501 KAR 1:040.
Conducting parole revocation hearings.
RELATES TO: KRS
439.315, 439.330(1)(e), 439.341, 439.390, 439.430, 439.440
STATUTORY AUTHORITY:
KRS 439.340(3)
NECESSITY, FUNCTION,
AND CONFORMITY: KRS 439.340(3) requires the Parole Board to establish
administrative regulations concerning parole revocation hearings. This
administrative regulation contains the procedures for the revocation of parole
and the issuance of warrants.
Section 1.
Preliminary Revocation Hearings. Preliminary revocation hearings shall be
conducted by an administrative law judge of the Parole Board who shall have
control over the proceedings and the reception of evidence at these hearings.
(1) Charges of
parole violation shall be initiated by a parole officer of the Department of
Corrections by service of a notice of preliminary hearing which sets forth the
alleged violations. This notice may be amended at any time prior to the close
of the record of the preliminary hearing, within the discretion of the
administrative law judge, if a finding is made that the substantial rights of
the parolee shall not be prejudiced by the amendment. A continuance of the
proceeding may be granted in the event of this amendment, if the interest of
justice so requires. Failure to object to any defect in the notice prior to the
close of the hearing shall be deemed a waiver of this objection.
(2) Pursuant to SCR
3.700 Sub-rule 3, in the absence of an attorney to represent the Department of
Corrections, Division of Probation and Parole, before the board and the
administrative law judge, any duly appointed probation and parole officer of
the Commonwealth of Kentucky may appear before the board or its administrative
law judge as representative of the Department of Corrections in matters
relating to the revocation of probation or parole.
(3) Unless the
waiting period is waived by a parolee, a preliminary hearing shall not be
conducted earlier than five (5) days of service of notice of the hearing. The
preliminary hearing may be continued or recessed with further proof to be taken
at any time prior to the close of the record for good cause shown. At the
request of either party, the administrative law judge may, within his
discretion, leave the record open for reception of additional evidence provided
that no substantial rights are prejudiced.
(4) All preliminary
revocation hearings shall be conducted on the record. The hearing may be
recorded and preserved by any means practical, including electronically,
mechanically, or stenographically. If requested by the board, the record of the
proceedings shall be transcribed.
(5) The
administrative law judges may take judicial notice of acts of the Parole Board,
including the conditions of parole, and all other matters which may be
judicially noticed in the courts of this Commonwealth pursuant to KRE 201.
Witnesses appearing at the preliminary hearing to give testimony shall do so
under oath, administered by the administrative law judge, and shall be
available for examination by the other party or the administrative law judge,
unless good cause dictates otherwise. The parole officer shall bear the burden
of proof in establishing the elements of the violation. The parole officer
shall present evidence first and the parolee shall be given the opportunity to
present evidence in defense or mitigation. Any further proceedings shall be
conducted at the discretion of the administrative law judge. The parolee may,
within reasonable limits, present evidence solely for the purpose of mitigation
of his conduct, including evidence of his mental condition. If presented, this
evidence shall be subject to rebuttal by the parole officer.
(6)(a) At the close
of the hearing, or within a reasonable time thereafter, the administrative law
judge shall make a determination, from the evidence produced at the hearing, as
well as any evidence of which judicial notice is taken, whether there exists
probable cause to believe that the parolee has committed any or all of the
violations alleged in the notice of preliminary hearing.
(b) Except as
provided by paragraph (c) of this subsection, if probable cause is found to
exist, the case shall then be referred to the Parole Board which shall then
issue a parole violation warrant which shall cause the parolee to be brought
before the Parole Board for a final parole revocation hearing.
(c) Notwithstanding
a finding of probable cause, leniency may be granted in any form deemed
appropriate by the administrative law judge if all parties agree to the
leniency, and if the parolee agrees to any additional conditions of his parole
as set forth by the administrative law judge after consultation with the parole
officer.
(7) If the
administrative law judge finds probable cause to believe that a violation of
parole has been committed and the case is referred to the Parole Board for the
issuance of a parole violation warrant, the administrative law judge shall
issue a written decision and may issue a recommendation, along with reasons in
support of that recommendation, as to what action should be taken concerning
the parolee's parole, including recommendations concerning the terms and
conditions of any future parole. This recommendation shall be advisory only and
shall not be binding on the board. If the administrative law judge finds that
there exists substantial mitigating factors or a viable alternative to
reincarceration, the administrative law judge may recommend that the parolee
not be returned as a parole violator. If the administrative law judge makes
that finding and recommendation, the case shall be referred to the Parole Board
for their vote on the issuance of the parole violation warrant.
