Current through Register Vol. 51, No. 6, December 1, 2024
RELATES TO: KRS 196.030, 439.250, 439.3105-439.3108, 439.551,
439.553, 446.010
NECESSITY, FUNCTION, AND CONFORMITY: KRS 196.035, 439.3106,
439.3107, 439.3108, 439.470, and 439.551 authorize the Justice and Public
Safety Cabinet and Department of Corrections to promulgate administrative
regulations necessary and suitable for the proper administration of the
department or any of its divisions and to establish a system of graduated
sanctions for probation violations. This administrative regulation establishes
graduated sanctions for responding to violations of probation.
Section 1. Definitions.
(1) "Conditions of supervision" or
"conditions of probation" means general and specific directives given to an
offender placed on probation by the sentencing judge or the Division of
Probation and Parole.
(2)
"Demonstrated pattern of failure to comply with conditions of supervision"
means that the offender has a major violation of the same or similar condition
of supervision more than three (3) times over the course of the offender's
supervision.
(3) "Division" means
the Kentucky Department of Corrections Division of Probation and
Parole.
(4) "Graduated sanctions"
is defined by KRS 446.010(20).
(5)
"High risk behavior" means an action or activity that places a person at risk
of violating a condition of supervision or committing a crime.
(6) "Offender" means a person placed under
the supervision of the division by a court with jurisdiction over the
sentence.
(7) "Officer" or
"probation and parole officer" means a person employed by the division who
supervises, counsels, and directs an offender on probation.
(8) "Releasing authority" means the court
with jurisdiction over the sentence that granted probation.
(9) "Revocation" means an offender having his
probation ended and being incarcerated as a result of a hearing for violations
of conditions of supervision.
(10)
"Risk and needs assessment" is defined by KRS 446.010(38).
(11) "Probation and parole violation matrix"
means the table in Section 6 of this administrative regulation that addresses
sanction decisions.
Section
2. Informal Response and Mandatory Return to Court.
(1) Informal response.
(a) Unless otherwise ordered by the court,
the officer may resolve the following minor violations through an informal case
management strategy:
1. Missing scheduled
report day;
2. Traffic offense
without arrest;
3. Failure to seek
employment;
4. Failure to enroll or
maintain school attendance; and
5.
Failure to notify officer prior to change of address.
(b) The officer shall compile a violation
report documenting the reason and the informal response.
(c) The officer shall meet with the offender
to discuss and sign the violation response.
(2) Violations which shall be returned to the
releasing authority.
(a) Graduated sanctions
shall not be used by the officer and violation documentation shall be submitted
to the releasing authority for violation proceedings up to and including
revocation for the following violations:
1.
Absconding supervision;
2. New
felony conviction;
3. New
misdemeanor conviction of assault;
4. New misdemeanor conviction of violation of
emergency protective, domestic violence, or interpersonal protective
order;
5. New misdemeanor
conviction for sexual offense;
6.
New misdemeanor conviction for driving under the influence;
7. Possession or use of a firearm;
8. Failure to complete sex offender treatment
program;
9. Demonstrated pattern of
failure to comply with conditions of supervision; or
10. Violations of an assaultive
nature.
(b) The officer
shall provide the violation documentation to a supervisor and discuss the case
prior to submitting the violation documentation to the releasing
authority.
Section
3. Review for Graduated Sanctions and Use of the Matrix. If the
violation is not handled by an informal response as established in Section 2 of
this administrative regulation and the sentencing court orders the offender to
be subject to graduated sanctions as part of the conditions of his probation,
then to the extent that this administration regulation is not in conflict with
the orders of the court, graduated sanctions shall be applied as follows:
(1) The officer shall consider the:
(a) Offender's assessed risk and needs
level;
(b) Offender's adjustment on
supervision;
(c) Severity of the
current violation;
(d) Seriousness
of the offender's previous criminal record;
(e) Number and severity of any previous
supervision violations;
(f) Extent
to which graduated sanctions were imposed for previous violations;
and
(g) Any other factors related
to public safety.
(2)
The officer shall:
(a) Determine whether the
violation is a major or minor violation in accordance with Sections 4 and 5 of
this administrative regulation; and
(b) Review the probation and parole violation
matrix in Section 6 of this administrative regulation to impose sanctions or
determine other appropriate action as directed in this administrative
regulation.
