501 KAR 1:030. Determining parole eligibility.

501 KAR 1:030. Determining parole eligibility.

RELATES TO: KRS 119.025, 197.410(2), 346.185, 439.340, 439.3401, 439.563, 532.043, 532.060, 532.080, 640.080

STATUTORY AUTHORITY: KRS 439.340(3)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 439.340(3) requires the Kentucky Parole Board to promulgate administrative regulations with respect to eligibility of prisoners for parole. This administrative regulation establishes the criteria for determining parole eligibility.

Section 1. Definitions. (1) "Board" is defined by KRS 439.250(5).

(2) "Chair" means the chairman of the board.

(3) "Deferment" means a decision by the board that an inmate shall serve a specific number of months before further parole consideration.

(4) "Detainer" means a document issued or made by a legal authority, authorizing the keeper of a prison or jail to keep the person named in the document in custody.

(5) "Parole" means the release of an inmate with a signed parole certificate to:

(a) The community prior to the expiration of his sentence, subject to conditions imposed by the board and subject to its supervision;

(b) Answer the detainer.

(6) "Parole recommendation" means a decision of the board that an inmate may be released from incarceration prior to the expiration of his sentence.

(7) "Parole rescission" means a decision of the board to terminate or rescind an inmate's parole recommendation, before the inmate is actually released on parole.

(8) "Parole revocation" means the formal procedure by which the board may terminate or revoke a parolee's release on parole.

(9) "Physical injury" is defined in KRS 500.080(13).

(10) "Preliminary revocation hearing" means the initial hearing conducted by a hearing officer to determine whether probable cause exists to believe a parolee has violated the conditions of his parole.

(11) "Reconsideration" means a decision to review a previous board action.

(12) "Restitution" is defined in KRS 532.350(1)(a).

(13) "Serious physical injury" is defined in KRS 500.080(15).

(14) "Serve-out", "SOT", or "serve-out-time" means a decision of the board that an inmate shall serve until the completion of his sentence.

(15) "SOTP" means Sex Offender Treatment Program.

(16) "Youthful offender" is defined in KRS 600.020(63).

Section 2. Ineligibility. (1) An eligible sex offender, as defined in KRS 197.410(2), convicted prior to July 15, 1998 shall not be eligible for a parole consideration hearing unless:

(a) He has been denied entrance into the Sex Offender Treatment Program;

(b) He has been terminated from the SOTP; or

(2) On or after July 15, 1998, a sex offender’s eligibility shall be governed by KRS 197.045(4).

(3) On or after July 15, 1998, a person confined to a state penal institution or county jail as a result of the revocation of his conditional discharge by the court pursuant to KRS 532.043 and 532.060 shall not be eligible for parole consideration.

(4) If an inmate is within sixty (60) days of being released by minimum expiration, administrative release, or maximum expiration at the time of his next scheduled parole hearing, the inmate shall not be eligible for parole.

Section 3. Parole Eligibility. (1) Initial parole review date. Except as provided by Section 2 of this administrative regulation, a person confined to a state penal institution or county jail shall have his case reviewed by the board, in accordance with the following schedules:

(a) Nonviolent offender convicted of a Class D felony with an aggregate sentence of one (1) to five (5) years.

1. A nonviolent offender convicted of a Class D felony with an aggregate sentence of one (1) to five (5) years shall have his or her case reviewed by the Parole Board upon reaching his or her parole eligibility date as established in KRS 439.340(3)(a).

2. Except as provided by subparagraph 3 of this paragraph, the offender shall be released on parole if the offender:

a. Has completed the programs recommended by the Kentucky Department of Corrections;

b. Has not been found to have committed a disciplinary violation that is ranked as Category 3 and involves violence or that is ranked as Category 4 or higher, pursuant to Corrections Policy and Procedures 15.2 and 15.6, incorporated by reference in 501 KAR 6:020; and

c. Does not have an active detainer.

3. The offender shall not be released under subparagraph 2 of this paragraph if the offender:

a. Is a violent offender as defined in KRS 439.3401;

b. Is convicted of a sex crime listed in KRS Chapter 510, 530.020, 530.064(1)(a), 531.310, or 531.320; or

c. Is convicted of a crime in which the elements of the offense or the judgment of the Court demonstrate that in the commission of the crime:

(i) A weapon was used;

(ii) A human life was taken; or

(iii) A serious physical injury occurred.

