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

 

      RELATES TO: KRS 196.030, 439.250, 439.3105-439.3108, 439.551, 439.553, 446.010

      STATUTORY AUTHORITY: KRS 196.035, 439.3106, 439.3107, 439.3108, 439.470, 439.551, 439.553

      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) "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) "Offender" means a person placed under the supervision of the division by a court with jurisdiction over the sentence.

      (6) "Officer" or "probation and parole officer" means a person employed by the division who supervises, counsels, and directs an offender on probation.

      (7) "Releasing authority" means the court with jurisdiction over the sentence that granted 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) "Risk and needs assessment" is defined in KRS 446.010(38).

 

      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;

      (c) Severity of the current violation;

      (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 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.

      (3) If the officer determines that an informal response and graduated sanctions are not appropriate, then the officer shall report the violation to the releasing authority.

      (4) If a determination is made by the officer to proceed with graduated sanctions the officer shall:

      (a) Determine whether the violation is a major or minor violation in accordance with Sections 3 and 4 of this administrative regulation; and

      (b) Review the probation and parole violation matrix in Section 5 of this administrative regulation to impose sanctions.

      (5) 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 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.

      (6) 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 5 of this administrative regulation to cross reference the violation behavior category as determined in subsection (5) of this section with the offender's risk and needs level to determine the sanctions available in the indicated response range.

      (7) 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.

      (8) 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.

      (9) 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; and

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

      (10) 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.

      (11) 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; and

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

 

      Section 3. Minor Violations. Minor violations shall include 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;

      (17) Failure to complete community service; and

      (18) Other violations of similar magnitude.

 

      Section 4. 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)(b) of this administrative regulation;

      (2) Failure to comply with treatment;

      (3) Multiple minor violations within ninety (90) days;

      (4) Multiple positive drug or alcohol tests or high risk behavior;

      (5) Refusal to submit to an alcohol or drug test;

      (6) Intimidating or threatening a probation and parole officer;

      (7) Possession or use of a weapon other than a firearm by an offender;

      (8) Failure to comply with sex offender registry;

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

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

      (11) Violation of travel restrictions to another state;

      (12) Violation of curfew with electronic monitoring device;

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

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

      (15) Failure to participate in a required program or service; 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 (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

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

      (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 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; 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 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;

      (c) The district supervisor or designee 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 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 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;

      (c) Continue the detention if other legal process permits; or

      (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; and

      (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:

      (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. (38 Ky.R. 1517; 1732; eff. 5-4-2012; TAm 10-22-2013.)