(3) The
officer shall consider the following when reviewing the violation behavior with
the matrix:
(a) If there are multiple
violations, the officer shall use the most serious violation for the review for
sanctions.
(b) If the possible
sanctions in a response range have been exhausted on previous violations, the
officer may use sanctions in the next highest response range.
(c) If the offender has violated conditions
of supervision imposed in more than one (1) case (i.e., multiple cases from a
single jurisdiction, cases from multiple jurisdictions, or on supervision for
probation and parole or other form of community supervision), the officer shall
determine the criminal conviction in the case for which the graduated sanctions
will be imposed. A graduated sanction shall not be imposed on more than one
case at a time and cases shall not be sanctioned separately for individual
violations arising from the same series of violations.
(4) In order to determine the range of
sanctions that may be imposed, the officer shall:
(a) Determine the offender's risk and needs
level based on the offender's most recent risk and needs assessment;
and
(b) Use the probation and
parole violation matrix in Section 6 of this administrative regulation to cross
reference the violation behavior category as determined in subsection (3) of
this section with the offender's risk and needs level to determine the
sanctions available in the indicated response range.
(5) If the officer recommends a graduated
sanction or discretionary detention, the officer shall:
(a) Discuss with a supervisor an appropriate
graduated sanction for the violation prior to completing the violation
report;
(b) Complete and provide
the violation report to the supervisor including information about compliance
with the probation and parole matrix in Section 6 of this administrative
regulation;
(c) State the reasons
for a recommendation of an alternative response outside of the responses
outlined in the probation and parole matrix, if the officer makes an
alternative response recommendation. The reasons may include:
1. The sanctions from the indicated response
range or a lower response range are insufficient for the circumstances of the
violation and recommends imposing sanctions from a higher response
range;
2. The sanctions from the
indicated response range or a lower response range are insufficient for the
circumstances of the violation and recommends revocation;
3. Interventions not included in the matrix
are appropriate for the circumstances of the violation; or
4. The officer determines that the offender
has failed to comply with prior graduated sanctions imposed and further
implementation of graduated sanctions would be futile;
(d) Obtain approval from a supervisor for the
violation response prior to imposing the sanction; and
(e) Document the approval, denial, or
resubmission of an alternative graduated sanction action in the offender
management system.
(6)
Upon receiving a recommendation for graduated sanctions, the supervisor shall
review the recommendation and:
(a) Approve the
recommendation; or
(b) Reject the
recommendation and refer the violation back to the officer for alternative
sanctions or revocation.:
Section 4. Minor Violations. Minor violations
shall include the following:
(1) Failure to
report a citation or arrest;
(3) Being in an
establishment where alcohol is sold as a primary commodity;
(4) Traffic offenses unless
arrested;
(5) Failure to pay
financial obligations as ordered by the releasing authority;
(6) Failure to seek employment;
(7) Failure to enroll or maintain school
attendance;
(8) Falsifying a
release report;
(9) Violation of
other special conditions unless ordered by releasing authority;
(10) Association with convicted
felon;
(11) Violation of travel
restrictions;
(12) Visiting a
correctional facility without prior approval;
(13) Issuance of an emergency protective
order, domestic violence order, or interpersonal protective order;
(14) Violation of curfew;
(15) First or second positive drug or alcohol
test;
(16) Failure to comply with
re-entry programming;
(17) Failure
to complete community service; and
(18) Other violations of similar
magnitude.
Section 5.
Major Violations. Major violations shall include the following:
(1) Misdemeanor conviction that does not
require submission to the releasing authority pursuant to Section 2(2)(a) of
this administrative regulation;
(2)
Failure to complete treatment;
(3)
Failure to complete halfway house program;
(4) Multiple minor violations within ninety
(90) days;
(5) Multiple positive
drug or alcohol tests or high risk behavior;
(6) Refusal to submit to an alcohol or drug
test;
(7) Altering or attempting to
alter the results of a drug screen;
(8) Harassing or threatening a probation and
parole officer;
(9) Possession or
use of a weapon other than a firearm by an offender;
(10) Failure to comply with sex offender
registry;
(11) Over three (3)
months behind on restitution;
(12)
Violation of a special condition ordered by the releasing authority;
(13) Violation of travel restrictions to
another state;
(14) Violation of
curfew with electronic monitoring device;
(15) Change of residence without officer's
permission;
(16) Failure to notify
probation and parole officer about address change;
(17) Failure to participate in a required
program or service; and
(18) Other
violations of similar magnitude.
