DPA has recently submitted two documents to the 2011 Penal Code Task Force. To start their work this year, the Task Force solicited criminal law reform ideas through a survey. To further assist the Task Force, Public Advocate Ed Monahan created a document outlining the development and impact of the PFO and Violent Offender laws.
Cost-Efficient Adjustments of Kentucky’s Persistent Felony Offender and Violent Offender Laws submitted to 2011 Penal Code Task Force by DPA
Survey of DPA Attorneys Regarding Needed Penal Code Reform
Proposed Adjustments to Kentucky’s PFO Law (KRS 532.080)
A. Eliminate PFO enhancements for non-violent felonies.
B. Eliminate first and second degrees, leaving PFO status to apply only to those with two or more prior felonies without any substantial break in criminal activity.
C. Repeal 10-year parole eligibility requirement for PFO first degree.
D. Require actual imprisonment on prior felonies.
E. Prohibit all double enhancements by eliminating PFO for all offenses already enhanced by a prior conviction.
Proposed Adjustments to Kentucky Violent Offender Law (KRS 439.3401)A. Reinstate 50% parole eligibility for violent offenders, as originally passed in 1986 and maintained until 1998 when Congress conditioned federal funds on passage of 85% parole eligibility. (No federal funds would now be lost by reverting to the prior law.)
B. Limit the category of violent offenders to those convicted of:
i. Murder
ii. First-Degree Rape
iii. First-Degree Sodomy
iv. First-Degree Robbery with a Firearm
v. First-Degree Burglary with a Firearm
vi. First-Degree Assault
A. Limit 85% parole eligibility to intentional conduct resulting in death, serious physical injury, or substantial sexual contact. Wanton murders, assaults and other non-intentional crimes resulting in death or serious injury and other violent intentional crimes not resulting in death, serious injury, or substantial sexual contact (i.e. first-degree robbery) could be reverted 50% parole eligibility rather than 85%.
B. Limit each category of crime in KRS 439.3401 to convictions “involving the death of the victim or serious physical injury to a victim.”
C. Limit violent offenses to any class A or B felony or capital offense involving the use or threatened use of physical force upon another person.
D. Graduate the parole eligibility according to the Classification of the violent offense, e.g., 75% for violent Class A convictions, 50% for violent Class B convictions, etc.
E. Provide that violent offenders who reach a certain age, such as 65 or 70 years, except for those sentenced to life without parole or life without parole for 25 years, be parole eligible.
F. Repeal the 2006 substantial expansion of the violent offender statute, which added the following crimes to the definition:
1. Commission or attempted commission of a felony sexual offense in KRS Chapter 510;
2. Use of a minor in a sexual performance as described in KRS 531.310;
3. Promoting a sexual performance by a minor as described in KRS 531.320;
4. Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a);
5. Promoting prostitution in the first degree as described in KRS 529.030(1)(b);
6. Criminal abuse in the first degree as described in KRS 508.100;
7. 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;
8. Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040; or
9. Robbery in the first degree
G. Expand the KRS 439.3402 exemption to include additional significant mitigating conditions such as mental illness, mental retardation, the age of the defendant, a victim of sexual abuse, and those in KRS 532.025:
1. The defendant has no significant history of prior criminal activity;
2. The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance even though the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense to the crime;
3. The victim was a participant in the defendant's criminal conduct or consented to the criminal act;
4. The offense was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct even though the circumstances which the defendant believed to provide a moral justification or extenuation for his conduct are not sufficient to constitute a defense to the crime;
5. The defendant was an accomplice in an offense committed by another person and his participation in the offense was relatively minor;
6. The defendant acted under duress or under the domination of another person even though the duress or the domination of another person is not sufficient to constitute a defense to the crime;
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sp; 7. At the time of the offense, the capacity of the defendant to appreciate the criminality of his conduct to the requirements of law was impaired as a result of mental illness or retardation or intoxication even though the impairment of the capacity of the defendant to appreciate the criminality of his conduct or to conform the conduct to the requirements of law is insufficient to constitute a defense to the crime; and
8. The youth of the defendant at the time of the crime.
