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 designated a violent offense under KRS 439.3401 and who meets the 14
requirements of this section may at any time request the forensic 15
deoxyribonucleic acid (DNA) testing and analysis of any evidence that: 16
1. Is in the possession or control of the court or Commonwealth;[, that ] 17
2. Is related to the investigation or prosecution that resulted in the 18
judgment of conviction; and[ that ] 19
3. May contain biological 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 peti tioner 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 4
in writing, or if the Department of Public Advocacy has previously withdrawn 5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 cover 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 n o 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 own 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 subsection (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 request and any supplements and res ponses to the 21
request[thereto], the court shall order DNA testing and analysis if the court finds 22
that all of the following apply: 23
(a) A reasonable probability exists that the petitioner would not have been 24
prosecuted or convicted if exculpatory results ha d 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 or 2
was not subjec ted 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 to the 14
request[thereto], the court may order DNA testing and analysis if the court finds 15
that all of the 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 using the standards set out in KR S 11
31.120 and the Department of Public Advocacy so moves, the court shall treat the 12
costs of testing and analysis as a direct expense of the defense for the purposes of 13
authorizing payment under KRS 31.185. 14
(8) If the prosecutor or defense counsel has 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 analysis, 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 al l 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. I f the evidence is intentionally destroyed 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 pe titioner, 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 her 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 accordance 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 term 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 fe lony[, 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 shall not be waived; however, the completi on 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 convi ction, 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 mental hospital or the court may appoint a q ualified 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, the 11
court shall order a comprehensive se x offender presentence evaluation of the 12
defendant to be conducted by an approved provider [,] as defined in KRS 17.500, 13
the Department of Corrections, or the Department of Juvenile Justice if the 14
defendant is a youthful offender. The comprehensive sex offe nder presentence 15
evaluation shall provide to the court a recommendation related to the risk of a 16
repeat offense by the defendant and the defendant's amenability to treatment and 17
shall be considered by the court in determining the appropriate sentence. A co py of 18
the comprehensive sex offender presentence evaluation shall be furnished to the 19
court, the Commonwealth's attorney, and [to ] counsel for the defendant. If the 20
defendant is eligible and the court suspends the sentence and places the defendant 21
on proba tion or conditional discharge, [the provisions of ] KRS 532.045(3) to (8) 22
shall apply. All communications relative to the comprehensive sex offender 23
presentence evaluation and treatment of the sex offender shall fall under [the 24
provisions of ]KRS 197.440 and shall not be made a part of the court record subject 25
to review in appellate proceedings. The defendant shall pay for any comprehensive 26
sex offender presentence evaluation or treatment required pursuant to this section 27
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up to the defendant's ability to pay but no more than the actual cost of the 1
comprehensive sex 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 c ommunity-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 controvert 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 imprisonment 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 Department of Corrections with directions that the sentence be 24
carried out according to law. 25
(5) ](a) Notwithstanding[The provisions of] KRS 500.080(5)[ notwithstanding], if a 26
Class D felon is sentenced to an indeterminate term of imprisonment of five 27
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(5) years or less, he or she shall serve that term in a jail in a county in which 1
the fiscal court has agreed to house state prisoners; except that, when an 2
indeterminate sentence of two (2) years or more is imposed on a Class D felon 3
convicted of a sexual offense enumerated in KRS 197.410(1), or a crime 4
under KRS 17.510(12) or (13), the sentence shall be served in a state 5
institution. Counties choosing not to comply with the provisions of this 6
paragraph shall be granted a waiver by the commissioner of the Department of 7
Corrections. 8
(b) Notwithstanding[The provisions of] KRS 500.080(5) [ notwithstanding] , a 9
Class D felon who received a sentence of more than five (5) years for 10
nonviolent, nonsexual offenses, but who currently has less than five (5) years 11
remaining to be served, may serve the remainder of his or her term in a jail in 12
a county in which the fiscal court has agreed to house state prisoners. 13
(c) 1. Notwithstanding[The provisions of] KRS 500.080(5)[ notwithstanding], 14
and except as provided in subparagraph 2. of this paragraph, a Class C 15
or D felon with a sentence of more than five (5) years who i s classified 16
by the Department of Corrections as community custody shall serve that 17
term in a jail in a county in which the fiscal court has agreed to house 18
state prisoners if: 19
a. Beds are available in the jail; 20
b. State facilities are at capacity; and 21
c. Halfway house beds are being utilized at the contract level [ as of 22
July 15, 2000]. 23
2. When an indeterminate sentence of two (2) years or more is imposed on 24
a felon convicted of a sex crime [,] as defined in KRS 17.500, or any 25
similar offense in another juri sdiction, the sentence shall be served in a 26
state institution. 27
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3. Counties choosing not to comply with the provisions of this paragraph 1
shall be granted a waiver by the commissioner of the Department of 2
Corrections. 3
(d) Any jail that houses state inmates u nder this subsection shall offer programs 4
as recommended by the Jail Standards Commission. The Department of 5
Corrections shall adopt the recommendations of the Jail Standards 6
Commission and promulgate administrative regulations in accordance with 7
KRS Chapter 13A establishing required programs for a jail that houses state 8
inmates under this subsection. The Department of Corrections shall approve 9
programming offered by jails to state inmates for sentencing credits in 10
accordance with KRS 197.045. 11
(e) Before housing any female state inmate, a jail shall be certified pursuant to 12
KRS 197.020. 13
(f) 1. a. If a jail is at or over one hundred fifty percent (150%) capacity, the 14
Department of Corrections may direct the jail to transfer a 15
specified number of state prisone rs to vacant beds at other 16
designated jails or state institutions. As used in this paragraph, 17
"capacity" means the capacity listed on the certificate of 18
occupancy issued each year to the jail by the Department of 19
Corrections. 20
b. The Department of Correctio ns shall choose which state prisoners 21
are eligible for transfer based on the security level of the vacant 22
bed at the receiving jail or state institution. 23
c. State prisoners who are approved for transfer to a Department of 24
Corrections facility for necessary medical treatment and care 25
pursuant to KRS 441.560 shall not be transferred to another jail. 26
d. State prisoners enrolled in a Department of Corrections approved 27
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program pursuant to KRS 197.045 shall not be transferred. 1
e. State prisoners awaiting trial in the county they are being housed 2
shall not be transferred. 3
f. Jails that receive state prisoners pursuant to this subparagraph shall 4
be responsible for the transportation of those prisoners to the jail. 5
2. If the Department of Corrections directs the tran sfer of a state prisoner 6
pursuant to subparagraph 1. of this paragraph, the jailer has fourteen 7
(14) days to transfer the state prisoner. If the jailer refuses to release 8
custody of the state prisoner to the receiving jail within fourteen (14) 9
days, the department shall reduce the per diem for the jail for an amount 10
equal to the per diem of that prisoner for each day the jailer refuses to 11
comply with the direction. 12
3. If the Department of Corrections directs the transfer of a state prisoner 13
pursuant to subparagraph 1. of this paragraph, the jailer of the receiving 14
jail shall accept the transfer and transport the state prisoner in 15
accordance with subparagraph 1.f. of this paragraph. If, after receiving a 16
copy of the direction, the jailer refuses to accept and transport the state 17
prisoner, the Department of Corrections shall reduce the per diem for the 18
receiving jail for an amount equal to the per diem of that prisoner for 19
each day the jailer refuses to comply with the direction. 20
4. If a jail has a vacant bed and has a Class C or Class D felon who, based 21
on the Department of Corrections classification system, is eligible to be 22
housed in that vacant bed, the department may d irect the jail to transfer 23
the state prisoner to that bed. If the jailer refuses to transfer the state 24
prisoner to the vacant bed, the Department of Corrections shall reduce 25
the per diem for the jail for an amount equal to the per diem of that 26
prisoner for each day the jailer refuses to comply with the direction. 27
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5. The per diem reduced pursuant to subparagraph 2., 3., or 4. of this 1
paragraph shall be enforced by withholding the amount from the per 2
diem paid to the jail pursuant to KRS 431.215(2). 3
6. If a j ail that is at or over one hundred fifty percent (150%) capacity 4
requests the transfer of a specified number of state prisoners, the 5
Department of Corrections may, if vacant beds are available at other 6
jails, direct the transfer in accordance with subparag raph 1. of this 7
paragraph. 8
(g) If a jail has vacant beds in an area of the jail usually reserved for state 9
prisoners, the jail may house county prisoners in that area. 10
(5)[(6)] The jailer of a county in which a Class D felon or a Class C felon is 11
incarcerated may request the commissioner of the Department of Corrections to 12
incarcerate the felon in a state corrections institution if the jailer has reasons to 13
believe that the felon is an escape risk, a danger to himself or herself or other 14
inmates, an extreme security risk, or needs protective custody beyond that which 15
can be provided in a jail. The commissioner of the Department of Corrections shall 16
evaluate the request and transfer the inmate if he or she deems it necessary. If the 17
commissioner refuses to ac cept the felon inmate, and the Circuit Judge of the 18
county that has jurisdiction of the offense charged determines[is of the opinion] that 19
the felon cannot be safely kept in a jail, the Circuit Judge, with the consent of the 20
Governor, may order the felon t ransferred to the custody of the Department of 21
Corrections. 22
(6)[(7)] (a) Class D felons and Class C felons serving their time in a jail shall be 23
considered state prisoners, and, except as provided in subsection (4)[(5)](f) of 24
this section, the Department o f Corrections shall pay the jail in which the 25
prisoner is incarcerated a per diem amount determined according to KRS 26
431.215(2). For other state prisoners and parole violator prisoners, the per 27
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diem payments shall also begin on the date prescribed in KRS 4 31.215(2), 1
except as provided in subsection (4)[(5)](f) of this section. 2
(b) 1. The per diem amount paid to the jail shall be increased by two dollars 3
($2) per day of program attendance for those inmates enrolled in and 4
attending evidence-based programs approved by the department and that 5
do not require instructors to have completed any postsecondary 6
education. 7
2. The per diem amount paid to the jail shall be increased by ten dollars 8
($10) per day of program attendance for those inmates enrolled in and 9
attending evidence-based programs approved by the department and that 10
require instructors to have completed particular postsecondary courses. 11
(c) Any amount beyond the base per diem paid under paragraph (a) of this 12
subsection that is paid under a contract to t he jail for an inmate's attendance at 13
an evidence -based program shall be credited toward the ten dollars ($10) 14
increase in per diem required under paragraph (b) of this subsection. 15
(7)[(8)] State prisoners, excluding the Class D felons and Class C felons q ualifying to 16
serve time in jails, shall be transferred to the state institution within forty -five (45) 17
days of final sentencing. 18
(8)[(9)] (a) Class D felons eligible for placement in a jail may be permitted by the 19
warden or jailer to participate in any app roved community work program or 20
other form of work release with the approval of the commissioner of the 21
Department of Corrections. 22
(b) The authority to release an inmate to work under this subsection may be 23
exercised at any time during the inmate's sentenc e, including the period when 24
the court has concurrent authority to permit work release pursuant to KRS 25
439.265. 26
(c) The warden or jailer may require an inmate participating in the program to 27
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pay a fee to reimburse the warden or jailer for the cost of opera ting the 1
community work program or any other work release program. The fee shall 2
not exceed the lesser of fifty -five dollars ($55) per week or twenty percent 3
(20%) of the prisoner's weekly net pay earned from the community work 4
program or work release participation. In addition, the inmate may be required 5
to pay for any drug testing performed on the inmate as a requirement of the 6
community work program or work release participation. 7
(d) This subsection shall not apply to an inmate who: 8
1. Is not eligible for work release pursuant to KRS 197.140; 9
2. Has a maximum or close security classification as defined by 10
administrative regulations promulgated by the Department of 11
Corrections; 12
3. Is subject to the provisions of KRS 532.043; or 13
4. Is in a reentry center as defined in KRS 441.005. 14
Section 6. KRS 533.010 is amended to read as follows: 15
(1) Any person who has been convicted of a crime [ and who has not been sentenced to 16
death] may be sentenced to probation, probation with an a lternative sentencing 17
plan, or conditional discharge as provided in this chapter. 18
(2) Before imposition of a sentence of imprisonment, the court shall consider 19
probation, probation with an alternative sentencing plan, or conditional discharge. 20
Unless the d efendant is a violent offender[felon] as defined in KRS 439.3401 or a 21
statute prohibits probation, shock probation, or conditional discharge, after due 22
consideration of the defendant's risk and needs assessment, nature and 23
circumstances of the crime, and t he history, character, and condition of the 24
defendant, probation or conditional discharge shall be granted, unless the court 25
determines[is of the opinion] that imprisonment is necessary for protection of the 26
public because: 27
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(a) There is substantial risk th at during a period of probation or conditional 1
discharge the defendant will commit another crime; 2
(b) The defendant is in need of correctional treatment that can be provided most 3
effectively by his or her commitment to a correctional institution; or 4
(c) A disposition under this chapter will unduly depreciate the seriousness of the 5
defendant's crime. 6
(3) In the event the court determines that probation is not appropriate after due 7
consideration of the defendant's risk and needs assessment, nature and 8
circumstances of the crime, and the history, character, and condition of the 9
defendant, probation with an alternative sentencing plan shall be granted unless the 10
court determines[is of the opinion] that imprisonment is necessary for the 11
protection of the public because: 12
(a) There is a likelihood that during a period of probation with an alternative 13
sentencing plan or conditional discharge the defendant will commit a Class D 14
or Class C felony or a substantial risk that the defendant will commit a Class 15
B or Class A felony; 16
(b) The defendant is in need of correctional treatment that can be provided most 17
effectively by commitment to a correctional institution; or 18
(c) A disposition under this chapter will unduly depreciate the seriousness of the 19
defendant's crime. 20
(4) The court shall not determine that there is a likelihood that the defendant will 21
commit a Class C or Class D felony based upon the defendant's risk and needs 22
assessment and the fact that: 23
(a) The defendant has never been convicted of, pled guilty to, or entered an 24
Alford plea to a felony offense; 25
(b) If convicted of, having pled guilty to, or entered an Alford plea to a felony 26
offense, the defendant successfully completed probation more than ten (10) 27
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years immediately prior to the date of the commission o f the felony for which 1
the defendant is now being sentenced and has had no intervening convictions, 2
pleas of guilty, or Alford pleas to any criminal offense during that period; or 3
(c) The defendant has been released from incarceration for the commission of a 4
felony offense more than ten (10) years immediately prior to the date of the 5
commission of the felony for which the defendant is now being sentenced and 6
has had no intervening convictions, pleas of guilty, or Alford pleas to any 7
criminal offense during that period. 8
(5) In making a determination under subsection (4) of this section, the court may 9
determine that the greater weight of the evidence indicates that there is a likelihood 10
that the defendant will commit a Class C or Class D felony. 11
(6) Upon initi al sentencing of a defendant or upon modification or revocation of 12
probation, when the court deems it in the best interest of the public and the 13
defendant, the court may order probation with the defendant to serve one (1) of the 14
following alternative sentences: 15
(a) To a halfway house for no more than twelve (12) months; 16
(b) To home incarceration with or without work release for no more than twelve 17
(12) months; 18
(c) To jail for a period not to exceed twelve (12) months with or without work 19
release, community service, and other programs as required by the court; 20
(d) To a residential treatment program for the abuse of alcohol or controlled 21
substances; 22
(e) To a reentry center for no more than twelve (12) months; or 23
(f) To any other specified counseling program, r ehabilitation or treatment 24
program, or facility. 25
(7) If during the term of the alternative sentence the defendant fails to adhere to and 26
complete the conditions of the alternative sentence, the court may modify the terms 27
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of the alternative sentence or may modify or revoke probation and alternative 1
sentence and commit the defendant to an institution. 2
(8) In addition to those conditions that the court may impose, the conditions of 3
alternative sentence shall include the following and, if the court determines t hat the 4
defendant cannot comply with them, then they shall not be made available: 5
(a) A defendant sentenced to a halfway house shall: 6
1. Be working or pursuing his or her education or be enrolled in a full -time 7
treatment program; 8
2. Pay restitution during the term of probation; and 9
3. Have no contact with the victim of the defendant's crime; 10
(b) A defendant sentenced to home incarceration shall: 11
1. Be employed by another person or self -employed at the time of 12
sentencing to home incarceration and continue th e employment 13
throughout the period of home incarceration, unless the court determines 14
that there is a compelling reason to allow home incarceration while the 15
defendant is unemployed; 16
2. Pay restitution during the term of home incarceration; 17
3. Enter a treatment program, if appropriate; 18
4. Pay all or some portion of the cost of home incarceration as determined 19
by the court; 20
5. Comply with other conditions as specified; and 21
6. Have no contact with the victim of the defendant's crime; 22
(c) A defendant sentenced to jail with community service shall: 23
1. Pay restitution during all or some part of the defendant's term of 24
probation; and 25
2. Have no contact with the victim of the defendant's crime; 26
(d) A defendant sentenced to a residential treatment program for drug and alcohol 27
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abuse shall: 1
1. Undergo mandatory drug screening during term of probation; 2
2. Be subject to active, supervised probation for a term of five (5) years; 3
3. Undergo aftercare as required by the treatment program; 4
4. Pay restitution during the term of probation; and 5
5. Have no contact with the victim of the defendant's crime; or 6
(e) A defendant sentenced to a reentry center shall: 7
1. Be employed in the community or wor king in a vocational program at 8
the reentry center; 9
2. Be enrolled in a treatment program; 10
3. Pay restitution, fees, and fines during the term of probation; and 11
4. Comply with other conditions as specified. 12
(9) When the court deems it in the best interest of the defendant and the public, the 13
court may order the person to work at community service related projects under the 14
terms and conditions specified in KRS 533.070. Work at community service related 15
projects shall be considered [as ]a form of conditional discharge. 16
(10) Probation with alternative sentence shall not be available as set out in KRS 532.045 17
and 533.060, except as provided in KRS 533.030(6). 18
(11) The court may utilize a community corrections program authorized or funded under 19
KRS Chapter 196 to provide services to any person released under this section. 20
(12) When the court deems it in the best interest of the defendant and the public, the 21
court may order the defendant to placement for probation monitoring by a private 22
agency. The private agenc y shall report to the court on the defendant's compliance 23
with his or her terms of probation or conditional discharge. The defendant shall be 24
responsible for any reasonable charges which the private agency charges. 25
(13) The jailer in each county incarcerat ing Class C or D felons may deny work release 26
privileges to any defendant for violating standards of discipline or other jail 27
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regulations. The jailer shall report the action taken and the details of the violation 1
on which the action was based to the court of jurisdiction within five (5) days of the 2
violation. 3
(14) The Department of Corrections shall, by administrative regulation promulgated in 4
accordance with KRS Chapter 13A , develop written criteria for work release 5
privileges granted under this section. 6
(15) Reimbursement of incarceration costs shall be paid directly to the jailer in the 7
amount specified by written order of the court. Incarceration costs owed to the 8
Department of Corrections shall be paid through the circuit clerk. 9
(16) The court shall enter into the record written findings of fact and conclusions of law 10
when considering implementation of any sentence under this section. 11
Section 7. KRS 640.010 is amended to read as follows: 12
(1) For children who are alleged to be youthful offenders under[by falling in the 13
purview of] KRS 635.020(2) to (8), the court shall at arraignment ensure that the 14
child's rights as specified in KRS 610.060 have been explained and followed. 15
(2) (a) In the case of a child alleged to be a youthful offender under[by falling within 16
the purview of] KRS 635.020(2) to (8), the District Court shall, upon motion 17
by the county attorney to proceed under this chapter, and after the county 18
attorney has consulted with the Co mmonwealth's attorney, conduct a 19
preliminary hearing to determine if the child should be transferred to Circuit 20
Court as a youthful offender. The preliminary hearing shall be conducted in 21
accordance with the Rules of Criminal Procedure. 22
(b) At the preliminary hearing, the court shall determine if there is probable cause 23
to believe that an offense was committed, that the child committed the 24
offense, and that the child is of sufficient age and has the requisite number of 25
prior adjudications, if any, necessary to fall within the purview of KRS 26
635.020. 27
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(c) If the District Court determines probable cause exists, the court shall consider 1
the following factors before determining whether the child's case shall be 2
transferred to the Circuit Court: 3
1. The seriousness of the alleged offense; 4
2. Whether the offense was against persons or property, with greater 5
weight being given to offenses against persons; 6
3. The maturity of the child as determined by his or her environment; 7
4. The child's prior record; 8
5. The best interests[interest] of the child and community; 9
6. The prospects of adequate protection of the public; 10