(8) In preliminary
revocation hearings conducted on probation cases or on cases in which the
releasing authority is other than the Kentucky Parole Board, upon a finding of
probable cause, the matter may be referred to the releasing authority for
further revocation consideration, or leniency may be considered on the same
basis as a case in which the Kentucky Parole Board is the releasing authority.
(9) If the alleged
violation of parole, as set forth in the notice of preliminary hearing, is new
criminal conduct which does not also constitute a technical violation of the
conditions of supervision, or the conditions of parole, the case shall not be
referred to the board for parole revocation consideration unless it is shown
that the parolee has received a conviction in a court of law or there exists
some other form of judicial admission, such as a plea of guilty, concerning the
alleged criminal conduct, or it is found that the criminal conduct, or a
substantial part of it, was committed in the presence of a duly appointed
probation and parole officer of the Commonwealth of Kentucky. Nothing in this
subsection shall prevent revocation of parole for a technical violation, which
also happens to partially or wholly involve criminal conduct.
(10) Any party
appearing before an administrative law judge of the Kentucky Parole Board may
be represented by counsel if he so desires. The party may have, upon motion
thereof, a continuance for the purpose of obtaining the presence of counsel;
except that chronic appearance for hearing without counsel by a parolee who is
capable of retaining counsel may be deemed an implicit waiver of counsel.
(11) The
administrative law judges, in the absence of any specific statutory
authorization, shall not consider matters of bail or any other form of release
from custody for those persons accused of parole or probation violations.
Section 2. Good
Cause Hearings. KRS 439.315 requires the imposition of a supervision fee on all
parolees and the establishment of a good cause hearing if the supervision fee
is not paid. This section describes the good cause hearing.
(1) Upon nonpayment
of any installment of the monthly supervision fee, the parole officer shall
serve a notice of preliminary hearing on the parolee and also shall serve the
supplemental notice of good cause hearing on the parolee.
(2) The good cause
hearing shall be scheduled as any other preliminary revocation hearing.
(3) If the parolee
makes the required supervision fee payment prior to the scheduled good cause
hearing, the hearing shall be cancelled.
(4) The parolee
shall be permitted legal representation at the good cause hearing.
(5) The burden of
proof to show good cause for nonpayment of the supervision fee shall be placed
upon the parolee.
(6) The
administrative law judge of the Kentucky Parole Board shall determine whether
good cause exists for the nonpayment of the supervision fee.
(7) If the
administrative law judge finds that good cause exists for the nonpayment of the
supervision fee, the charges shall be dismissed and the parolee shall be
returned to parole supervision with the previously imposed supervision fee.
(8) If the
administrative law judge finds that good cause does not exist, the parole
officer may request that the hearing be continued sine die with the condition
that the parolee pay the arrears and agrees to pay the supervision fee on a
monthly basis.
(9) If the
administrative law judge finds that good cause does not exist for nonpayment of
the supervision fee, absent any motion from the parole officer, the hearing
shall immediately continue and become a preliminary parole revocation hearing,
and shall be conducted as described in Section 1 of this administrative regulation.
Section 3. Parole
Violation Warrant. Parole violation warrants shall be issued as set forth
below:
(1) If a case is
referred to the Parole Board by the administrative law judge under the
provisions of Section 1(6) of this administrative regulation, the Parole Board
shall issue the parole violation warrant. A vote of the board shall not be
necessary.
(2) If a case is
referred to the full Parole Board by the administrative law judge with a
recommendation that the parolee not be returned to the institution as a parole
violator, pursuant to Section 1(7) of this administrative regulation, the board
may issue a parole violation warrant, if upon review a majority of the board
concurs that probable cause exists to believe a parole violation has taken place.
If the board votes to issue the warrant, the warrant shall be issued.
