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.
"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.
"Demonstrated pattern of failure to comply with conditions of supervision" means that the offender has a major violation of the same or similar condition of supervision more than three (3) times over the course of the offender's supervision.
"High risk behavior" means an action or activity that places a person at risk of violating a condition of supervision or committing a crime .
"Offender" means a person placed under the supervision of the division by a court with jurisdiction over the sentence.
"Officer" or "probation and parole officer" means a person employed by the division who supervises, counsels, and directs an offender on probation.
"Revocation" means an offender having his probation ended and being incarcerated as a result of a hearing for violations of conditions of supervision.
"Probation and parole violation matrix" means the table in Section 6 of this administrative regulation that addresses sanction decisions.
Unless otherwise ordered by the court, the officer may resolve the following minor violations through an informal case management strategy:
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:
New misdemeanor conviction of violation of emergency protective, domestic violence, or interpersonal protective order;
The officer shall provide the violation documentation to a supervisor and discuss the case prior to submitting the violation documentation to the releasing authority.
Review for Graduated Sanctions and Use of the Matrix. If the violation is not handled by an informal response as established in Section 2 of this administrative regulation and the sentencing court orders the offender to be subject to graduated sanctions as part of the conditions of his probation, then to the extent that this administration regulation is not in conflict with the orders of the court, graduated sanctions shall be applied as follows:
Determine whether the violation is a major or minor violation in accordance with Sections 4 and 5 of this administrative regulation; and
Review the probation and parole violation matrix in Section 6 of this administrative regulation to impose sanctions or determine other appropriate action as directed in this administrative regulation.
If there are multiple violations, the officer shall use the most serious violation for the review for sanctions.
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.
If the offender has violated conditions of supervision imposed in more than one (1) case (i.e., multiple cases from a single jurisdiction, cases from multiple jurisdictions, or on supervision for probation and parole or other form of community supervision), the officer shall determine the criminal conviction in the case for which the graduated sanctions will be imposed. A graduated sanction shall not be imposed on more than one case at a time and cases shall not be sanctioned separately for individual violations arising from the same series of violations.
Determine the offender's risk and needs level based on the offender's most recent risk and needs assessment; and
Use the probation and parole violation matrix in Section 6 of this administrative regulation to cross reference the violation behavior category as determined in subsection (3) of this section with the offender's risk and needs level to determine the sanctions available in the indicated response range.
Discuss with a supervisor an appropriate graduated sanction for the violation prior to completing the violation report;
Complete and provide the violation report to the supervisor including information about compliance with the probation and parole matrix in Section 6 of this administrative regulation;
State the reasons for a recommendation of an alternative response outside of the responses outlined in the probation and parole matrix, if the officer makes an alternative response recommendation. The reasons may include:
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;
The sanctions from the indicated response range or a lower response range are insufficient for the circumstances of the violation and recommends revocation;
The officer determines that the offender has failed to comply with prior graduated sanctions imposed and further implementation of graduated sanctions would be futile;
Document the approval, denial, or resubmission of an alternative graduated sanction action in the offender management system.
Upon receiving a recommendation for graduated sanctions, the supervisor shall review the recommendation and:
Reject the recommendation and refer the violation back to the officer for alternative sanctions or revocation.:
Issuance of an emergency protective order, domestic violence order, or interpersonal protective order;
Misdemeanor conviction that does not require submission to the releasing authority pursuant to Section 2(2)(a) of this administrative regulation;
Probation and Parole Violation Matrix. The following matrix shall be used to determine allowable graduated sanctions for probation violations:
| PROBATION AND PAROLE VIOLATION MATRIX | |||||||
| OFFENDER RISK LEVEL | |||||||
| VIOLATION | Very High | High | Moderate | Low | Admin | ||
| 1st Minor | 2 | 1 | 1 | 1 | 1 | ||
| 2nd Minor | 3 | 2 | 2 | 2 | 1 | ||
| 3rd (or more) Minor | 4 | 3 | 3 | 2 | 2 | ||
| 1st Major | 4 | 3 | 3 | 2 | 2 | ||
| 2nd Major | 4 | 3 | 3 | ||||
| 3rd (or more) Major | 4 | 4 | 4 | ||||
| Response Range 1 | Response Range 2 | Response Range 3 | Response Range 4 | ||||
| Any response or combination of responses in range 1 or: | Any response or combination of responses in ranges 1-2 or: | Any response or combination of responses in ranges 1-3 or: | |||||
