2011 REGULAR SESSION HB 463 PENAL CODE AND CONTROLLED SUBSTANCES LEGISLATION Full text of the bill:

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1 2011 REGULAR SESSION HB 463 PENAL CODE AND CONTROLLED SUBSTANCES LEGISLATION Full text of the bill: SECTION 1. -description of reasoning behind legislation SECTION 2. -primary objective of legislation: hold offenders accountable while reducing recidivism and improving outcomes for offenders. SECTION 3. (p. 2-7) -definitions for bill SECTION 4. -description of reasoning behind controlled substances portion of bill. SECTION 5. (P. 8-17) -definitions for controlled substances portion of bill, including presumptive probation, dosage unit, and recovery program. SECTION 6. (p ) -amends KRS 218A.140 regarding No person shall dealing with controlled substances laws. SECTION 7. (p. 18) -amends KRS 218A.1404 trafficking/distribute/prescribe/possess to change current language that states and a Class D felony for subsequent offenses. SECTION 8. (p. 19) -amends KRS 218A.1411 to reduce from 1,000 yards down to 1,000 feet the prohibition of trafficking controlled substance near a school. TRAFFICKING IN A CONTROLLED SUBSTANCE Sections 9-11 SECTION 9. (p. 19) -amends KRS 218A.1412 relating to trafficking in a controlled substance, 1st degree, including reductions in the felony class for violations. -Quantities: 4 or more grams cocaine, 2 or more grams of heroin/methamphetamine; 10 or more dosage units of a controlled substance, Schedule I/II; any quantity of GHB or flunitrazepam. SECTION 10. (p ) -amends KRS 218A.1415 relating to trafficking in a controlled substance, 2 nd degree, including reductions in the felony class for violations. -quantities include trafficking in 10 or more dosage units of a controlled substance, Schedule III, and Schedule II-nonnarcotic; or 20 or more dosage units in Schedule III; prescribes/distributes/sells/supplies anabolic steroid; any quantity of a controlled substance less than amounts specified above. Page 1 of 11

2 SECTION 11. (p. 21) -amends KRS 218A.1414 relating to trafficking in a controlled substance, 3 rd degree, including reductions in the felony Class for violations; -quantities include 20 or more dosage units, Schedule IV/V; any quantity in an amount less than the amount specified above. POSSESSION/THEFT Sections SECTION 12. (p. 22) -amends KRS 218A.1415 relating to possession of a controlled substance, 1 st degree, including reductions in the felony Class for violations; -maximum incarceration no greater than 3 years -first or second time offenders may be subject to deferred prosecution per Sec. 20 of this bill, or presumptive probation; the deferred prosecution shall be the preferred alternative for first offense; -if first or second time offenders opt out of deferred prosecution, shall be subject to presumptive probation, if eligible as determined by court. SECTION 13. (p. 23) -amends KRS 218A.1416 relating to possession of a controlled substance, 2 nd degree. -all violations are reduced to a Class A misdemeanor. SECTION 14. (p. 23) -amends KRS 218A.1417 relating to possession of a controlled substance, 3 rd degree. -all violiations are reduced to a Class A misdemeanor. SECTION 15. (p ) -amends KRS 218A.1418 relating to theft of a controlled substance to a Class D felony, no matter the value. SECTION 16. (p. 24) -amends KRS 218A.1422, relating to possession of marijuana -reduces violation down to Class B misdemeanor and caps incarceration at 45 days or less. SECTION 17. (p. 24) -amends KRS 218A.1427, relating to possession of synthetic cannabinoid and reduced to Class B misdemeanor -caps incarceration at 45 days or less. SECTION 18. (p ) -amends KRS 218A.1451, relating to possession of salvia -caps incarceration at no greater than 30 days. PRESUMPTIVE PROBATION, DEFERRED PROSECUTION and RISK/NEEDS ASSESSMENTS-Sec SECTION 19. (p. 25) -creates a new section of KRS 218A: a defendant charged with 218A offenses for which a conviction may result in presumptive probation, shall be placed on pretrial release on their own recognizance or unsecured bond -shall not apply to defendants who are flight risks or a danger to self or others; -if defendant shall not be released, court must document denying release. Page 2 of 11