(3) If it appears
that a parolee has absconded from parole supervision, it otherwise appears that
a parolee is a fugitive from justice, or a parole violation warrant is
necessary to effect the return of the parolee to the state of Kentucky, the
Parole Board may issue a warrant, if it receives documentation from the
supervising parole officer, setting forth facts sufficient to conclude there
are reasonable grounds to believe that some violation has occurred, and the
commissioner or his designee submits to the board a recommendation that a
warrant be issued.
(4) If the parolee
is being supervised outside the state of Kentucky, a parole violation warrant
may be issued upon a vote of the Parole Board based upon a written report from
the supervising state setting forth facts sufficient to conclude that there are
reasonable grounds to believe that a violation of parole has occurred, and the
commissioner or his designee submits to the board a recommendation that a
warrant be issued.
(5) In all other
cases parole violation warrants may be issued only upon majority vote of the
board, except as set forth in subsection (7) of this section. If the board
votes to issue any warrant, the warrant shall be issued.
(6) The board may
decline any request for a parole violation warrant made pursuant to any section
of this administrative regulation except subsection (1) of this section. Any
parole violation warrant, issued under any section of this administrative
regulation, may be rescinded by majority vote of the board at any time.
(7) If a vote of the
board is required to issue a parole violation warrant, and if there is no
quorum of the board present to concur that probable cause exists and the warrant
should be issued, any member of the Parole Board may issue a parole violation
warrant if he, upon review concurs that probable cause exists to issue said
warrant. If a parole violation warrant is issued under these circumstances, the
board shall vote, as soon as is reasonable, on whether or not to concur in the
issuance of the warrant. If a majority of the board does not concur, the
warrant shall be voided by the board.
(8) Any member of
the Parole Board may sign warrants.
Section 4.
Preliminary Hearings Conducted Subsequent to the Issuance of the Parole
Violation or for Parolees Supervised in Another State. (1)(a) This subsection
shall not apply if a parolee is being supervised by another state and if that
supervisory state held a preliminary parole revocation hearing for the parolee.
(b) A preliminary revocation hearing
shall be conducted pursuant to Section 1 of this administrative regulation, if:
1. A parole violation warrant has been
issued for a parolee without a preliminary revocation hearing; and
2. The parolee is apprehended or returns
to the state of Kentucky.
(c) Except as provided by paragraph (e)
of this subsection, following the hearing, the parolee shall be ordered
returned to the appropriate institution of the Kentucky Department of Corrections
for further consideration by the Parole Board if the administrative law judge
finds that there is probable cause to believe that:
1. The parolee committed any of the
violations contained in the warrant; and
2. The warrant was validly issued as to
any of the charges contained within it.
(d) If the administrative law judge finds
no probable cause, the case shall be referred to the Parole Board which shall
withdraw the warrant and return the parolee to supervision.
(e)1. If probable cause is found, the
administrative law judge may refer the case back to the Parole Board to decide
whether the warrant should be exercised or withdrawn if:
a. The parole officer moves for a
referral; or
b. The administrative law judge finds
that there are overwhelming mitigation factors present that were not known to
the board at the time of the warrant's issuance.
2. If referred back to the Parole Board,
the administrative law judge may include a recommendation that the warrant be
rescinded. This recommendation shall be advisory only and shall not be binding
on the board.
3. If the Parole Board decides to
withdraw the warrant, the parolee shall be returned to normal parole
supervision, subject to any additional conditions the Parole Board may impose.
4. If the Parole Board decides to
exercise the warrant, the parolee shall be ordered returned to the appropriate
institution.
(2) If a preliminary
parole revocation hearing is held by the supervising state for a parolee being
supervised in another state, and the supervising state concludes as a result of
the hearing that a violation has occurred, the case shall first be reviewed by
an administrative law judge of the board who shall determine whether or not the
proceeding held in the supervising state, and the conclusions reached in the
hearing, complies with due process. After the review, the administrative law
judge shall refer the case to the Parole Board as set forth in Section 1(6) of
this administrative regulation.
Section 5. Waiver of
Preliminary Parole Revocation Hearings. (1) Any parolee charged with a
violation of his parole may waive appearance before an administrative law judge
of the Parole Board and by so doing waive his preliminary parole revocation
hearing. Parolees desiring to waive this hearing shall submit their waivers in
writing to the board or its administrative law judge for approval. These
waivers may be accepted within the discretion of the board or its
administrative law judges. No wavier shall be accepted unless it is found that
the waiver was entered into by the parolee knowingly, and voluntarily and that
the parolee is, and clearly understands that he is admitting guilt as to the
violations charged. Notwithstanding the submission and acceptance of a waiver
of the preliminary parole revocation hearing, the parolee may still submit
evidence in mitigation of his conduct. After approval of the waiver, the matter
shall proceed in the same manner as after a hearing before an administrative
law judge.