Section 6. Probation and Parole Violation
Matrix. The following matrix shall be used to determine allowable graduated
sanctions for probation violations:
PROBATION AND PAROLE VIOLATION MATRIX
|
|
OFFENDER RISK LEVEL
|
VIOLATION
|
Very High
|
High
|
Moderate
|
Low
|
Admin
|
1st Minor
|
2
|
1
|
1
|
1
|
1
|
2nd Minor
|
3
|
2
|
2
|
2
|
1
|
3rd (or more) Minor
|
4
|
3
|
3
|
2
|
2
|
1st Major
|
4
|
3
|
3
|
2
|
2
|
2nd Major
|
4
|
3
|
3
|
|
3rd (or more) Major
|
4
|
4
|
4
|
|
Response Range 1
|
Response Range 2 |
Response Range 3 |
Response Range 4
|
|
Any response or combination of responses in range 1
or: |
Any response or combination of responses in ranges
1-2 or:
|
Any response or combination of responses in ranges
1-3 or:
|
Verbal or Written Warning Evidence Based Programming
Coaching by supervisor & officer Increase Reporting Increase Frequency of
Drug Testing Referral to programming approved by the Department Up to 3 days
Discretionary Detention with Supervisor Approval Increase Level of Supervision
Loss of Travel or Other Privileges Curfew up to 30 days |
Curfew up to 60 days Community Service 20-30 hours
Electronic Monitoring Increased Treatment Up To Residential Up to 5 days
Discretionary Detention with Supervisor Approval |
Curfew up to 120 days Community Service 30-40 hours
Halfway House 6-10 days Discretionary Detention with Supervisor Approval Jail
Time in excess of 10 days (requires hearing with releasing authority)
|
Curfew up to 180 days Community Service 40-50 hours
Additional jail time at the discretion of the releasing authority Request
Revocation
|
Referral to the Social Service Clinician for
substance abuse assessment and treatment Referral to Community Service Agency
for Counseling or Treatment Community Service up to 8 hours
|
|
|
|
*Upon consideration of the totality of the
circumstances and with supervisory approval, the officer may direct the
offender into appropriate interventions not included in the violation matrix or
seek to impose a high lever sanction, up to and including revocation.
Discretionary detention for probationers shall be implemented pursuant to this
administrative regulation to the extent that it is not in conflict with the
orders of the court.
|
Section
7. Documentation and Notice of Graduated Sanctions.
(1) Prior to imposing the graduated
sanctions, the officer shall prepare a probation violation report with
graduated sanctions. The report shall include:
(a) A description of the violation
behavior;
(b) A description of the
sanctions which will be imposed; and
(c) Notice of the offender's right to:
1. A violation hearing before the
court;
2. Representation by an
attorney at the hearing; and
3.
Have an attorney appointed for him at state expense if he cannot afford
one.
(2) The
officer shall:
(a) Provide a copy of the
probation graduated sanctions violation report to the offender prior to the
imposition of sanctions;
(b) Ask
the offender if he can read the probation graduated sanctions violation report.
If the offender states that he cannot read, then the officer shall read the
report to the offender; and
(c) Ask
the offender if he can understand English. If the offender informs the officer
that he cannot understand English, the officer shall provide the offender with
a probation graduated sanctions violation report in the offender's language or
a language interpreter, if available. If the report cannot be provided in the
offender's language and a language interpreter is not available, then the
officer shall report the violation behavior to the court for disposition in
lieu of proceeding with the graduated sanctions process.
(3) If the offender indicates to the officer
that he does not understand his rights as stated in the probation graduated
sanctions violation report, the officer shall report the violation behavior to
the court for disposition in lieu of proceeding with the graduated sanctions
process.