3 SECTION 20. (p ) -creates a new section of KRS 218A: delineates deferred prosecution program provisions. SECTION 21. (p ) -amends KRS 218A.275, relating to risk and needs assessments performed by Div. of Probation & Parole for violations pursuant to Sections of this Act, recovery/treatment programs, and sealing records of a voided conviction under this section. SECTION 22. (p ) -amends KRS 218A.276, relating to risk and needs assessments performed by Div. of Probation & Parole for anyone found guilty of possession of marijuana or possession of synthetic cannabinoid or salvia, recovery/treatment programs and sealing of records of a voided conviction under this section. USE OF ANY IDENTIFIED COST SAVINGS-Sections SECTION 23. (p ) -creates a new section of KRS 196, relating to measuring and documenting cost savings of Sections 5-22 of this Act, which shall be reinvested or distributed as provided. SECTION 24. (p ) -creates a new section of KRS 196, requiring a portion of any savings identified to be used to expand treatment programs at state penal institutions. DRUG COURT SECTION 25. (p. 35) -creates a new section of KRS 26A, relating to drug court programs. PERSISTANT FELONY OFFENDERS SECTION 26. (p ) -creates a new section of KRS 26A, relating to post-incarceration supervision for persistent felony offenders. -subsection (8): a conviction, guilty plea or Alford plea under Section 12 cannot trigger the PFO, regardless of prior felony convictions. However a conviction, guilty plea or Alford plea may be used as prior felony offense, triggering the PFO, if they are subsequently convicted of a different felony. USE OF INITIAL RISK AND NEEDS ASSESSMENT SECTION 27. (p ) -amends KRS , requires DOC to promulgate administrative regulations for administration of a validated risk and needs assessment to assess criminal risk factors and correctional needs of all inmates upon commitment to D.O.C. RELEASE OF TERMINALLY ILL INMATES SECTION 28. (p ) -amends KRS relating to terminally ill inmates. Allows for D.O.C. s medical director, and not each warden, to recommend release of such inmates. Page 3 of 11

4 PROBATION & PAROLE Sections SECTION 29. (p ) -amends KRS ; defines community supervision, compliance credit, positive reinforcement, probation and parole district supervisor and supervised individual. SECTION 30. (p. 45) -creates a new section of KRS establishing a risk and needs assessment of all parole-eligible inmates. SECTION 31. (p. 45) -amends KRS , requiring the Parole board to use risk and needs assessment results along with other scientific means of personality analysis to define terms and intensity of paroled supervision. SECTION 32. (p ) -amends KRS , relating to terms of parole eligibility and notifying all with longer than 90 days to serve shall be considered for parole not less than 60 days prior to eligibility date; conditional parole upon completion of a program; caps deferment of a non-violent/non-sexual Class C or D at 24 months; all others, not greater than 5 years unless approved by majority of full board; none shall exceed 10 years except for life sentences. SECTION 33. (p ) -creates a new section of KRS , requires parole board to reconsider parole of any prisoner as of effective date of this Act who received deferment/serve-out of 61+ months at most recent hearing unless approved by majority of full board or a violent or sex crime. SECTION 34. (p ) -creates a new section of KRS relating to mandatory reentry supervision and terms for inmate not granted discretionary parole 6 months prior to minimum expiration of sentence. Exclusions delineated. SECTION 35. (p. 53) -creates a new section of KRS 532, relating to those inmates subject to a period of post-incarceration supervision following release from incarceration. SECTION 36. (p. 54) -amends KRS , relating to new mandatory and optional sentence credits. POST-CONVICTION RISK AND NEEDS ASSESSMENT AND SUPERVISION-Sections SECTION 37. (p ) -amends KRS relating to the assessment and credit for time served. SECTION 38. (p ) -amends KRS , relating to sexual offenses, requires 5 years post-incarceration supervision. SERVING TIME IN COUNTY JAILS-Sections SECTION 39. (p ) -creates a new section of KRS allowing for placement of conditionally paroled inmates in county jails or correctional facilities closer to their communities prior to release. May qualify for work release. Page 4 of 11