(b) If convicted of a felony offense after December 3, 1980:

Sentence Being Served	Time Service Required Before First Review (Minus Jail Credit)
1 year, up to but not including 2 years	4 months
2 years, up to and including 39 years	20% of sentence received
More than 39 years, up to and including life	8 years
Persistent felony offender I in conjunction with a Class A, B, or C felony	10 years

(c) For a crime, committed on or after July 15, 1998, which is a capital offense, Class A felony, or Class B felony where the elements of the offense or the judgment of the court demonstrate that the offense involved death or serious physical injury to the victim or Rape 1 or Sodomy 1:

Sentences of a number of years	85% of sentence received or 20 years, whichever is less
Sentences of life	20 years

(d) For a crime, committed on or after July 15, 2002, which is:

1. Burglary in the first degree accompanied by the commission or attempted commission of a felony sexual offense in KRS Chapter 510;

2. Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020, 508.032, or 508.060;

3. Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040; or

4. Robbery in the first degree:

Sentences of a number of years	85% of sentence received or 20 years, whichever is less
Sentences of life	20 years

(e) For a crime, committed on or after July 12, 2006, which is:

1. A capital offense;

2. Class A felony;

3. Complicity to a Class A felony;

4. Class B felony involving the death of the victim or serious physical injury to a victim;

5. The commission or attempted commission of a Class A or B felony sex offense in KRS Chapter 510;

6. The use of a minor in a sexual performance as described in KRS 531.310(2)(b) and KRS 531.310(2)(c);

7. Promoting a sexual performance by a minor as described in KRS 531.320(2)(b) and KRS 531.320(2)(c);

8. Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a) when the minor is less than sixteen (16) years old or if the minor incurs physical injury;

9. Promoting prostitution in the first degree as described in KRS 529.030(1)(a) when the minor is less than sixteen (16) years old or if the minor incurs physical injury;

10. Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020, 508.032, or 508.060;

11. Burglary in the first degree accompanied by the commission or attempted commission of kidnapping as prohibited by KRS 509.040; or

12. Robbery in the first degree:

Sentences of a number of years	85% of sentence received or 20 years, whichever is less
Sentences of life	20 years

(f) For a crime, committed on or after June 26, 2007, which is:

1. A capital offense;

2. Class A felony;

3. Complicity to a Class A felony;

4. Class B felony involving the death of the victim or serious physical injury to a victim;

5. The commission or attempted commission of a Class A or B felony sex offense in KRS Chapter 510;

6. The use of a minor in a sexual performance as described in KRS 531.310(2)(b) and 531.310(2)(c);

7. Promoting a sexual performance by a minor as described in KRS 531.320(2)(b) and 531.320(2)(c);

8. Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a) when the minor is less than sixteen (16) years old or if the minor incurs physical injury;

9. Human trafficking as described in KRS 529.010(5)(b) when the victim is a minor;

10. Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020, 508.032, or 508.060;

11. Burglary in the first degree accompanied by the commission or attempted commission of kidnapping as prohibited by KRS 509.040; or

12. Robbery in the first degree:

Sentences of a number of years	85% of sentence received or 20 years, whichever is less
Sentences of life	20 years

(g) For any crime, committed on or after July 15, 1986, but prior to July 15, 1998, which is a capital offense, Class A felony, or Class B felony where the elements of the offense or the judgment of the court demonstrate that the offense involved death or serious physical injury to the victim or Rape 1 or Sodomy 1:

Sentences of a number of years	50% of the sentence received or 12 years, whichever is less
Sentence of life	12 years

(h) If convicted of a felony offense committed prior to December 3, 1980:

Sentence Being Served	Time Service Required Before First Review (Minus Jail Credit)
1 year	4 months
More than 1 year and less than 18 months	5 months
18 months up to and including 2 years	6 months
More than 2 years and less than 2 1/2 years	7 months
2 1/2 years up to 3 years	8 months
3 years	10 months
More than 3 years, up to and including 9 years	1 year
More than 9 years, up to and including 15 years	2 years
More than 15 years, up to and including 21 years	4 years
More than 21 years, up to and including life	6 years

(i) For an individual serving multiple sentences, if one (1) or more of the crimes resulted in a conviction committed under paragraph (c) of this subsection and one (1) or more of the crimes resulted in a conviction committed under paragraph (b) of this subsection, parole eligibility shall be calculated by applying the parole eligibility criteria in effect at the time the most recent crime was committed.

