KY COA Nov 30 - Andrews - HB 463 and Probation

Andrews v. Commonwealth, 2011-CA-001360, Not to be published, -

The trial court revoked Andrews probation when it found a single positive drug test made him a significant risk to the community and that he could not be managed within the community.  After Andrews failed the drug test, he checked himself into a treatment center and was doing well.  The trial court revoked Andrews probation.

The Court of Appeals reversed, finding that HB 463 has a particular emphasis on using treatment to rehabilitate offenders and decrease overall costs, and that a failure to comply with a condition of probation is no longer sufficient to automatically justify revocation of probation. 

The Commonwealth must now prove by a preponderance of the evidence that the probationer poses a significant threat to prior victims or the community and cannot be managed in the community. Here, Andrews was doing well on probation (except for single drug test failure) and doing well in a community-based treatment program. The Court also took issue with the trial judge’s consideration of Andrew’s initial denial of his need for treatment: “Andrews should not be barred from accessing treatment now simply because he previously denied he had a substance abuse problem or needed treatment.  If we were to allow revocation of probation under these circumstances, it would negate the entire statutory change to the probation revocation process and the purposes underlying House Bill 463.”

Contributed by Shannon Smith

 

Kentucky Pretrial Services Legislative Impact Report

Kentucky Pretrial Services recently published, Report on Impact of House Bill 463: Outcomes, Challenges and Recommendations. The purpose of the report is to measure the impact of HB 463, which implemented sweeping changes to many aspects of the criminal justice system in Kentucky. The report examined data a year prior and a year after implementation and found that as the number of monitored conditional releases went up, pretrial failures decreased. 

Herald-Leader article about early release and HB 463

Early releases will put penal code reform to test - Lexington Herald-Leader

It has been nearly six months since the most sweeping changes to Kentucky's penal code in decades, but the first major test of the philosophy behind them will begin Tuesday when nearly 1,000 state prisoners are granted early release.

House Bill 463, the comprehensive and controversial overhaul that became state law June 8, was intended to save more than $40 million a year in Department of Corrections costs, with a large chunk of those savings being reinvested in community supervision and counseling programs to keep prisoners from ending up back behind bars on the taxpayers' dime.

The prisoners released Tuesday will be monitored by the department of probation and parole for the last six months of their sentences. If successful, the state could see millions of dollars in savings from the first batch of releases alone.

The average yearly cost to incarcerate a state prisoner in Kentucky is $21,906, according to data from the Department of Corrections. The average cost to supervise out-of-custody criminals is a fraction of that — $987.Savings probably won't be calculable until later this year, Kentucky Justice Cabinet Secretary J. Michael Brown said. Other portions of the bill are still works in progress.


Louisville Courier-Journal article about proposed amendments to PFOs

Public defenders seek changes to Kentucky repeat-offender law - Louisville Courier Journal

 

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

 

 

KY To Release 1,000 Inmates Six Months Early Under New Law - Louisville Courier Journal

996 Kentucky inmates get out early in new prison plan

Easing transition, fighting recidivism are main goals

Kentucky is poised to release nearly 1,000 inmates about six months early as part of a mandatory new program aimed at easing their transition back into the community, reducing recidivism and helping trim its corrections budget by about $40 million next year.

 By providing support in such areas as finding jobs and homes in their first few months outside prison, the new program — part of a major corrections overhaul passed earlier this year — attempts to lessen the chances that offenders will commit new crimes, Justice Cabinet Secretary J. Michael Brown said.

Fundamentals of Evidence-Based Policy-Making

Evidence-based policy-making is an attempt to identify and adopt policies scientifically proven to achieve desired results.  In the area of criminal justice, the ultimate goal is to reduce crime while at the same time reducing spending.  Believe it or not, this has been accomplished in many states.