| Verbal or Written Warning Evidence Based Programming Coaching by supervisor & officer Increase Reporting Increase Frequency of Drug Testing Referral to programming approved by the Department Up to 3 days Discretionary Detention with Supervisor Approval Increase Level of Supervision Loss of Travel or Other Privileges Curfew up to 30 days | Curfew up to 60 days Community Service 20-30 hours Electronic Monitoring Increased Treatment Up To Residential Up to 5 days Discretionary Detention with Supervisor Approval | Curfew up to 120 days Community Service 30-40 hours Halfway House 6-10 days Discretionary Detention with Supervisor Approval Jail Time in excess of 10 days (requires hearing with releasing authority) | Curfew up to 180 days Community Service 40-50 hours Additional jail time at the discretion of the releasing authority Request Revocation | ||||
| Referral to the Social Service Clinician for substance abuse assessment and treatment Referral to Community Service Agency for Counseling or Treatment Community Service up to 8 hours | |||||||
| *Upon consideration of the totality of the circumstances and with supervisory approval, the officer may direct the offender into appropriate interventions not included in the violation matrix or seek to impose a high lever sanction, up to and including revocation. Discretionary detention for probationers shall be implemented pursuant to this administrative regulation to the extent that it is not in conflict with the orders of the court. | |||||||
Prior to imposing the graduated sanctions, the officer shall prepare a probation violation report with graduated sanctions. The report shall include:
Provide a copy of the probation graduated sanctions violation report to the offender prior to the imposition of sanctions;
Ask the offender if he can read the probation graduated sanctions violation report. If the offender states that he cannot read, then the officer shall read the report to the offender; and
Ask the offender if he can understand English. If the offender informs the officer that he cannot understand English, the officer shall provide the offender with a probation graduated sanctions violation report in the offender's language or a language interpreter, if available. If the report cannot be provided in the offender's language and a language interpreter is not available, then the officer shall report the violation behavior to the court for disposition in lieu of proceeding with the graduated sanctions process.
If the offender indicates to the officer that he does not understand his rights as stated in the probation graduated sanctions violation report, the officer shall report the violation behavior to the court for disposition in lieu of proceeding with the graduated sanctions process.
If the offender chooses to waive his right to a violation hearing and elects to participate in the graduated sanctions process, then:
The officer shall provide the probation graduated sanctions violation report to the releasing authority; and
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.
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.
If the officer recommends discretionary detention as a graduated sanction, the officer shall review the offender's record to determine if the recommended days of detention will cause the offender to serve more than sixty days in discretionary detention during the calendar year as limited by KRS 439.3108.
The officer shall determine a period of detention, not to exceed ten days in compliance with the probation and parole matrix in Section 6 of this administrative regulation.
The officer shall seek approval from a supervisor for the detention. If the officer takes the offender into custody, the officer shall:
Reject the recommendation and refer the violation back to the officer for alternative sanctions or revocation.
If the officer recommends discretionary detention as a graduated sanction in excess of ten (10) consecutive days:
Submit the violation report to the releasing authority with the reason for the additional detention days, if approval is received from a supervisor; and
Reject the recommendation and refer the violation back to the officer for alternative sanctions or revocation.
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.
The officer shall document the violation and provide notice to the offender and the releasing authority pursuant to the provisions of Section 7 of this administrative regulation.
After consideration of the totality of the circumstances, if the officer determines that graduated sanctions are not appropriate for the violation and seeks to return the offender to the releasing authority for violation proceedings, the officer shall discuss the case with a supervisor.
Graduated sanctions have been previously imposed or the serious nature of the violation merits return to the releasing authority;
The case review shall be documented in the offender management system by the supervisor, including why graduated sanctions were not appropriate and the factors used to make the recommendation to the releasing authority.
Compliance Incentives. An officer may use proportionate incentives for compliance with conditions of supervision including:
CONTACT PERSON: Amy V. Barker, Assistant General Counsel, Justice & Public Safety Cabinet, 125 Holmes Street, Frankfort, Kentucky 40601, Justice.RegsContact@ky.gov, telephone number (502) 564-8207, facsimile number (502) 564-6686.
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.
"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.
"High risk behavior" means a lifestyle activity that places a person at risk of suffering a particular harmful condition .
"Offender" means a person placed under the supervision of the division by a court with jurisdiction over the sentence.
"Officer" or "probation and parole officer" means a person employed by the division who supervises, counsels, and directs an offender on probation.
"Revocation" means an offender having his probation ended and being incarcerated as a result of a hearing for violations of conditions of supervision.
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:
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.
In lieu of graduated sanctions , the officer may resolve the following minor violations through an informal case management strategy:
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: