HB 455/FN/LM/CI (BR 1330) - M. Bowling, R. Adkins, K. Bratcher, J. Bruce, J. Callahan, L. Clark, D. Ford, C. Geveden, J. Gooch, J. Haydon, S. Johns, J. Lee, J. Lovell, H. Moberly, R. Murgatroyd, S. Nunn, T. Pope, J. Richards, S. Riggs, A. Simpson, J. Stacy, G. Stumbo, T. Turner, M. Weaver, B. Yonts
AN ACT relating to criminal justice matters.
Amend, create, and repeal numerous sections of KRS to create a crime commission, expand alternatives for juveniles accused of crimes, expand use of alternatives for adults convicted of crime, provide for life imprisonment without parole, prohibit ethnic intimidation, expand death penalty aggravating circumstances to include child under 12 and witnesses, provide for witness and victim protection, certify police officers and deputy sheriffs, expand salary supplement now given to police to include deputy sheriffs and other named officers, provide for sharing of criminal justice and other information between agencies; provide for installation of automated fingerprint identification system; provide for enhanced and unified computer systems for criminal justice programs; increase felony theft level from $300 to $1,000; provide that foreign domestic violence orders do not have to be authenticated; make various other changes in criminal law and procedure.
HB 455 - AMENDMENTS
HCS (1/FN/LM/CI) - Permit Administrative Office of the Courts to collaborate with Department of Juvenile Justice in delinquency prevention; require counties to pay for incarceration of juveniles in both pre adjudication and post-adjudication state facilities; add Commonwealth's and county attorneys and law enforcement agencies to those whom Department of Juvenile Justice must provide juvenile records; restrict sharing of juvenile records between agencies to official purposes only and restrict disclosure or redisclosure according to restrictions in state and federal law; provide that a sex offender not be credited with earned good time toward release until the offender successfully completes the sex offender treatment program, and that upon successful completion of the program, the offender is given his earned good time and may continue to earn good time; provide that mentally retarded persons not be penalized for not participating in sex offender treatment program; provide that sex offenders be subject to an additional three-year period of conditional discharge after expiration of their ordinary sentence, during which time they may be reincarcerated for violation of the conditions of release; require the Criminal Justice Council to study the rights of victims; add the following persons to the Criminal Justice council: a crime victim, a victim advocate, the Commissioner of State Police, a person selected by the state lodge of the Fraternal Order of Police, the Chief Justice or a judge designated by him, and a member of the Kentucky Association of Criminal Defense Lawyers; include the courts, Commonwealth's and county attorneys and the unified prosecutorial system in criminal justice record system; provide that criminal justice council recommendations be transmitted to chief justice, as well as to Governor and legislature; delete automatic sending of law enforcement records to the courts when child is eliminated as a suspect; require police or other agency receiving warrants to enter warrants into automated warrant system; require circuit clerks only to enter warrants they receive into system; require all persons serving warrants to enter service into automated warrant system; reduce crime victim fee increase from an increase to $30 to an increase to $20; delete the $1.00 restitution fee to be paid to circuit clerk and increase the 2% fee paid to clerk to 5%, with money going to circuit clerk's office rather than general fund; provide that records of persons protected under Attorney General crime victim and witness protection program are not public records; delete disability from crime of ethnic intimidation; delete disability from crime of institutional vandalism; delete civil remedies and injunctions for ethnic intimidation and institutional vandalism; delete provision detailing how liens must be filed; delete civil action for filing bogus lien; add "knows or should have known" to crime of filing false lien; clarify that a sheriff's office may participate in the KLEPF fund only on the request of the sheriff; clarify that felony sex offenses under KRS Chapter 510, incest, using a minor in a sexual performance, and unlawful transaction with a minor in the first degree require conditional discharge after release from prison; reduce penalty for violating KRS 198.393 from the proposed Class A misdemeanor to a Class B misdemeanor, unless the defendant is fleeing from the commission of a felony; provide that prisoners on community corrections programs and other forms of release may be electronically monitored and must pay monitoring fees; provide that private agencies may do the monitoring; provide that a violent offender either did serious physical injury to the