] (8) 27
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shall be disposed of by the Circuit Court in accordance with the provisions of KRS 1
635.060. 2
Section 9. The following KRS sections are repealed: 3
431.213 Definitions for KRS 431.213, 431.2135, and 431.240. 4
431.2135 Procedure for challenging condemned person's sanity. 5
431.218 Date of execution of condemned -- Copy of mandate to proper officer. 6
431.220 Execution of death sentence. 7
431.223 Method of execution in event of unconstitutionality of KRS 431.220. 8
431.224 Retroactive applicability. 9
431.240 Time of execution -- Governor to fix time in case of insanity, pregnancy, or 10
escape -- Administrative hearings -- Transfer to forensic psychiatric facility in case 11
of insanity. 12
431.250 Persons who may attend executions. 13
431.260 Warden's return on judgment. 14
431.270 Delivery or burial of body. 15
507A.060 Death sentence prohibited. 16
532.025 Presentence hearings -- Use of juvenile court records -- Aggravating or 17
mitigating circumstances -- Instructions to jury. 18
532.075 Review of death sentence by Supreme Court. 19
532.130 Definitions for KRS 532.135 and 532.140. 20
532.135 Determination by court that defendant has a serious intellectual disability or 21
serious mental illness. 22
532.140 Defendant with a serious intellectual disabili ty or serious mental illness not 23
subject to execution -- Authorized sentences. 24
532.300 Prohibition against death sentence being sought or given on the basis of race -- 25
Procedures for dealing with claims. 26
532.305 Application of KRS 532.300. 27
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532.309 Short title for KRS 532.300 to 532.309. 1