5 SECTION 40. (p ) -amends KRS , codifies current budget language allowing non-violent/non-sexual offenders sentenced to more than 5 years but have less than 5 years remaining, may serve it in a county jail. HOUSING FOR PAROLEES SECTION 41. (p. 64) -creates a new section of KRS : acceptable forms of housing options for parolees. SECTION 42. (p.64) -creates a new section of KRS 532: acceptable housing for prisoners considered or actually granted conditional release pursuant to Section 43 of this Act. RELEASE WITH NINE MONTHS OR LESS SECTION 43. (p ) -amends KRS : nine months or less to serve may serve out under home incarceration, conditional release to a housing alternative. JUDICIAL GUIDELINES FOR PRETRIAL RELEASE SECTION 44. (p ) -creates new section of KRS 27A: recommended guidelines for judges ordering pretrial release and monitored conditional release. SECTION 45. (p.66) -creates a new section of KRS 431: ordering GPS as condition of pretrial release. CITABLE OFFENSES SECTION 46. (p ) -amends KRS to allow for citable, rather than arresting, offenses. Exclusions apply. MAXIMUM BAIL AMOUNTS SECTION 47. (p ) -amends KRS , relating to caps on amount of bail. PER-DAY CREDIT FOR BAIL SECTION 48. (p. 69) -creates a new section of KRS 431: pretrial credit-per-day for payment toward bail. EVIDENCE-BASED PRACTICES-Sections SECTION 49. (p ) -creates a new section of KRS 27A: evidence-based practices for supervision and intervention programs from vendors. 4-year phase-in of using only evidence-based practices. Page 5 of 11

6 SECTION 50. (p ) -creates a new section of KRS 196: evidence-based practices for treatment and intervention programs provided by D.O.C. Includes a 4-year phase-in of using only evidence-based practices. SECTION 51. (p.73-74) -creates a new section of KRS : supervision and treatment of supervised individuals must use evidencebased practices. SECTION 52. (p. 74) -creates a new section of KRS : training of D.O.C. employees on evidence-based practices. SECTION 53. (p ) -creates a new section of KRS , requiring D.O.C. to report annually to Governor/General Assembly/Chief Justice the implementation of evidence-based practices to reduce recidivism. SECTION 54. (p. 75) -creates a new section of KRS , requiring initial and continuing risk and needs assessment upon intake to community supervision. PAROLE, VIOLATIONS AND SANCTIONS-Sections SECTION 55. (p ) - creates a new section of KRS : compliance credits for parolees. SECTION 56. (p. 76) - creates a new section of KRS : graduated sanctions for technical parole violations. SECTION 57. (p ) - creates a new section of KRS : regulations for early termination of probation. SECTION 58. (p ) - creates a new section of KRS : regulations for new caseload supervision program for low-risk offenders. SECTION 59. (p. 79) -creates a new section of KRS : supervised individuals subject to violation revocation hearings and sanctions. SECTION 60. (p ) -creates a new section of KRS : graduated sanctions for violating community supervision. SECTION 61. (p. 80) -creates a new section of KRS : court of jurisdiction can impose graduated sanctions. SECTION 62. (p ) -creates a new section of KRS : imposing graduated sanctions including detention for a limited amount of time. Page 6 of 11