victim, or in cases of rape and sodomy, used forcible compulsion; delete provisions specifying that out of state protective orders be accepted without authentication; delete all provisions increasing the felony theft amount from $300 to $1,000; delete provisions mandating court consideration of alternatives to incarceration in juvenile matters; replace criminal gang provisions with a new section creating an enhancement by one degree of any listed crime committed by a criminal gang; require that four rather than two characteristics of a criminal gang be found before an organization may be termed a criminal gang; reduce period of illegal activity for criminal gang association from 10 to 5 years; provide that pretrial diversion program be operated by Administrative Office of the Courts; permit the courts to charge a fee for diversion supervision; clarify how complaints that a person has violated conditions of diversion are handled; provide that Supreme Court rule and not administrative regulation govern pretrial diversion programs; add provision giving peace officer powers to private prison guards when dealing with prisoners; delete provisions relating to private prison contracts; create a new section of KRS Chapter 197 to specify that private prison contractors may file irrevocable letters of credit, as well as performance bonds, and provide that private prison contracts protect the state's interest in having a continuous level of prison beds available; amend KRS 197.170, relating to notices of release of prisoners, to require that notice of released felons be posted in the police station for not less than 7 days; change provision relating to state testing of police officers prior to certification to specify that local government must pay for testing; provide for waiver of fees on showing of hardship; provide for an officer to leave one department and join another without losing certification; amend KRS 532.080, relating to possession of drug paraphernalia, to exempt a conviction for that offense from the persistent felony offender statute; amend KRS 532.055, relating to information presented to jury during the penalty phase of a trial, to permit victim impact testimony; amend KRS 439.315, relating to probation and parole supervision fees, to provide that the maximum fee currently in statutes is a yearly maximum, rather than an absolute maximum; amend KRS 337.010 to provide that private prison construction is covered by the prevailing wage requirement; create a new section of KRS Chapter 533 to require Department of Corrections to pay for prisoners placed in county jail on conditional discharge; provide offset if prisoner pays release fees; amend KRS 532.110, relating to sentencing, to provide that regardless of how many consecutive sentences a prisoner receives, the maximum term of years is 50 years; make technical corrections.
HCS (2/FN/LM/CI) - Retain provisions of first committee substitute with the following changes: require the Department of Juvenile Justice to pay counties for the cost of detention from the date of commitment and to charge counties a per diem not to exceed $94 per day for lodging juveniles in state-owned facilities; treat a child acting in furtherance of a gang activity as a youthful offender; limit pretrial diversion program to Class D felons and limit the circumstances under which pretrial diversion can be used; allow the victim and family of the victim to attend the hearing in which pretrial diversion is granted; delete forcible compulsion requirement from the definition of violent offender; increase the amount allowed as the aggregate of indeterminate terms from 50 years to 70 years; delete increases in court costs; delete provisions that prohibit the stay, waiver or delay of penalties relating to the trafficking of a controlled substance; delete requirement that community service defendants pay a portion of the cost of their incarceration;. and to make technical corrections.
HFA (1/FN, K. Hogancamp) - Limit the release of school records to law enforcement agencies to records pertaining to status offenders, public offenders, and youthful offenders.
HFA (2/FN, J. Barrows) - Delete provisions for legislators to be included on the Criminal Justice Council and delete provision eliminating probation, shock probation, parole, conditional discharge, or any other form of early release when felon wore body armor.
HFA (3/FN, B. Yonts) - Amend KRS 197.045 to provide that a sexual offender who does not complete the sex offender treatment program for any reason shall serve his entire sentence without benefit of good time, parole, or other form of early release; add sections 72 and 118 to the citation of the Sarah Hansen Act.
HFA (4, M. Bowling) - Retain the original provisions of the Second House Committee Substitute, except place the pretrial diversion program in the Division of Probation and Parole rather than with Administrative Office of the Courts require any person to plead guilty to qualify for pretrial diversion, rather than just minors.
HFA (5, K. Hogancamp) - Limit the records that schools must share with law enforcement agencies.
HFA (6/FN, R. Damron) - Insert amendment of KRS 95.435 relating to custody of property in the police department of urban county governments to provide for disposition of firearms in accordance with KRS 500.080.
HFA (7/FN, R. Damron) - Amend Section 58 relating to requirements to enter pretrial diversion program to require a plea of guilty as a requirement of entry into a pretrial diversion program.
HFA (8/FN, R. Damron) - Delete section relating to requiring prevailing wage for private prison construction.
HFA (9/FN, R. Damron) - Create a new section of KRS Chapter 508 to create the crime of disarming a peace officer as a Class D felony.
HFA (10/FN, R. Damron) - Add amendment of KRS 438.250 relating to HIV testing of criminal defendants to include hepatitis A and B and tuberculosis
HFA (11/FN, R. Damron) - Add amendments to KRS Chapter 197 relating to prisons and KRS Chapter 441 relating to jails to prohibit supplying certain exercise equipment to inmates and inmates from participating in certain sports.
HFA (12/FN, R. Damron) - Create and amend various sections of Chapters 16, 237, 65, 45A and 500 to require surplus and confiscated firearms to be sold and profits from sales to be used for purchasing body armor for police, firearms and ammunition for police, and firearms ranges for police.
HFA (13, C. Geveden) - Delete the requirement that the Department of Juvenile Justice charge counties for lodging juveniles in post-adjudication facilities; prohibit detention facilities from increasing detention rates.
HFA (14, T. Riner) - Create a new section of KRS Chapter 197 to require that each inmate under the jurisdiction of the Department of Corrections who is between the ages of 18 and 21, meets the criteria under KRS 157.200 and the Federal Individuals with Disabilities Act as amended, who does not have a high school diploma or its equivalency be enrolled in an educational program designed to provide that inmate with a high school diploma or its equivalency; require that the department be reimbursed for the educational programs from local school districts; amend KRS 157.350 to conform.
HFA (15, T. Riner) - Amend to insert new sections of KRS Chapter 197 relating to prisons and KRS Chapter 441 relating to jails, to permit prisoners to receive religious publications and materials if they request or purchase them, or if they are donated to the inmate or jail.
HFA (16, T. Riner) - Create new sections in KRS Chapter 197 and KRS 441 to require that all grievances be maintained in a calendar year and each report be made available as an open record to any person requesting to see the report on site, provided the inmate has signed a waiver of confidentiality; provide that copies may be made at a nominal charge; and provide that information may be published with the inmates consent.
HFA (17, T. Riner) - Create a new section of KRS Chapter 197 and KRS Chapter 441 to encourage each facility to work with religious leaders in the area to develop voluntary chaplain programs and permit at least one visit from a minister per inmate.
HFA (18/FN, B. Yonts) - Deny a sex offender early release unless he completes a sex offender treatment program; require sheriffs and chiefs of police to post for at least 7 days notices of inmate release; permit the citation of Sections 24, 25, 70, and 121 of the Act as the Sarah Hansen Act.
HFA (19, M. Bowling) - Make technical correction.
HFA (20, A. Arnold) - Insert amendment of KRS 237.110 relating to carrying of concealed weapons by licensees to specify that the prohibition against carrying weapons in the vehicle of an employer relates to private employers only.
HFA (21, T. Riner) - WITHDRAWN
SCS/FN/LM/CI - Retain provisions of General Assembly version, except add sexual orientation to hate crimes provision; add $20 crime victims' compensation fee to district court costs; add premeditated murder and murders committed against a victim when a protective order was in effect to aggravating factors in death penalty sentencing; provide court procedures to determine a condemned person's sanity to be executed; prohibit hunting while intoxicated; expand victim access to juvenile court records; make alcohol a prohibited controlled substance in detention facilities; make university police and sheriffs and their deputies eligible for KLEFPF funds; make it a crime to flee or elude police; increase penalty for impersonating a police officer; require communities to be notified when sex offenders are released from prison, and base level of notification on the offender's evaluated risk of reoffense; allow courts to approve or disapprove pretrial diversion plans; require the state police to forward confiscated firearms to the Division of Surplus for sale, rather than selling them at auction; allow defendants to offer evidence in support of leniency at sentencing; prohibit parole for violent offenders who are persistent felony offenders in the first or second degree, except as provided in KRS 439.3401, or unless all of the offender's offenses were nonviolent Class D felonies; allow the Kentucky Supreme Court to approve and authorize misdemeanant pretrial diversion programs; direct the Criminal Justice Council to study civil commitment for sex offenders and the creation of a Class E felony for certain crimes against property; allow parole board to use computer voice stress analysis in addition to the polygraph and other means for testing truth; prohibit probation or parole for anyone who commits certain crimes while armed and wearing body armor; allow courts to require incarcerated persons to pay for the cost of their incarceration in some cases; allow any defendant to enter an alford plea, in lieu of a guilty plea, to get pretrial diversion; add the following to the Criminal Justice Council: three criminal law professors, one District Court Judge, one Circuit Court Judge, one Court of Appeals Judge, one member of the Circuit Clerks Association, one representative of an organization dedicated to restorative principles of justice, and one individual with a demonstrated commitment to youth advocacy; exempt the Justice Cabinet from provision which prohibits a public employer from prohibiting its employees from carrying firearms in state-owned vehicles; create increased penalties for DUI offenders with a 0.18 or higher blood or breath alcohol concentration; extend Kentucky peace officer status to certain agents of the United States department of Agriculture; allow crime victims to bring civil actions against perpetrators and collect attorney's fees and punitive damages; include church and faith-based counseling and treatment programs as available sentencing alternatives; require courts to enter written findings of fact and conclusions of law when imposing sentences; restrict gang provisions to drug trafficking and violent offenses only, replace the penalty enhancement provision with a provision allowing the court to impose an addition period of sentencing at its discretion, expand gang intimidation provision to include gang recruitment, and require the Criminal Justice Council to study the gang problem; delete requirement for local jails to publish prisoner grievances; allow local jailers to deny work release to prisoners who violate standards of discipline; increase penalty for inducing a minor to engage in controlled substance activity; and make technical corrections.
SFA (1, D. Karem) - Add sexual orientation to the list of factors protected by hate crimes provisions.
SFA (2, N. Kafoglis) - Make technical corrections.
SFA (3, T. Philpot) - Amend KRS 533.030 to provide that time actually spent in confinement not exceed 24 months.
SFA (4, J. Rose) - Amend ethnic intimidation statute to include gender, age and disability.
SFA (5, T. Philpot) - Eliminate sexual orientation of the victim as a basis for the crime of ethnic intimidation.
SFA (6, E. Scorsone) - Make technical correction.
SFA (7, T. Philpot) - Eliminate the crime of ethnic intimidation; direct the Criminal Justice Council to study crimes of discrimination, bias, and hate.
SFA (8, E. Harris) - Eliminate county fiscal court authority over constables.
SFA (9, G. Neal) - Amend KRS 431.078 to provide that juvenile offenders may have their felony records expunged if they haven't committed a violent felony offense or a sexual offense..
SFA (10, D. Nunnelley) - Amend KRS 70.030 to make establishment of a deputy sheriff merit board permissive rather than mandatory to receive law enforcement foundation fund program money.
SFA (11, T. Philpot) - Require persons incarcerated in county or regional jails to work forty hours per week; prohibit work outside of jails for persons convicted of certain crimes; allow a prisoner not to work if he has a valid medical excuse.
SFA (12, T. Philpot) - Create a new section of KRS Chapter 510 to prohibit a person who has tested positive for HIV or AIDS from engaging in sexual intercourse, deviate sexual intercourse, or sexual activity with another person; provide penalties; amend KRS 529.090 relating to prostitution by person with HIV to provide similar penalties and to increase penalty for promoting such prostitution from Class D to Class A felony.