(2) If a parolee being
supervised in another state signs a waiver of preliminary hearing in that
state, this waiver shall be reviewed by an administrative law judge of the
board to determine if the waiver meets the requirements of subsection (1) of
this section. If the administrative law judge determines that the waiver does
not comply with subsection (1) of this section, the executive director shall
refer the matter back to the Division of Probation and Parole and request that
they take action necessary to insure compliance with this administrative regulation.
Section 6. Final
Parole Revocation Hearings. Final parole revocation hearings shall be held
within thirty (30) days after the return of the parolee to a state institution.
At this hearing, the parolee shall have the charges, specified in the warrant,
explained to him and he shall be given the opportunity to admit or deny them.
If the inmate admits to the charges, then the board shall receive proof in
mitigation of the charges. If the parolee wishes to present new or different
information than presented at the preliminary hearing, and shows that this
information could not have been presented at the preliminary hearing, he may
request a special hearing. The grant or denial of a special hearing shall be
totally within the discretion of the board. If granted by the board, a short
deferment shall be given so the special hearing can be scheduled in central
office and the parolee can secure legal counsel. The request for a special
hearing by a parolee shall occur at the beginning of the final parole revocation
hearing, before he admits or denies guilt. The parolee shall be notified of his
right to request a special hearing at his preliminary parole revocation
hearing. It is the responsibility of the parolee, and his alone, to request a
special hearing if he so desires one.
Section 7. Special
Hearings. (1) Special hearings shall be conducted in the central office of the
Parole Board, unless the Parole Board changes the site for security or other
factors it deems pertinent. In cases so heard, if the parole officer or the
parolee requests the issuance of subpoenas to compel the appearance of
witnesses or production of documents, the board shall issue them pursuant to
KRS 439.390, if no claims for expenses incurred by these witnesses shall be
submitted to the board, as it has no authorization to pay these expenses.
(2) At the special
hearing, the following order of proceedings shall be followed:
(a) The parolee,
parole officer, and all witnesses shall be sworn in by the Parole Board.
(b) The board shall
present a short statement of the charges against the parolee.
(c) The parole
officer shall present proof to substantiate the charges, subject to
cross-examination by the parolee.
(d) The parolee
shall present proof to rebut the parole officer's charges, subject to
cross-examination by the parole officer.
(e) The parole
officer may put on any rebuttal proof subject to cross-examination.
(f) The board may
question both the parolee and the parole officer and any witnesses.
(g) The board shall
then make a determination as to whether the parolee has violated his parole.
(h) If the parolee
is found in violation or if he admits the violation and has proof in
mitigation, the board shall receive proof from the parolee in mitigation of the
violation subject to cross-examination.
(i) At the
conclusion of the special hearing, the board shall make a determination as to
the disposition of the case and notify the parolee in person or in writing as
soon as practical.
Section 8. Waiver of
Final Parole Revocation Hearing. A parolee being held pursuant to a parole
violation warrant may, subsequent to his preliminary parole revocation hearing,
or acceptance of a waiver thereof, request that he be allowed to waive his
final parole revocation hearing. Parolees desiring to waive this hearings shall
submit their waivers in writing to the board. Acceptance of this waiver shall
be totally within the discretion of the board and shall be based only upon a
finding that the waiver is entered into knowingly and voluntarily and that the
parolee is admitting guilt as to the violations charged. Waiver of the right to
the final hearing shall also be considered as waiver of any rights to a special
hearing as provided for in Sections 6 and 7 of this administrative regulation.
In the event that waiver of the final hearing is accepted, the final decision
on the revocation of the parolee's parole shall be made by the board without
any further proceedings. (15 Ky.R. 1190; eff. 12-2-88; Am. 19 Ky.R. 2295; 20
Ky.R. 72; eff. 7-12-93; 21 Ky.R. 2169; 2674; eff. 5-4-95; 27 Ky.R. 3351; 28
Ky.R. 618; eff. 9-10-2001.)