7 SECTION 63. (p. 82) -creates a new section of KRS : allows for quarterly review by supervisor of all Probation & Parole officers on sanctions imposed. SECTION 64. (p ) -creates a new section of KRS 27A: annual report by Chief Justice on recidivism efforts. SECTION 65. (p ) -amends KRS relating to Justice Cabinet s data on parole, post-release supervision recidivism. SECTIN 66. (p. 85) -amends KRS 27A.470 relating to AOC reports. SECTION 67. (p. 85) -creates a new section of KRS 196: D.O.C. online system of offenders for use in sentencing. SECTION 68. (p ) -creates a new section of KRS 196: cost savings determined by D.O.C. and their distribution/reinvestment. LOCAL CORRECTIONS ASSISTANCE FUND-Sections SECTION 69. (p. 88) -creates a new section of KRS 196: establishes the Local Corrections Assistance Fund. SECTION 70. (p ) -amends KRS : allocates 25% of savings to the LCAF; some in expanded treatment and probation and parole services, and additional pre-trial services and drug court. PILOT PROJECT FOR COMMUNITY CORRECTIONS-Sections SECTION 71. (p ) -creates a new section of KRS : pilot projects for community corrections programs. SECTION 72. (p ) -creates a new section of KRS to reinvest 50% of any savings from the pilot projects back into community corrections fund. That is split evenly between community corrections and Probation & Parole. -remaining 50% goes into General Fund. SECTION 73. (p. 92) -creates a new section of KRS 196: KY State Corrections Commission annual report on pilot projects. SECTION 74. (p ) -creates a new section of KRS 6: any bill, amendment, regulation impacting corrections costs in any way mentioned in this Act shall include a Corrections Impact Statement. Page 7 of 11

8 MEDICAID RATE/CATASTROPHIC THRESHOLD/BILLING STATE FOR MEDICAL/INDIGENCY AFFIDAVIT/NECESSARY CARE AFFIDAVIT-Sections SECTION 75. (p ) -amends KRS relating to: Medicaid rate for medical providers of inmates. -lowers catastrophic fund threshold from $2K to $1K. -state has 90 days to pay providers; after that, county will be billed by provider. -affidavit of indigency or appointment of a public defender will serve as proof of indigency. - necessary care shall be determined by D.O.C. medical director. SECTION 76. (p ) -amends KRS relating to D.O.C. Correct Care terms being limited to Medicaid rate or lower. CERTIFICATE OF NEED FOR JAILS-Sections SECTION 77. (p.104) -creates a new section of KRS : beginning section outlining certificate of need process for new jail or new bed space. SECTION 78. (p ) -amends KRS : no jail can build new facility unless approved by the Local Correctional Facility Construction Authority. -100/300/500 bed plans shall be provided by D.O.C. SECTION 79. (p ) -amends KRS : details the application process. SECTION 80. (p. 107) -amends KRS : change plans to approved construction. SECTION 81. (p ) -amends KRS : any remodeling/reconstruction must also apply if square footage increases. -requires minimum 100 bed facility. SECTION 82. (p ) -amends KRS requiring Local Correctional Facility Construction Authority to meet as often as necessary to comply with this Act. RISK ASSESSMENT FOR SENTENCING SECTION 83. (p ) -amends KRS to include a risk and needs assessment prior to sentencing. ALTERNATIVES TO INCARCERATION SECTION 84. (p ) -amends KRS : use of probation/shock probation/conditional discharge, home incarceration and can include drug court and pretrial release as alternatives to incarceration. Page 8 of 11

9 REVOKING PROBATION/CONDITIONAL DISCHARGE SECTION 85. (p. 114) -amends KRS to make an exception (in Sec. 62) to the requirement for a hearing with the defendant before revoking /modifying probation or conditional discharge by the court. FAILURE TO PAY FINE/COURT COSTS SECTION 86. (p ) -creates a new section of KRS 534, allowing a per-day credit for fines/court costs of $50 or $100 if working in community service/labor program. SECTION 87. (p ) -amends KRS to allow Parole Board to issue warrants for violators of postincarceration supervision. SECTION 88. (p. 116) -amends KRS to include postincarceration supervision in the hearing officer process of probation and parole revocation. SECTION 89. (p. 116) -amends KRS to include postincarceration supervision in the requirement of following orders of the Parole board and D.O.C. SECTION 90. (P ) -amends KRS to include postincarceration supervised individuals in the group that can be arrested by parole officer for violating conditions. SEX OFFENDER POSTINCARCERATION SUPERVISION-Sections SECTION 91. (p ) -amends KRS : requires anyone convicted, plead guilty,to or Alford plea, to commercial sexual activity to a period of 5 years postincarceration supervison. SECTION 92. (p ) -amends KRS to include postincarceration supervised individuals required to register in the Law Information Network of Kentucky (LINK) system for sex offenders. SECTION 93. (p ) -amends KRS to toll the registration requirements in Section 92. SECTION 94. (p ) -amends KRS to include 5 years of postincarceration supervision for individuals convicted of, plead guilty to or Alford plea to commercial sexual activity. SECTION 95. (p ) -amends KRS to include postincarceration supervision status as evidence at sentencing hearing. SECTION 96. (p. 130) -amends KRS to include persons on postincarceration supervision as eligible for government benefits. Page 9 of 11

10 EXPUNGEMENT OF RECORDS SECTION 97. (p ) -amends KRS dealing with expungement of records, to exclude Section 21 (8) and and Section 22 (8) of this Act (certain drug possession statutes). SERVICE CREDITS-Sections SECTION 98. (p ) -amends KRS relating to credit for time served, can now be credited by D.O.C. in cases involving felony sentence, and by the sentencing court in all other cases. SECTION 99. (p ) -amends KRS relating to violent offenders, changes may to shall not be awarded any credit on sentence per KRS (1)(b)1. -strikes through current language allowing educational credit option. SECTION 100. (p ) -creates a new section of KRS 27A requiring A.O.C. to develop an application for a defendant to request deferred prosecution under Section 20 of this Act. -includes an option for Chief Justice authorization of A.O.C. to develop/collect/maintain list of persons who have records sealed, to be utilized by courts and attorneys when considering eligibility for deferred prosecution. SECTION 101. (p ) -amends KRS to include postincarceration supervised individuals in the group that may be arrested by parole officer for violating conditions. SECTION 102. (p ) -amends KRS to include postincarceration supervised individuals in the class of parolees who may be arrested by parole officer for violating conditions. SECTION 103. (p ) -creates a pilot project similar to Hawaii Opportunity Probation and Enforcement (HOPE) model between D.O.C. and the Court of Justice to improve safety and reduce the failure rates of individuals on probation. SECTION 104. (p ) -amends KRS : statute cleanup. SECTION 105. (p ) -amends KRS : statute cleanup. ANNUAL BED ALLOTMENT PAYMENTS SECTION 106. (p ) -amends KRS requiring one annual payment of bed allotment to counties, rather than monthly. SECTION 107. (p ) -amends KRS to require a preliminary calculation of credit for time served prior to commencement of a sentence in the presentencing investigation report. Page 10 of 11

11 ADMINISTRATIVE REGULATIONS FOR PROVIDER PAYMENTS SECTION 108. (p. 148) -requires D.O.C., in consultation with KACo/KCJEA/KHA/KJA/KMA, to immediately begin the administrative regulation process on speeding up payment to inmate medical providers. SECTION 109. (p. 148) -transfers General Fund moneys to D.O.C., and transfers moneys from D.O.C. s Community Services and Local Facilities budget to D.O.C. s Corrections Management, for expansion of the KY Offender Management Systems. SECTION 110. (p ) -reauthorizes the Penal Code and Controlled Substances Task Force. SECTION 111. (P ) -cites the effective dates of certain sections of this Act in out years 2012 and emergency clause in effect for sections of this Act. Page 11 of 11