SFA (13, D. Williams) - Revise the crime of ethnic intimidation to eliminate the enhancement of penalty; require the finding to be made by sentencing judge by preponderance of the evidence; permit judge to use finding as sole reason for denying probation, shock probation, or conditional discharge; permit parole board to use same finding as sole reason for denying or delaying parole.
SFA (14, W. Blevins) - Create a new section of KRS Chapter 433 to permit persons convicted under the former armed robbery statute, KRS 433.140, which called for a sentence of life imprisonment, to be resentenced by the circuit court in which they were convicted to the present sentence for robbery in the first degree, which is a Class B felony with a maximum sentence of 20 years (persons resentenced would be given credit for time served under the prior statute and thus would be released from prison).
SFA (15, G. Neal) - Make technical corrections.
SFA (16, T. Philpot) - Create a new section of KRS Chapter 510 to prohibit a person who has tested positive for HIV or AIDS from engaging in sexual intercourse, deviate sexual intercourse, or sexual activity with another person; provide penalties; amend KRS 529.090 relating to prostitution by person with HIV to provide similar penalties and to increase penalty for promoting such prostitution from Class D to Class A felony.
SFA (17, E. Rose) - Delete provision allowing courts to approve pretrial diversions over the objections of Commonwealth's attorneys.
SFA (18, E. Rose) - Delete evidence not foreclosing doubt as a mitigating factor in capital sentencing.
SFA (19, E. Tori) - Amend statutes on driving under the influence to lower the legal blood or breath alcohol limit from 0.10 to 0.08.
SFA (20, E. Tori) - Increase the service fee assessed against persons convicted of driving under the influence from two hundred dollars ($200) to two hundred and fifty dollars ($250); provide for how the fee is to be distributed and spent; allow police to take possession of licenses of those charged with driving under the influence; provide procedures for issuing temporary licenses and holding hearings on suspension or revocation.
SFA (21, D. Williams) - Revise the crime of ethnic intimidation to eliminate the enhancement of penalty; require the finding to be made by sentencing judge by preponderance of the evidence; permit judge to use finding as sole reason for denying probation, shock probation, or conditional discharge; permit parole board to use same finding as sole reason for denying or delaying parole.
SFA (22, W. Blevins) - Create a new section of KRS Chapter 433 to permit persons convicted under the former armed robbery statute, KRS 433.140, which called for a sentence of life imprisonment, to be resentenced by the circuit court in which they were convicted to the present sentence for robbery in the first degree,which is a Class B felony with a maximum sentence of 20 years (persons resentenced would be given credit for time served under the prior statute and thus would be released from prison).
SFA (23, D. Karem) - Provide that the requirements of Sections 10 and 11 of HB 52 apply mandatorily only to deputy sheriff merit boards created after the normal effective date for the 1998 Regular Session; permit the primary legislative body of a county in which a deputy sheriff merit board is in existence prior to that date to elect to be subject to those requirements.
CCR - Report that the conference committee could not agree and request the appointment of a free conference committee.