So what are the fundamentals of evidence-based policy making in the criminal justice system?  What principles result in less crime at lower cost? Here they are:

  • Sort offenders scientifically by risk – Save the expensive jail and prison space for people who are statistically high risk.  In bond decisions, sentencing decisions, and parole board decisions, seek to avoid incarceration of low and moderate risk individuals and adopt community-based alternatives instead.
  •  Base intervention programs on science – Literally thousands of programs all over the country have been studied and evaluated for their success in reducing things such as failure to appear, committing new crimes while out on bail, and recidivism after re-entry into the community.  The research is ample and best practices are being identified.  Just as an example, the research is clear that most programs need to invest more in supervision of people identified as high risk and less in supervision of low and moderate risk individuals.  Implementation of evidence-based practices results in average decrease in crime of 10 to 20 percent.
  • Harness technology – Technological innovations have made supervision of people before trial, on probation, or on parole, much easier and effective.
  • Make sanctions for violations certain and proportionate – Probation officers with high caseloads, a lack of a range of appropriate sanctions, and who have to go through administrative hurdles to get a sanction imposed,  often delay seeking sanctions until a really serious offense has been committed.  HB 463 introduces a mandate for graduated sanctions to be imposed on those who violate probation or parole and gives courts the ability to grant probation officers the authority to impose those sanctions without prior approval of the court for each violation.  This reduces delay, reduces time probation officers have to spend in court, and reduces time violators spend in jail.
  • Measure progress – Ways must be identified and adopted to measure progress throughout the entire criminal justice system.  Which jails, prisons are saving money?  What is happening to the recidivism rate?  Which circuits or districts are reducing failure to appear among those released prior to trial?  How many more people are paying restitution?  How many more people are completing treatment in community-based services rather than being incarcerated? 
  • Create incentives for success -  HB 463 contains provisions for creating incentives for success at many levels – that of the individual probationer or parolee, of a circuit or district court, of statewide programs.

For  a more extensive discussion of these principles and their use see the Kentucky Task Force on the Penal Code and Controlled Substances Act Report

Contributed by Glenn McClister

Pretrial Release and HB463

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:

  •  Is the defendant a flight risk?
  •  Is the defendant unlikely to appear for trial?
  •  Is the defendant likely to be a danger to the public if released?

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.

Maximum Amount of Bail on Appeal
If a person is convicted of a misdemeanor that does not involve physical injury or sexual contact and sentenced to a sentence other than a fine only, bail for release on appeal shall not exceed double the amount of the maximum fine for one count of the highest misdemeanor. If the person was sentenced to a fine only, bail for release on appeal shall not exceed the amount of the fine.
The limits herein shall not apply if the defendant is found to be flight risk or danger to others, but a court denying release based on these factors much document the reasons for the denial in a written order.

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:

  • a felony sex offense (KRS 510),
  • 529.100 (Human Trafficking involving commercial sexual activity),
  • 530.020 (Incest),
  • 530.064(1)(a)(Unlawful Transaction with a Minor (Sex)),
  • 531.310 (Use of Minor in Sexual Performance), or
  • 531.320 (Promoting Sexual Performance by Minor),
  • Or who is a Violent Offender.

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. 

Background: HB 463 as Evidence-Based Policy-Making

It is evident to anyone who surveys the contents of HB 463 that it is a penetrating reform affecting almost every facet of the criminal justice system.  But it is more than that.  It is, in fact, the instantiation of a coherent set of policy decisions which all have one thing in common:  they have been proven to work.  The best way to understand why HB 463 makes the changes it does is to understand HB 463 as a model of evidence-based policy-making.

Evidence-based policy-making is being applied throughout the criminal justice system nationwide - from best ways to deal with status offenders in juvenile court to best practices in re-entry of adult offenders back into the community.  The PEW Center for the States helps states to identify evidence-based policies and incorporate those policies into effective legislation. 

Here is a link to their report on Kentucky.  The final report of the Kentucky Task Force on the Penal Code and Controlled Substances Act, incorporating PEW suggestions into the Kentucky justice system, can be found here.  (Note: HB 463 did not include every recommendation in the report.)

Contributed by Glenn McClister

 

Louisville Courier Journal Article on Impact of HB 463 on Misdemeanor Arrests

New law will reduce arrests for misdemeanors in Kentucky

Under a new law designed to ease jail overcrowding, police officers will have to issue citations rather than make arrests for dozens of misdemeanors, as long as they believe the suspect is no danger to himself or others and will appear in court to answer the charge.

The law also reduces some felony drug charges to misdemeanors that require citations rather than arrest, such as second-degree possession of a controlled substance.

The changes were pushed by advocates who say there typically is no reason for people charged with misdemeanor crimes to spend time in jail, with taxpayers footing the bill.