(j) Except as provided by subparagraphs 1 and 2 of this paragraph, after the initial review for parole, a subsequent review, during confinement, shall be at the discretion of the board.

1. The maximum deferment given at one (1) time shall not exceed the statutory minimum parole eligibility for a life sentence.

2. The maximum deferment given at one time shall not exceed twenty-four (24) months for an offender convicted of a Class D or Class C felony except for:

a. A violent offender as defined in KRS 439.3401;

b. An offender convicted of a sex offense listed in KRS Chapter 510, 530.020, 530.064(1)(a), 531.310, or 531.320; and

c. An offender who has ever been convicted of a crime in which the elements of the offense or the judgment of the court demonstrate that in the commission of the crime:

(i) A human life was taken;

(ii) A serious physical injury occurred; or

(iii) A sex offense listed in KRS Chapter 510, 530.020, 530.064(1)(a), 531.310, or 531.320 was committed.

3. The board, at the initial or a subsequent review, may order a serve-out on a sentence, except as provided by Section 3(1)(b)2 of this administrative regulation. If the sentence is a life sentence, the full board shall vote.

(k)1.a. Except as provided by clause b of this subparagraph, if a confined prisoner is sentenced for a felony committed prior to the date of his current incarceration, he has not been discharged since his original admission, and if this new conviction will be served consecutively, the sentence received for the latter conviction shall be added to the sentence currently being served to determine his parole eligibility.

b. If the sentence received for the latter conviction requires the prisoner to serve a fixed percentage of the sentence or a fixed number of years prior to becoming eligible for parole, parole eligibility shall be determined by the latter conviction only.

2.a. If a confined prisoner is a returned parole violator who receives an additional consecutive sentence, his parole eligibility shall be calculated on the length on the new sentence only, beginning from the date of his final sentencing, unless the board has previously set a new parole eligibility date.

b. If the board has previously set a new parole eligibility date, the parole eligibility date shall be the date which last occurs.

3. If parole is recommended, and a confined prisoner receives an additional sentence after board consideration, but before his release:

a. The recommendation of parole shall automatically be voided; and

b. The new parole eligibility date shall be calculated from the date of original admission on the aggregate sentences.

(l) If an inmate commits a crime while confined in an institution or while on an escape and receives a concurrent or consecutive sentence for this crime, eligibility time towards parole consideration on the latter sentence shall not begin to accrue until he becomes eligible for parole on his original sentence. This shall include a life sentence.

1. Except as provided by subparagraph 2 of this paragraph, in determining parole eligibility for an inmate who receives a sentence for an escape, a sentence for a crime committed while in the institution, or on a sentence for a crime committed while on an escape, the total parole eligibility shall be calculated by adding the following, regardless of whether the sentences are ordered to run concurrently or consecutively:

a. The amount of time to be served for parole eligibility on the original sentence;

b. If the inmate has an additional sentence for escape, the amount of time to be served for parole eligibility on the additional sentence for the escape;

c. If the inmate has an additional sentence for a crime committed while in the institution, the amount of time to be served for parole eligibility on the additional sentence for the crime committed while in the institution; and

d. If the inmate has an additional sentence for a crime committed while on escape, the amount of time to be served for parole eligibility on the additional sentence for the crime committed while on escape.

2. If the board has previously set a parole eligibility date for an inmate described in subparagraph 1 of this paragraph, and that date is later than that calculated under subparagraph 1 of this paragraph, the later date shall be the parole eligibility date.

(m)1. Except as provided by subparagraph 2 of this paragraph, if a confined prisoner who has previously met the board is given a deferment, escapes during the period of the deferment, and returns from that escape without a new sentence for the escape, the time out on the escape shall be added to the original deferment date to arrive at the new adjusted date.

2.a. If the prisoner later receives a sentence for the escape, the previous deferment shall be automatically voided and the new parole eligibility date shall be calculated based on the new sentence beginning from the date of sentencing for the new sentence, unless the deferment date set by the board is a later date than that determined by the calculations.

b. If the deferment date set by the board is a later date, the parole eligibility date shall be the date which last occurs.

(n) If an inmate receives a serve-out or deferment on his original sentence prior to receiving an escape sentence or a sentence for a crime committed while on escape or confined in an institution, his parole eligibility date shall be calculated from the date of his new sentence or from the date previously set by the board, whichever occurs last.

(o) If an inmate receives a parole recommendation but escapes prior to being released, the parole recommendation shall be void. Upon return to a state institution, the board shall, as soon as possible, conduct a file review and set or fix his parole eligibility date. If the board so determines it may conduct a face-to-face hearing with this person at the institution with a three (3) member panel.

(p) If a person is shock probated, or on prerelease probation, and is later returned to the institution as a shock probation violator or prerelease probation violator, his new parole eligibility shall be calculated by adding the period of time the inmate is on shock probation or prerelease probation to his original parole eligibility date.

(q) If a person on shock probation or prerelease probation is returned to the institution with a new consecutive sentence acquired while on shock probation or prerelease probation, he shall be eligible for a parole hearing if he has reached parole eligibility on the aggregate of the two (2) sentences. The time served toward parole eligibility prior to discharge by shock probation or prerelease probation shall be included as part of the total period of time to be served for parole eligibility on the aggregate sentences. The time spent out on shock probation or prerelease probation shall not be included as part of the total period of time to be served for parole eligibility.

(r) If a person on parole is returned to the institution, has received a new sentence for a crime committed while on parole, and is probated or shock probated on the new sentence, the board shall, as soon as possible, conduct a file review and set or fix his parole eligibility date. If the board so determines, it may conduct a face-to-face hearing with this person at the institution with a panel of at least two (2) members.

(2) The parole hearing shall consist of an interview with the inmate by the board, or a panel. If the inmate is too ill to appear:

(a) the board may appoint one (1) member to interview the inmate in the health care facility where he is confined and report back to the remaining members; and

(b) A majority vote by a quorum shall be required before action is taken.

(3) If an inmate refuses to meet the board on his scheduled hearing date, a statement to that effect signed by the inmate and the institutional parole officer shall be presented to the board. A person refusing to meet the board may petition the board for reconsideration.

(4) An inmate who is psychologically unstable may be deferred in absentia until he is able to meet the board if the board receives documentation from a certified psychologist or psychiatrist.

(5) The board shall schedule the initial parole hearing as follows:

(a) For an institution that has hearings scheduled once per month, the inmate shall, if administratively possible, be seen during the month he is eligible for parole consideration.

(b) For an institution that has hearings scheduled bimonthly, the inmate shall, if administratively possible, be seen during the month eligible or one (1) month prior to the month he is eligible for parole consideration.

(c) If it is not administratively possible to conduct the initial parole hearing during the month the inmate is eligible, the inmate shall be seen at the next available board hearing conducted at the institution where the inmate is housed.

Section 4. Board Criteria for Recommending or Denying Parole. (1) Before recommending or denying parole, the board shall apply one (1) or more of the following factors to an inmate:

(a) Current offense - seriousness, violence involved, firearm used, life taken or death occurred during commission;

(b) Prior record - prior felony convictions, prior misdemeanor convictions, history of violence, prior contact with law enforcement or criminal courts where conviction did not occur;

(d) Attitude toward authority - before and during incarceration;

(e) History of alcohol or drug involvement;

(f) History of prior probation, shock probation or parole violations;

(g) Education and job skills;

(h) Employment history;

(i) Emotional stability;

(j) Mental status - capacity and stability;

(k) Terminal illness;

(l) History of deviant behavior;

(m) Official and community attitudes toward accepting an inmate back in the county of conviction;

(n) Victim impact statement and victim impact hearing;

(o) Review of parole plan - housing, employment, need for community treatment and follow-up resources; and

(p) Other factors involved that relate to public safety or the inmate's needs.

(2) If the board makes a parole recommendation:

(a) It may rescind the recommendation at any time prior to the release of an inmate on parole; and

(b) Parole shall not become effective until the home placements are approved, the parole certificate is signed, and the inmate leaves the institution.

(3) The board may reconsider a decision to deny parole if the chair requests the full board to reconsider a decision, the full board votes in writing, and the majority votes in favor of the reconsideration hearing.