FCCR (Majority Report) - Delete Senate Floor Amendment #4, relating to adding gender, age, and disability, to the hate crime statute; delete Senate Floor Amendment #23, relating to deputy sheriff merit boards created prior to the effective date of HB 455; amend Senate Floor Amendment #21, relating to "ethnic intimidation," to change reference to "hate crime"; require that Criminal Justice Council recommendations to the General Assembly be made to the Interim Joint Committee on Judiciary not later than July 1 of the year proceeding a regular session of the General Assembly; change the crime of "ethnic intimidation" to "hate crime"; delete the aggravating circumstance that a murder was premeditated; recommend unofficially that the matter be studied by the Criminal Justice Council; add to the sex offender registration provisions (Megan's Law) a provision that a sex offender from out of state must register in Kentucky if they come into the state for employment or education; include among persons who must register persons convicted of sexual offenses under laws of another state, persons convicted by a court martial, and persons convicted under federal law; amend KRS 189A.010, relating to driving under the influence, to reduce the mandatory 7 day incarceration if alcohol concentration is 0.18 or above to permit a judge to probate 5 of the 7 days; delete the mandatory 14-day imprisonment for second offense when alcohol concentration is 0.18 or above; specify that if a person is convicted of a third offense DUI and has an alcohol concentration of 0.18 or above that the offense is a Class D felony rather than a misdemeanor; retain existing third offense penalty if alcohol concentration is below 0.18; amend KRS 64.092 to require that a sheriff or other law enforcement officer serving as a bailiff be paid $8.00 per hour; amend KRS 403.7257 to require that foreign protective orders be authenticated prior to their enforcement; delete requirement for filing of such orders with the court; repeal KRS 518.070, which creates the crime of ticket scalping; require the Criminal Justice Council to study the matter of hate crime and make recommendations for legislative changes to the Interim Joint Committee on Judiciary not later than July 1, 1999; recommend adoption of the Senate Committee Substitute for HB 455/GA, except as provided in this report.
FCCR (Minority Report) - Adopt original Free Conference Committee Report, 984284, with deletion of the repeal of KRS 518.070, which creates the crime of ticket scalping.
Jan 29-introduced in House
Feb 2-to Judiciary (H); posting waived; posted in committee
Feb 11-reported favorably, 1st reading, to Calendar with Committee Substitute
Feb 12-2nd reading, to Rules; posted for passage in the Regular Orders of the Day for February 17, 1998
Feb 17-floor amendments (1) and (2) filed to Committee Substitute; recommitted to Appropriations and Revenue (H)
Feb 19-floor amendment (3) filed to Committee Substitute; posted in committee
Feb 25-reported favorably, to Rules with Committee Substitute (2)
Feb 26-floor amendments (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) and (17) filed to Committee Substitute (2)
Feb 27-floor amendments (18) (19) (20) and (21) filed to Committee Subsitute (2); posted for passage in the Regular Orders of the Day for March 2, 1998
Mar 2-3rd reading, Floor Amendment (14) withdrawn; passed 93-0 with Committee Substitute (2) and Floor Amendments (4) (5) (6) (9) (10) (12) (15) (16) (17) (18) (19) (20)
Mar 3-received in Senate
Mar 4-to Judiciary (S)
Mar 6-floor amendment (1) filed
Mar 11-floor amendment (1) withdrawn
Mar 23-reported favorably, 1st reading, to Consent Calendar with Committee Substitute
Mar 24-floor amendments (2) through (11) filed to Committee Substitute; 2nd reading, to Rules; posted for passage in the Consent Orders of the Day for March 25, 1998
Mar 25-floor amendments (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22) and (23) filed to Committee Substitute; taken from the Consent Orders of the Day, placed in the Regular Orders of the Day
Mar 26-3rd reading,; floor amendments (3) (9) (12) (13) (14) and (22) withdrawn; floor amendments (5) (7) (11) (16) (17) and (20) defeated; floor amendment (8) ruled not germane; floor amendment (19) ruled out of order; passed 36-0 with Committee Substitute, floor amendments (2) (4) (6) (10) (15) (18) (21) and (23)
Mar 27-received in House; posted for passage for concurrence in Senate amendments
Mar 31-House refused to concur in Senate Committee Substitute and attached floor amendments; received in Senate; posted for passage for receding from Senate amendments; Senate refused to recede from Senate Committee Substitute and attached floor amendments; Conference Committee appointed in House and Senate; Conference Committee report filed in House and Senate; Conference Committee report adopted in House and Senate; Free Conference Committee appointed in House and Senate
Apr 1-Free Conference Committee report filed in House and Senate
Apr 2-Second Free Conference Committee appointed in House and Senate; Second Free Conference Committee report filed in House and Senate; House adopted Second Free Conference Committee report,; passed 87-1; Senate adopted Second Free Conference Committee report; passed 31-0; floor amendment (21) withdrawn; enrolled, signed by each presiding officer, delivered to Governor
Apr 14-signed by Governor