(4) If the offender
chooses to waive his right to a violation hearing and elects to participate in
the graduated sanctions process, then:
(a) The
offender shall note his choice and sign the probation graduated sanctions
violation report;
(b) The officer
shall sign the probation graduated sanctions violation report;
(c) The district supervisor or designee shall
sign the probation graduated sanctions violation report;
(d) The officer shall provide the probation
graduated sanctions violation report to the releasing authority; and
(e) The officer shall document the actions
taken in the offender management system.
(5) If the offender contests the graduated
sanction to be imposed for minor violations, the officer shall report the
contest to the supervisor. The supervisor shall deny the offender's contest or
grant an alternative sanction.
(6)
If the offender chooses not to waive his right to a violation hearing, the
officer shall report the violation to the releasing authority for
proceedings.
Section 8.
Discretionary Detention.
(1) Discretionary
Detention Up to Ten (10) Days.
(a) If the
officer recommends discretionary detention as a graduated sanction, the officer
shall review the offender's record to determine if the recommended days of
detention will cause the offender to serve more than sixty days in
discretionary detention during the calendar year as limited by KRS 439.3108.
(b) The officer shall
determine a period of detention, not to exceed ten days in compliance with the
probation and parole matrix in Section 6 of this administrative
regulation.
(c) The officer shall
seek approval from a supervisor for the detention. If the officer takes the
offender into custody, the officer shall:
1.
Obtain approval from a supervisor within four (4) hours;
2. If the detention is not approved, follow
directives of a supervisor;
3.
Continue the detention if other legal process permits; or
4. Release the offender from
detention.
(d) Upon
receiving a recommendation for detention, the supervisor shall:
1. Approve the recommendation; or
2. Reject the recommendation and refer the
violation back to the officer for alternative sanctions or
revocation.
(e) The
officer shall document the action in the offender management system.
(2) Discretionary detention for
more than ten (10) days.
(a) If the officer
recommends discretionary detention as a graduated sanction in excess of ten
(10) consecutive days:
1. Discuss the
detention days in excess of ten (10) days with a supervisor;
2. Complete a violation report with reasons
for the additional period of detention;
3. Submit the violation report to a
supervisor for approval;
4. Submit
the violation report to the releasing authority with the reason for the
additional detention days, if approval is received from a supervisor;
and
5. Document the actions in the
offender management system.
(b) Upon receiving a recommendation for
detention the supervisor shall:
1. Approve the
recommendation; or
2. Reject the
recommendation and refer the violation back to the officer for alternative
sanctions or revocation.
(3) The officer shall determine if the
offender is employed and whether it is feasible for the offender to serve the
approved detention at times that the offender is not scheduled to
work.
(4) The officer shall
document the violation and provide notice to the offender and the releasing
authority pursuant to the provisions of Section 7 of this administrative
regulation.
Section 9.
After consideration of the totality of the circumstances, if the officer
determines that graduated sanctions are not appropriate for the violation and
seeks to return the offender to the releasing authority for violation
proceedings, the officer shall discuss the case with a supervisor.
(1) The supervisor and officer shall review
the following factors:
(a) The offender has
demonstrated an inability to comply with supervision;
(b) Graduated sanctions have been previously
imposed or the serious nature of the violation merits return to the releasing
authority;
(c) The offender refuses
graduated sanctions;
(d) All
resources available in the community have been exhausted; and
(e) The offender poses a safety risk to
himself or the community.
(2) The case review shall be documented in
the offender management system by the supervisor, including why graduated
sanctions were not appropriate and the factors used to make the recommendation
to the releasing authority.
Section
10. Compliance Incentives. An officer may use proportionate
incentives for compliance with conditions of supervision including:
(1) Reduced reporting requirements;
(2) Lower levels of supervision as indicated
by the offender's risk and needs assessment;
(3) Removal of supervision conditions, for
example home detention or curfew;
(4) Eligibility for early termination of
probation;
(5) Awarding
certificates of achievement;
(6)
Deferring a monthly supervision fee payment;
(7) Asking the supervised individual to be a
mentor to others; or
(8) Other
similar incentives.
STATUTORY AUTHORITY: KRS 196.035, 439.3106, 439.3107,
439.3108, 439.470, 439.551, 439.553