501 KAR 6:250E. Graduated sanctions for technical violations of probation and compliance incentives system.

STATEMENT OF EMERGENCY

501 KAR 6:250E

A system of graduated sanctions is required to be adopted by January 1, 2012 pursuant to KRS 439.3107. This administrative regulation promulgates part of this system together with Corrections Policy and Procedure 27-15-03, which is incorporated by reference in 501 KAR 6:270. This administrative regulation is authorized to be filed as an emergency administrative regulation pursuant to KRS 13A.190(1)(a)(3). An ordinary administrative regulation alone will not cause the system of graduated sanctions to be adopted by the statutory deadline. This emergency administrative regulation shall be replaced by an ordinary administrative regulation. The ordinary administrative regulation is being filed with the Regulations Compiler simultaneously with the emergency administrative regulation. The ordinary administrative regulation is identical to this emergency administrative regulation.

HON. STEVEN L. BESHEAR, Governor

LADONNA H. THOMPSON, Commissioner

JUSTICE AND PUBLIC SAFETY CABINET

Department of Corrections

(New Emergency Administrative Regulation)

501 KAR 6:250E. Graduated sanctions for technical violations of probation and compliance incentives system.

RELATES TO: KRS Chapters 196, 197, 439

STATUTORY AUTHORITY: KRS 196.035, 439.3106, 439.3107, 439.3108, 439.470, 439.551, 439.590, 439.640

EFFECTIVE: December 16, 2011

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 or graduation 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) "Division" means the Kentucky Department of Corrections Division of Probation and Parole.

(3) "Graduated sanctions" is defined in KRS 446.010.

(4) "High risk behavior" means a lifestyle activity that places a person at risk of suffering a particular harmful condition.

(5) "New criminal violation" means conduct constituting a violation of criminal law whether or not it has led to new criminal charge(s) and which occurred after the offender was placed on community supervision.

(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) "Revocation" means an offender having his probation ended and being incarcerated as a result of a hearing for violations of conditions of supervision.

(9) "Releasing authority" means the court with jurisdiction over the sentence that granted probation.

(10) "Risk and needs assessment" is defined in KRS 446.010(35).

Section 2. Application of Graduated Sanctions. If 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;

(d) Seriousness of the offender’s previous criminal record;

(e) Number and severity of any previous supervision violations; and

(f) Extent to which graduated sanctions were imposed for previous violations.

(2) The officer shall review the circumstances of the offender and the violations at issue to determine if the violation behavior is appropriately responded to with graduated sanctions.

(a) Informal Response. In lieu of graduated sanctions, 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) Violations which shall be returned to the releasing authority. 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 or domestic violence order;

5. New misdemeanor conviction for sexual offense;

6. New misdemeanor conviction for driving under the influence;

7. Possession 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.

(3) If a determination is made by the officer to proceed with graduated sanctions, then the officer shall review the probation and parole violation matrix in Section 5 of this administrative regulation to impose sanctions.

(4) The officer shall identify the seriousness of the violation behavior using 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 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.

(5) 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;

(b) Use the probation and parole violation matrix in Section 5 of this administrative regulation to cross reference the violation behavior category as determined in Section 2(4) with the offender's risk and needs level to determine the sanctions available in the indicated response range.

(6) If the officer determines that the indicated response range or a lower response range contains an appropriate sanction for the circumstances of the violation, then the officer shall impose the sanction.

(7) The officer shall seek approval from the supervisor, if the officer determines that:

(a) More than two sanctions from response range 3 or higher are appropriate for the circumstances of the violation;

(b) 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;

(c) The sanctions from the indicated response range or a lower response range are insufficient for the circumstances of the violation and recommends revocation; or

(d) Interventions not included in the matrix are appropriate for the circumstances of the violation.

(8) Upon receiving a recommendation for graduated sanctions which requires approval before being implemented,

(a) The district supervisor or designee shall review the recommendation and may:

1. Approve the recommendation; or

2. Reject the recommendation and refer the violation back to the officer for alternative sanctions or revocation.

(b) The officer shall document the action in the offender management system.

(9) If the officer determines that the offender has failed to comply with graduated sanctions and further implementation of graduated sanctions would be futile, the officer shall seek approval from the district supervisor or designee to submit violation documentation to the releasing authority for violation proceedings.