7. The likelihood of reasonable rehabilitation of the child by the use of 11
procedures, services, and facilities currently available to the juvenile 12
justice system; 13
8. Evidence of a child's participation in a gang; 14
9. Whether the child is a defendant with a serious intellectual disability as 15
defined in subsection (4) of this section [in accordance with KRS 16
532.130]; and 17
10. Whether the child used a firearm in the commission of the offense. 18
(d) If, following the completion of the preliminary hearing, the District Court 19
finds, after considering the factors enumerated in paragraph (c) of this 20
subsection, that two (2) or more of the factors specified in paragraph ( c) of 21
this subsection are determined to favor transfer, the child may be transferred 22
to Circuit Court, and if the child is transferred the District Court shall issue an 23
order transferring the child as a youthful offender and shall state on the record 24
the reasons for the transfer. The child shall then be proceeded against in the 25
Circuit Court as an adult, except as otherwise provided in this chapter. 26
(e) If, following completion of the preliminary hearing, the District Court 27
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determines[is of the opinion] , af ter considering the factors enumerated in 1
paragraph (c) of this subsection, that the child shall not be transferred to the 2
Circuit Court, the case shall proceed under[be dealt with as provided in] KRS 3
Chapter 635. 4
(3) If the child is transferred to Circuit Court under this section and the grand jury does 5
not find that there is probable cause to indict the child as a youthful offender, as 6
defined in KRS 635.020(2) to (8), but does find that there is probable cause to 7
indict the child for another criminal off ense, the child shall not be tried as a 8
youthful offender in Circuit Court but shall be returned to District Court to 9
proceed[be dealt with] as provided in KRS Chapter 635. 10
(4) As used in this section: 11
(a) "Serious intellectual disability" means significan tly subaverage general 12
intellectual functioning existing concurrently with substantial deficits in 13
adaptive behavior and manifested during the developmental period; and 14
(b) "Significantly subaverage general intellectual functioning" means an 15
intelligence quotient or I.Q. of seventy (70) or below. 16
Section 8. KRS 640.040 is amended to read as follows: 17
(1) A[No] youthful offender who has been convicted of a capital offense shall not[who 18
was under the age of sixteen (16) years at the time of the commission of the offense 19
shall be sentenced to capital punishment. A youthful offender may be sentenced to 20
capital punishment if he was sixteen (16) years of age or older at the time of the 21
commission of the offense. A youthful offend er convicted of a capital offense 22
regardless of age may be sentenced to a term of imprisonment appropriate for one 23
who has committed a Class A felony and may] be sentenced to life imprisonment 24
without benefit of parole[ for twenty-five (25) years]. 25
(2) A[No] youthful offender shall not be subject to persistent felony offender 26
sentencing under [the provisions of ] KRS 532.080 for offenses committed before 27
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the age of eighteen (18) years. 1
(3) A[No] youthful offender shall not be subject to limitations on probat ion, parole or 2
conditional discharge as provided [for ]in KRS 533.060. 3
(4) Any youthful offender convicted of a misdemeanor or any felony offense which 4
would exempt him or her from KRS 635.020(2) to[, (3), (4), (5), (6), (7), or] (8) 5
shall be disposed of b y the Circuit Court in accordance with [the provisions of 6
]KRS 635.060. 7
Section 9. The following KRS sections are repealed: 8
431.213 Definitions for KRS 431.213, 431.2135, and 431.240. 9
431.2135 Procedure for challenging condemned person's sanity. 10
431.218 Date of execution of condemned -- Copy of mandate to proper officer. 11
431.220 Execution of death sentence. 12
431.223 Method of execution in event of unconstitutionality of KRS 431.220. 13
431.224 Retroactive applicability. 14
431.240 Time of execution -- Governor to fix time in case of insanity, pregnancy, or 15
escape -- Administrative hearings -- Transfer to forensic psychiat ric facility in case 16
of insanity. 17
431.250 Persons who may attend executions. 18
431.260 Warden's return on judgment. 19
431.270 Delivery or burial of body. 20
507A.060 Death sentence prohibited. 21
532.025 Presentence hearings -- Use of juvenile court record s -- Aggravating or 22
mitigating circumstances -- Instructions to jury. 23
532.075 Review of death sentence by Supreme Court. 24
532.130 Definitions for KRS 532.135 and 532.140. 25
532.135 Determination by court that defendant has a serious intellec tual disability or 26
serious mental illness. 27
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532.140 Defendant with a serious intellectual disability or serious mental illness not 1
subject to execution -- Authorized sentences. 2
532.300 Prohibition against death sentence being sought or given on the basis of race -- 3
Procedures for dealing with claims. 4
532.305 Application of KRS 532.300. 5
532.309 Short title for KRS 532.300 to 532.309. 6