(4) An inmate whose parole is revoked, rescinded or denied by deferment or serve-out, or his authorized legal representative, may request an appellate review by the board. A request for the review shall be in writing and shall be postmarked no later than twenty-one (21) days from the date the final disposition is made available to the inmate. If the request is not postmarked within twenty-one (21) days, it shall be denied. The request shall be screened by a board member or his designee to decide if a review shall be conducted. A review shall be conducted for the following reasons:

(a) If there is an allegation of misconduct by a board member that is substantiated by the record;

(b) If there is a significant procedural error by a board member; or

(c) If there is significant new evidence that was not available when the hearing was conducted. A request based on the availability of new evidence or information shall be accompanied by adequate documentation.

(5) A request for appellate review shall be based on one (1) or more of the reasons established in subsection (4) of this section. A request based on an allegation of misconduct or significant procedural error shall clearly indicate the specific misconduct or procedural error. If the case is set for review, it shall be conducted from the record of the first hearing. The appearance of the inmate shall not be necessary. If a board member wishes to have additional testimony, an appearance hearing may be conducted. The board shall vote after reviewing the initial taped interview and the record. A decision to change the result of the hearing that is the subject of the appeal shall require the concurrence of a quorum of the board. This decision shall be final.

Section 5. Youthful Offender. (1) A youthful offender shall be subject to the jurisdiction of the board as described in KRS 640.080.

(2) The Department of Juvenile Justice and the Department of Corrections shall provide the board with necessary records to conduct a hearing as described in KRS 640.100.

(3) A youthful offender shall be subject to the board's applicable administrative regulations.

(4) A youthful offender housed by the Department of Juvenile Justice shall have a hearing at a site agreed upon by that department and the board.

(5) A youthful offender housed by the Department of Corrections shall have a hearing at a site determined by the board.

(6) An administrative law judge shall hold a preliminary revocation hearing at a facility out of sight and sound of adult inmates.

(7) A final revocation hearing for a youthful offender shall be held at a site agreed upon by the Department of Juvenile Justice and the board or the central office of the board.

(8) Special hearings for a youthful offender shall be held in central office.

Section 6. Conditions of Parole. (1) The parolee shall:

(a) Report to his parole officer immediately upon arrival at his destination and submit a report in writing once a month, or more if directed by the officer;

(b) Permit his parole officer to visit his home and place of employment at any time;

(d) When directed to do so by the parole officer, submit to random tests of blood, breath, saliva, or urine to determine the existence of any illegal substances in his system;

(e) Work regularly and support his legal dependents; if unemployed, he shall report this fact to his officer and make every attempt to obtain other employment;

(f) Not associate with a convicted felon except for a legitimate purpose, including family, residential, occupational, or treatment;

(g) Not visit with an inmate of a penal institution without permission of his parole officer;

(h) Not leave the state, district, residence, or place of employment without written permission of his parole officer;

(i) Not be permitted to purchase, own, or have in his possession a firearm or other weapon;

(j) Not violate any law or city ordinance of this state, any other state or the United States;

(k) Not falsify any report to his parole officer;

(l) Not have the right to register for voting purposes and may not hold office; if he registers or reregisters prior to restoration of his civil rights, he shall be in violation of the law which carries a maximum penalty of five (5) years in prison pursuant to KRS 119.025;

(m) Comply with 501 KAR 1:030 through 501 KAR 1:050 and special instructions of his parole officer;

(n) Pay a supervision fee unless expressly waived by the board;

(o) Pay the balance of the restitution ordered pursuant to KRS 439.563; and

(p) Pay the balance of the sum payable to the Crime Victims Compensation Fund pursuant to KRS 346.185.

(2) If additional supervision or conditions are deemed necessary in a case, the board may order a parolee to observe any condition the board has determined is necessary for the safety of the public or rehabilitation of the parolee. (15 Ky.R. 1186; Am. 1467; eff. 12-2-1988; 2424; eff. 7-26-1989; 21 Ky.R. 2165; 2671; eff. 5-4-1995; 24 Ky.R. 2143; 25 Ky.R. 69; eff. 7-13-1998; 607; 1352; eff. 12-17-1998; 27 Ky.R. 3347; 28 Ky.R. 615; eff. 9-10-2001; 36 Ky.R. 910; 1201; eff. 1-4-2010.)