(10) Upon receiving a recommendation to submit violation documentation to the releasing authority for violation proceedings,

(a) The district supervisor or designee shall review the recommendation and:

1. Approve the recommendation; or

2. Reject the recommendation and refer the violation back to the officer for alternative sanctions.

(b) The officer shall document the action in the offender management system.

Section 3. Minor Violations. Minor violations shall include but are not limited to the following:

(1) Failure to report a citation or arrest;

(2) Failure to report;

(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 or Domestic Violence Order;

(14) Violation of curfew;

(15) First or second positive drug or alcohol test;

(16) Failure to comply with re-entry programming; and

(17) Other violations of similar magnitude.

Section 4. Major Violations. Major violations shall include but are not limited to the following:

(1) Misdemeanor or felony conviction;

(2) Absconding supervision;

(3) Failure to comply with treatment;

(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) Intimidating or threatening a probation and parole officer;

(8) Possession or use of a weapon by an offender;

(9) Failure to comply with sex offender registry;

(10) Over three (3) months behind on restitution;

(11) Violation of a special condition ordered by the releasing authority;

(12) Violation of travel restrictions to another state;

(13) Violation of curfew with electronic monitoring device;

(14) Change of residence without officer’s permission;

(15) Failure to notify probation and parole officer about address change; and

(16) Other violations of similar magnitude.

Section 5. 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 (more) Minor	4		3	3		2	2
1st Major	4		3	3		2	2
2nd Major	4		3	3
3rd (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 range 1-2 or:			Any response or combination of responses in range 1-3 or:
Verbal or Written Warning		Curfew up to 60 days			Curfew up to 120 days			Curfew up to 180 days
Increased Reporting		Community Service 20-30 hours			Community Service 30-40 hours			Community Service 40-50 hours
Increase Frequency of Drug Testing		Electronic Monitoring			Halfway House			Jail Time up to 60 days (requires hearing with releasing authority)
Increase Level of Supervision		Increased Treatment Up To Residential			Jail Time up to 30 days (requires hearing with releasing authority)			Request Revocation
Loss of Travel or Other Privileges		Discretionary Detention up to 10 days with Supervisor Approval
Curfew up to 30 days
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.

Section 6. Documentation and Notice of Graduated Sanctions. (1) Prior to imposing the graduated sanctions, the officer shall prepare a probation violation report. The report shall include:

(a) A description of the violation behavior;

(b) A description of the sanctions which will be imposed; and

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 violation report to the offender prior to the imposition of sanctions;

(b) Ask the offender if he can read the probation violation report. If the offender states that he cannot read, then the officer shall read the report to the offender.

(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 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 sanctioning process.

(3) If the offender indicates to the officer that he does not understand his rights as stated in the probation violation report, the officer shall report the violation behavior to the court for disposition in lieu of proceeding with the graduated sanctioning process.

(4) If the offender chooses to waive his right to a violation hearing and elects to participate in the graduated sanctioning process, then:

(a) The offender shall note his choice and sign the probation violation report;

(b) The officer shall sign the probation violation report;

(d) The officer shall provide the probation violation report to the releasing authority; and

(e) The officer shall document the actions taken in the offender management system.

(5) If an offender contests the sanctions to be imposed or chooses not to waive his right to a violation hearing, the officer shall report the violation to the releasing authority for proceedings.

Section 7. Discretionary Detention Up to Ten Days. (1) 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 thirty days in discretionary detention during the calendar year.

(2) The officer shall determine a period of detention, not to exceed ten days.

(3) The officer shall seek approval from the district supervisor for the detention. If the officer takes the offender into custody, the officer shall:

(a) Obtain approval from the District Supervisor within four (4) hours;

(b) If the detention is not approved, follow directives of the District Supervisor;

(d) Release the offender from detention.

(4) Upon receiving a recommendation for detention:

(a) The district supervisor shall:

1. Approve the recommendation; or

2. Reject the recommendation and refer the violation back to the officer for alternative sanctions or revocation.

(b) The officer shall document the action in the offender management system.

(5) 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.

(6) The officer shall document the violation and provide notice to the offender and the releasing authority pursuant to the provisions of Section 6 of this administrative regulation.

Section 8. Compliance Incentives. An officer may use proportionate incentives for compliance with conditions of supervision, including but not limited to:

(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, or

(5) Other similar incentives.

