December 2012 Advocate - Proposed Revisions to Kentucky Juvenile Code
is now available here.

is now available here.
Prosecutors view the harsher penalties as a tool to crack down on career criminals and counteract the effects of early-release programs.
But since 1980, the number of state inmates sentenced under the PFO law has grown from 79 to more than 4,000, costing Kentucky taxpayers nearly $89 million in incarceration costs each year. Critics say that’s too much, given the state’s budget problems.
“We really can’t afford to continue this policy,” said Ed Monahan, head of the Kentucky Department of Public Advocacy.
The department, long opposed to the 35-year-old law, hopes to make its most forceful push to date for “modest adjustments” during the 2012 legislative session.
...
“Our major point is, this is costing Kentucky a lot of money and it is being applied to inmates who don’t fit the criteria of being incorrigible,” he said. “We ought to start to make modest adjustments that won’t in any way affect public safety.”
click here for complete article
Definition
KRS 446.010 Definitions for statutes generally
(33) "Pretrial risk assessment" means an objective, research based, validated assessment tool that measures a defendant's risk of flight and risk of anticipated criminal conduct while on pretrial release pending adjudication.
Use of the assessment tool is required. Courts should not be able to detain accused persons pretrial based on a personal opinion or an intention to punish the defendant for a crime of which he has not yet been convicted.
Limits on Pretrial Incarceration
New Section of KRS 431
In considering pretrial release, courts shall consider three factors:
If the defendant is LOW risk, LIKELY to appear for trial, and NOT LIKELY to be a danger to others, the court shall order the defendant released on ROR or unsecured bond.
If the defendant is MODERATE risk of flight, nonappearance, or danger to others, the court shall order defendant released on ROR or unsecured bond, but shall consider ordering GPS monitoring, drug testing, increased supervision, or other conditions.
KRS 431.525 Conditions for establishing amount of bail
Maximum Amount of Pretrial Bond for Misdemeanors
When a person is charged with one or more misdemeanors, bail shall be a single amount no higher than the fine and costs for a single count of the highest misdemeanor charged. This only applies if charged misdemeanors do not involve physical injury or sexual contact.
New Section of KRS 218A
Any statute to the contrary notwithstanding, a person charged with a 218A offense which may result in presumptive probation (i.e. Possession of Controlled Substance First Degree or Trafficking Controlled Substance Third Degree) shall be released on ROR bond or unsecured bond unless he is found to be flight risk or danger to self or others. If he is not released, the court shall document the reasons in a written order.
Bail Credit for Pretrial Incarceration
Included in the New Section of KRS 431
Regardless of amount of bail, court shall permit credit of $100 per day toward bail, for each day or portion of day in jail. Upon service of sufficient days to satisfy bail, court shall order release. The jailer is responsible for tracking credit.
Release does not happen automatically, but the court must “order the defendant released” after “service of sufficient days in jail”. This means attorneys might need to file motions, depending on a judge’s practices. It will also likely raise client phone calls and complaints for extra days served unless an efficient system for release is developed.The Bail Credit does not apply to anyone found to be a flight risk or danger to others. It also does not apply to anyone convicted (not charged) of:
If a defendant is not released, the court shall document reasons in a written order.
Practice Tip: The Bail Credit does apply in felony cases. Attorneys will want to compare bonds after the effective date of the statute to the historical bonds of a court. If a court that traditionally set a $5000 bond for an offense suddenly starts setting $25,000 bonds for the same offense, it should be challenged as an attempt by the court to circumvent the Bail Credit.
Observation: The amended 431.525 and the new section of KRS 431 appear to be inconsistent. Under the new section, non-financial bond is required unless the defendant is found to be a high (i.e. not low or moderate) risk of flight, non-appearance, or danger. The limits on pretrial bail in 431.525 and the bail credits would only arise when financial bail is permissible, but then specifically do not apply if the defendant is a flight risk or danger. It would seem any defendant who is not a flight risk/danger would be entitled to ROR/unsecured and any defendant who is a flight risk/danger would not be entitled to the limits or credit.
New Guidelines Coming…
New Section of KRS 27A (Court of Justice)
The Supreme Court shall establish guidelines for judges to use for defendants whose pretrial risk assessments are moderate or high risk, both those who would be ordered to jail and those who are eligible for supervision.
Judges shall consider the guidelines.
The clear intent is that the Supreme Court will provide guidance so that even moderate and high risk defendants may be released with conditions.
Overall Observation of Pretrial Release Changes: Aggressive bail appeals under Rule of Criminal Procedure 4.43 will be necessary. If the new laws are applied as written, pretrial detention will be reduced significantly. Unless their practices were already very favorable to pretrial release, courts that do not change detention practices will either be in violation of the new laws or bending the new laws to fit their current practices. Either way, appellate review should be sought often and early to establish consistent implementation of the law, hopefully as the legislature intended.
Contributed by Damon Preston
Complete Overview and Commentary: House Bill 463 - Public Safety and Accountability Act provided to participants today at DPA's 2011 Annual Conference.
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.
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.
Contributed by Damon Preston