Policy Pronouncements - HB 463

In all motions arguing for application of the new statute, the stated policies of the legislature should be cited.


New Section of KRS 532

It is the sentencing policy of the Commonwealth of Kentucky that:
(1) The primary objective of sentencing shall be to maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced;
(2) Reduction of recidivism and criminal behavior is a key measure of the performance of the criminal justice system;
(3) Sentencing judges shall consider:

(b) The likely impact of a potential sentence on the reduction of the defendant's potential future criminal behavior;

Observation - Under what situations would sentencing a defendant to prison improve the outcome for the defendant? Rarely, one would think. Unless prison is necessary to maintain public safety, community supervision with appropriate conditions will usually best meet the stated “sentencing policy of the Commonwealth of Kentucky.”


Practice Tip – Be prepared to argue Separation of Powers if a judge decides not to follow the legislatively enacted sentencing policy of the Commonwealth. Under Section 28 of the Kentucky Constitution, no branch of government may exercise power belonging to another branch. “Sentencing policy” is clearly within the exclusive jurisdiction of the legislative branch and it is for the judicial branch to apply the law as written.


New Section of KRS 218A
The General Assembly hereby finds, determines, and declares that:

(1) The regulation of controlled substances in this Commonwealth is important and necessary for the preservation of public safety and public health; and
(2) Successful, community-based treatment can be used as an effective tool in the effort to reduce criminal risk factors. Therapeutic intervention and ongoing individualized treatment plans prepared through the use of meaningful and validated research-based assessment tools and professional evaluations offer a potential alternative to incarceration in appropriate circumstances and shall be used accordingly.

Included in New Section of KRS 532 (above)

It is the sentencing policy of the Commonwealth of Kentucky that:


(4) All supervision and treatment programs provided for defendants shall utilize evidence-based practices to reduce the likelihood of future criminal behavior


KRS 446.010 Definitions for statutes generally

(15) "Evidence-based practices" means policies, procedures, programs and practices proven by scientific research to reliably produce reductions in recidivism when implemented competently.
Throughout the bill, “evidence-based practices” is a point of emphasis. Pretrial release, probation and parole supervision, and all decisions throughout should be based upon evidence. Myths and personal opinions are not sufficient to support decisions made under any provision of the bill.

Contributed by Damon Preston

the  bill.

Retroactivity and HB 463

Defendants with pending cases on or after June 8, 2011 should be able to “opt in” to applicable provisions of HB 463.
446.110 Offenses committed and rights accruing prior to repeal of law.

No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.

Two requirements must be met for a defendant to be entitled to have the new law applied to him:

1. Prior penalties under the law have to be “clearly mitigated” by the new law, and

2. The defendant has to give unqualified consent to having the new law applied to his case.

Commonwealth v. Phon, 17 S.W.3d 106 (Ky. 2000); Rogers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009)
Formal written motions should be filed to ensure the benefits of the new legislation or to preserve any issue relating to applicability of the new law. The motion should explain why the new provision is “clearly mitigating” and express the unqualified consent of the defendant to the application of the new provision.

Contributed by Damon Preston

HB 463 Official Certified Copy Now Available

Most of the provisions of historic House Bill 463 become effective today.  Representing one of the most sweeping and comprehensive reforms of the criminal justice system in Kentucky in decades, the legislation is based on models which evidence shows have been effective in other states in not only lowering systemic costs but lowering recidivism as well. 

Here is the certified copy and all the statutes effected by HB 463 which are either already in effect or go into effect today.  Once legislation is passed it goes to the revisor of statutes to codify the legislated amendments and additions into the statutes effected by that legislation.  The only “official” or “final” copy of what those new or amended statutes look like belongs to the revisor of statutes.  These are all the statutes effected by HB 463 in their new and final form, including the emergency provisions regarding conditional discharge revocations and those which take effect today.  Those sections which will not take effect till 2012, 2013, etc. are NOT included.  The revisor of statutes has also provided a copy of his certification of the accuracy/authenticity of this copy of the newly revised statutes (he will keep the original on file in his office, as it says in the certification).

The statutes you’ll want to look at first include the KRS 218A statutes, KRS 431 statutes, KRS 532.080, and KRS 534.   

Contributed by Glenn McClister

Other HB 463 related resources

June 2011 Edition of The Advocate Newsletter

DPA District Court Manual (updated to include HB 463)

Stay tuned to this blog or subscribe to updates through email, Twitter or Facebook for more news about HB 463 implementation. 

 

DPA District Court Manual Now Updated to Include HB 463 Other New Legislation

The third edition of the District Court Manual (47 pages) is now available. 

Revised to include the new pretrial risk assessment scoring used by AOC as of March 1, 2011 and to include all the new provisions of HB121 and HB463 which apply to district court practice – including the very important new provisions regarding arrest, bail and the changes to enhanceable offenses.  The relevant caselaw is up to date and new sections on appealing bail in district court and on earning credit toward old fines and costs under HB 463 have also been included.

Contributed by Glenn McClister  

Kentucky Penal Code Reform Bill Filed

Newspaper coverage of the bill

Louisville Courier Journal  Bills aim to cut prison costs, improve drug treatment

Lexington Herald Leader Kentucky drug laws would change under new proposal

Below is a summary of the bill by former Public Advocate Ernie Lewis ( caveat - I have been reviewing numerous drafts, and could easily have made a mistake in the summary. If you have a question about a provision, please go online to read the entire bill.) HB 463 and SB 161

There are several very progressive reforms undertaken in this legislation, including the following:

  • Establishes quantities for trafficking in controlled substances.
  • Changes the 1000 yards to 1000 feet in 218A.141.
  • Eliminates the enhancer for possessory drug offenses. 
  • Lowers penalties for trafficking 2nd, creating a mini-Class D for first offenses.
  • Lowers penalties for trafficking 3rd.
  • Lowers penalties for possession 1st to a mini-Class D.
  • Creates deferred prosecution as a preferred alternative for possession 1st cases and 2nd, with presumptive probation as the other alternative.   Presumptive probation is required for second offenses unless the person is ineligible.
  • Marijuana possession is a Class B misdemeanor punishable by 1-45 days.
  • Significant changes are made to pretrial release.  For example, if presumptive probation is the possible sentence, the court must release the defendant on an OR or unsecured bond unless written findings are made.
  • Deferred prosecutions are created similar to pretrial diversion.
  • Evidence based practices, including the use of risk and needs assessments, permeate the bill.  This is especially so for probation and parole. 
  • Changes are made to eliminate double enhancements.  Possession cannot be PFO'd, although it can be used as a prior.
  • Citations will be required for all Class B misdemeanors and most Class A misdemeanors. 
  • Pretrial release is changed significantly.  If a person is indigent he must be released on an OR or unsecured bond unless he is not a flight risk, a danger to himself or others, or unlikely to appear for trial. 
  • A system of graduated sanctions is created for persons on probation and parole whereby revocations won't have to take place.  Probation and Parole will also have an administrative caseload with lesser supervision and an early means of termination for persons on probation.