LADONNA H. THOMPSON, Commissioner

APPROVED BY AGENCY: December 12, 2011

FILED WITH LRC: December 16, 2011 at 4 p.m.

CONTACT PERSON: Amy V. Barker, Justice and Public Safety Cabinet, Office of Legal Services, 125 Holmes Street, Frankfort, Kentucky 40601, phone (502) 564-3279, fax (502) 564-6686.

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

Contact Person: Amy Barker (502) 564-3279

(1) Provide a brief summary of:

(a) What this administrative regulation does: This regulation establishes a system of graduated sanctions for probationers.

(b) The necessity of this administrative regulation: To conform to the requirements of KRS 439.3106, 439.3107, 439.3108, 439.470, 439.551, 439.553.

(c) How this administrative regulation conforms to the content of the authorizing statutes: The regulation addresses new legislative requirements and establishes a system of graduated sanctions for non-compliance with probation supervision.

(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: The regulation sets a system of standard responses for probation officers to violations of probation, but still allows flexibility.

(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

(a) How the amendment will change this existing administrative regulation: Not applicable.

(b) The necessity of the amendment to this administrative regulation: Not applicable.

(d) How the amendment will assist in the effective administration of the statutes: Not applicable.

(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This affects the Kentucky Department of Corrections, 425 employees and 30,000 offenders, and 120 releasing courts.

(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:

The courts will have to determine the extent of the applicability of the sanctions system because the Department cannot act in conflict with the courts’ orders in the supervision of probationers. Probation and parole officers will have to review the offender’s case for imposition of sanctions for violations and provide notice to the releasing authority in most cases. Offenders who violate their terms of probation will have to determine whether to agree with the imposition of sanctions or alternatively have the court rule on the violations.

(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Alternative sanctions for non-compliant offenders may include short term incarceration at a local detention facility with an average cost of $31.34 per day. The alternative sanction may be imposed in lieu of re-incarceration at a state prison at the average cost of $60.02 per day.

Offenders will receive alternative sanctions in the community in an effort to avoid re-incarceration for less serious violations. Offenders will have the system of graduated sanctions clearly stated for a better understanding of the consequences of violations and giving offenders the opportunity to comply prior to revocation of supervision being sought.

(5) Provide an estimate of how much it will cost to implement this administrative regulation:

(a) Initially: There is no cost to implement this administrative regulation.

(b) On a continuing basis: There is no cost to implement this administrative regulation.

(6) What is the source of funding to be used for the implementation and enforcement of this administrative regulation: Kentucky Department of Corrections budgeted funds.

(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change, if it is an amendment:

There is no anticipated increase in fees or funding to meet the legislative requirements and this regulation.

(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: This administrative regulation does not establish or increase any fees.

(9) TIERING: Is tiering applied? No. Tiering was not appropriate in this administrative regulation because the administrative regulation applies equally to all those individuals or entities regulated by it.

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

1. Does this administrative regulation relate to any program, service, or requirements of a state or local government (including cities, counties, fire departments, or school districts)? Yes.

2. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The amendments to this regulation impact the operation of Kentucky Department of Corrections and sentencing courts.

3. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 439.3106, 439.3107, 439.3108, 439.470, 439.551, 439.553

4. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

a. How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? Alternative sanctions may include short term incarceration at the local detention center at an average cost of $31.34 per day. Local jails receive compensation for the cost of housing state offenders for alternative sentences. Based on an average of 13,788 days per month offenders spent in jail custody on alternative sentences for the first quarter of FY2012, the monthly revenue to state jails is estimated at $432,115.92.

(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? It is estimated that incarceration costs occurring in subsequent years would be the same as incurred in the first year.

(c) How much will it cost to administer this program for the first year? Based on an average of 13,788 days offenders spent in jail per month on alternative sentences for the first quarter of FY2012, the monthly cost to the state is $432,115.92 ($5,185,391.04 annually). The alternative sanction may be imposed in lieu of re-incarceration at a state prison at the average cost of $60.02 per day, for which the estimated monthly cost would be $827,555.76 ($9,930,669.12 annually).

(d) How much will it cost to administer this program for subsequent years? It is estimated that expenses occurring in subsequent years would be the same as incurred in the first year.

Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

Revenues (+/-):

Expenditures (+/-):

Other Explanation: