Thursday, June 9, 2011

Policy Pronouncements - HB 463

In all motions arguing for application of the new statute, the stated policies of the legislature should be cited.

New Section of KRS 532

It is the sentencing policy of the Commonwealth of Kentucky that:
(1) The primary objective of sentencing shall be to maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced;
(2) Reduction of recidivism and criminal behavior is a key measure of the performance of the criminal justice system;
(3) Sentencing judges shall consider:

(b) The likely impact of a potential sentence on the reduction of the defendant's potential future criminal behavior;

Observation - Under what situations would sentencing a defendant to prison improve the outcome for the defendant? Rarely, one would think. Unless prison is necessary to maintain public safety, community supervision with appropriate conditions will usually best meet the stated “sentencing policy of the Commonwealth of Kentucky.”

Practice Tip – Be prepared to argue Separation of Powers if a judge decides not to follow the legislatively enacted sentencing policy of the Commonwealth. Under Section 28 of the Kentucky Constitution, no branch of government may exercise power belonging to another branch. “Sentencing policy” is clearly within the exclusive jurisdiction of the legislative branch and it is for the judicial branch to apply the law as written.

New Section of KRS 218A
The General Assembly hereby finds, determines, and declares that:

(1) The regulation of controlled substances in this Commonwealth is important and necessary for the preservation of public safety and public health; and
(2) Successful, community-based treatment can be used as an effective tool in the effort to reduce criminal risk factors. Therapeutic intervention and ongoing individualized treatment plans prepared through the use of meaningful and validated research-based assessment tools and professional evaluations offer a potential alternative to incarceration in appropriate circumstances and shall be used accordingly.

Included in New Section of KRS 532 (above)

It is the sentencing policy of the Commonwealth of Kentucky that:

(4) All supervision and treatment programs provided for defendants shall utilize evidence-based practices to reduce the likelihood of future criminal behavior

KRS 446.010 Definitions for statutes generally

(15) "Evidence-based practices" means policies, procedures, programs and practices proven by scientific research to reliably produce reductions in recidivism when implemented competently.
Throughout the bill, “evidence-based practices” is a point of emphasis. Pretrial release, probation and parole supervision, and all decisions throughout should be based upon evidence. Myths and personal opinions are not sufficient to support decisions made under any provision of the bill.

Contributed by Damon Preston

the  bill.