Session of 1999
HOUSE BILL No. 2283
By Committee on Judiciary
9 AN ACT concerning victims of crime; relating to notification of public
10 comment sessions; amending K.S.A. 74-7338 and K.S.A. 1998 Supp.
11 22-3717 and 74-7335 and repealing the existing sections.
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 1998 Supp. 22-3717 is hereby amended to read as
15 follows: 22-3717. (a) Except as otherwise provided by this section, K.S.A.
16 1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-
17 4638 and amendments thereto, an inmate, including an inmate sentenced
18 pursuant to K.S.A. 21-4618 and amendments thereto, shall be eligible for
19 parole after serving the entire minimum sentence imposed by the court,
20 less good time credits.
21 (b) (1) Except as provided by K.S.A. 21-4635 through 21-4638 and
22 amendments thereto, an inmate sentenced to imprisonment for the crime
23 of capital murder, or an inmate sentenced for the crime of murder in the
24 first degree based upon a finding of premeditated murder, committed on
25 or after July 1, 1994, shall be eligible for parole after serving 25 years of
26 confinement, without deduction of any good time credits.
27 (2) Except as provided by subsection (b)(1) or (b)(4), K.S.A. 1993
28 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-4638,
29 and amendments thereto, an inmate sentenced to imprisonment for an
30 off-grid offense committed on or after July 1, 1993, shall be eligible for
31 parole after serving 15 years of confinement, without deduction of any
32 good time credits.
33 (3) Except as provided by K.S.A. 1993 Supp. 21-4628 prior to its
34 repeal, an inmate sentenced for a class A felony committed before July
35 1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618 and
36 amendments thereto, shall be eligible for parole after serving 15 years of
37 confinement, without deduction of any good time credits.
38 (4) An inmate sentenced to imprisonment for a violation of subsec-
39 tion (a) of K.S.A. 21-3402 and amendments thereto committed on or after
40 July 1, 1996, shall be eligible for parole after serving 10 years of confine-
41 ment without deduction of any good time credits.
42 (c) Except as provided in subsection (e), if an inmate is sentenced to
43 imprisonment for more than one crime and the sentences run consecu-
44 tively, the inmate shall be eligible for parole after serving the total of:
45 (1) The aggregate minimum sentences, as determined pursuant to
46 K.S.A. 21-4608 and amendments thereto, less good time credits for those
47 crimes which are not class A felonies; and
48 (2) an additional 15 years, without deduction of good time credits,
49 for each crime which is a class A felony.
50 (d) (1) Persons sentenced for crimes, other than off-grid crimes,
51 committed on or after July 1, 1993, will not be eligible for parole, but will
52 be released to a mandatory period of postrelease supervision upon com-
53 pletion of the prison portion of their sentence as follows:
54 (A) Except as provided in subparagraphs (C) and (D), persons sen-
55 tenced for nondrug severity level 1 through 6 crimes and drug severity
56 levels 1 through 3 crimes must serve 36 months, plus the amount of good
57 time earned and retained pursuant to K.S.A. 21-4722 and amendments
58 thereto, on postrelease supervision.
59 (B) Except as provided in subparagraphs (C) and (D), persons sen-
60 tenced for nondrug severity level 7 through 10 crimes and drug severity
61 level 4 crimes must serve 24 months, plus the amount of good time earned
62 and retained pursuant to K.S.A. 21-4722 and amendments thereto, on
63 postrelease supervision.
64 (C) (i) The sentencing judge shall impose the postrelease supervision
65 period provided in subparagraph (d)(1)(A) or (d)(1)(B), unless the judge
66 finds substantial and compelling reasons to impose a departure based
67 upon a finding that the current crime of conviction was sexually violent
68 or sexually motivated. In that event, departure may be imposed to extend
69 the postrelease supervision to a period of up to 60 months.
70 (ii) If the sentencing judge departs from the presumptive postrelease
71 supervision period, the judge shall state on the record at the time of
72 sentencing the substantial and compelling reasons for the departure. De-
73 partures in this section are subject to appeal pursuant to K.S.A. 21-4721
74 and amendments thereto.
75 (iii) In determining whether substantial and compelling reasons exist,
76 the court shall consider:
77 (a) Written briefs or oral arguments submitted by either the defend-
78 ant or the state;
79 (b) any evidence received during the proceeding;
80 (c) the presentence report, the victim's impact statement and any
81 psychological evaluation as ordered by the court pursuant to subsection
82 (e) of K.S.A. 21-4714 and amendments thereto; and
83 (d) any other evidence the court finds trustworthy and reliable.
84 (iv) The sentencing judge may order that a psychological evaluation
85 be prepared and the recommended programming be completed by the
86 offender. The department of corrections or the parole board shall ensure
87 that court ordered sex offender treatment be carried out.
88 (v) In carrying out the provisions of subparagraph (d)(1)(C), the court
89 shall refer to K.S.A. 21-4718 and amendments thereto.
90 (vi) Upon petition, the parole board may provide for early discharge
91 from the postrelease supervision period upon completion of court or-
92 dered programs and completion of the presumptive postrelease super-
93 vision period, as determined by the crime of conviction, pursuant to sub-
94 paragraph (d)(1)(A) or (B). Early discharge from postrelease supervision
95 is at the discretion of the parole board.
96 (vii) Persons convicted of crimes deemed sexually violent or sexually
97 motivated, shall be registered according to the habitual sex offender reg-
98 istration act, K.S.A. 22-4901 through 22-4910 and amendments thereto.
99 (D) The period of postrelease supervision provided in subparagraphs
100 (A) and (B) may be reduced by up to 12 months based on the offender's
101 compliance with conditions of supervision and overall performance while
102 on postrelease supervision. The reduction in the supervision period shall
103 be on an earned basis pursuant to rules and regulations adopted by the
104 secretary of corrections.
105 (E) In cases where sentences for crimes from more than one severity
106 level have been imposed, the offender shall serve the longest period of
107 postrelease supervision as provided by this section available for any crime
108 upon which sentence was imposed irrespective of the severity level of the
109 crime. Supervision periods will not aggregate.
110 (2) As used in this section, "sexually violent crime" means:
111 (A) Rape, K.S.A. 21-3502, and amendments thereto;
112 (B) indecent liberties with a child, K.S.A. 21-3503, and amendments
114 (C) aggravated indecent liberties with a child, K.S.A. 21-3504, and
115 amendments thereto;
116 (D) criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505
117 and amendments thereto;
118 (E) aggravated criminal sodomy, K.S.A. 21-3506, and amendments
120 (F) indecent solicitation of a child, K.S.A. 21-3510, and amendments
122 (G) aggravated indecent solicitation of a child, K.S.A. 21-3511, and
123 amendments thereto;
124 (H) sexual exploitation of a child, K.S.A. 21-3516, and amendments
126 (I) aggravated sexual battery, K.S.A. 21-3518, and amendments
128 (J) any conviction for a felony offense in effect at any time prior to
129 the effective date of this act, that is comparable to a sexually violent crime
130 as defined in subparagraphs (A) through (I), or any federal or other state
131 conviction for a felony offense that under the laws of this state would be
132 a sexually violent crime as defined in this section;
133 (K) an attempt, conspiracy or criminal solicitation, as defined in
134 K.S.A. 21-3301, 21-3302, 21-3303, and amendments thereto, of a sexually
135 violent crime as defined in this section; or
136 (L) any act which at the time of sentencing for the offense has been
137 determined beyond a reasonable doubt to have been sexually motivated.
138 As used in this subparagraph, "sexually motivated" means that one of the
139 purposes for which the defendant committed the crime was for the pur-
140 pose of the defendant's sexual gratification.
141 (e) If an inmate is sentenced to imprisonment for a crime committed
142 while on parole or conditional release, the inmate shall be eligible for
143 parole as provided by subsection (c), except that the Kansas parole board
144 may postpone the inmate's parole eligibility date by assessing a penalty
145 not exceeding the period of time which could have been assessed if the
146 inmate's parole or conditional release had been violated for reasons other
147 than conviction of a crime.
148 (f) If a person is sentenced to prison for a crime committed on or
149 after July 1, 1993, while on probation, parole, conditional release or in a
150 community corrections program, for a crime committed prior to July 1,
151 1993, and the person is not eligible for retroactive application of the
152 sentencing guidelines and amendments thereto pursuant to K.S.A. 21-
153 4724 and amendments thereto, the new sentence shall not be aggregated
154 with the old sentence, but shall begin when the person is paroled or
155 reaches the conditional release date on the old sentence. If the offender
156 was past the offender's conditional release date at the time the new of-
157 fense was committed, the new sentence shall not be aggregated with the
158 old sentence but shall begin when the person is ordered released by the
159 Kansas parole board or reaches the maximum sentence expiration date
160 on the old sentence, whichever is earlier. The new sentence shall then
161 be served as otherwise provided by law. The period of postrelease su-
162 pervision shall be based on the new sentence, except that those offenders
163 whose old sentence is a term of imprisonment for life, imposed pursuant
164 to K.S.A. 1993 Supp. 21-4628 prior to its repeal, or an indeterminate
165 sentence with a maximum term of life imprisonment, for which there is
166 no conditional release or maximum sentence expiration date, shall remain
167 on postrelease supervision for life or until discharged from supervision
168 by the Kansas parole board.
169 (g) Subject to the provisions of this section, the Kansas parole board
170 may release on parole those persons confined in institutions who are el-
171 igible for parole when: (1) The board believes that the inmate should be
172 released for hospitalization, for deportation or to answer the warrant or
173 other process of a court and is of the opinion that there is reasonable
174 probability that the inmate can be released without detriment to the com-
175 munity or to the inmate; or (2) the secretary of corrections has reported
176 to the board in writing that the inmate has satisfactorily completed the
177 programs required by any agreement entered under K.S.A. 75-5210a and
178 amendments thereto, or any revision of such agreement, and the board
179 believes that the inmate is able and willing to fulfill the obligations of a
180 law abiding citizen and is of the opinion that there is reasonable proba-
181 bility that the inmate can be released without detriment to the community
182 or to the inmate. Parole shall not be granted as an award of clemency and
183 shall not be considered a reduction of sentence or a pardon.
184 (h) The Kansas parole board shall hold a parole hearing at least the
185 month prior to the month an inmate will be eligible for parole under
186 subsections (a), (b) and (c). At least the month preceding the parole hear-
187 ing, the county or district attorney of the county where the inmate was
188 convicted shall give written notice of the time and place of the public
189 comment sessions for the inmate to any victim of the inmate's crime who
190 is alive and whose address is known to the county or district attorney or,
191 if the victim is deceased, to the victim's family if the family's address is
192 known to the county or district attorney, except that for inmates convicted
193 of felonies other than class A or off-grid felonies, if the county or district
194 attorney has provided the address of the victim or the victim's family to
195 the secretary of corrections, notification of public comment sessions shall
196 be made by the secretary of corrections. The victim or the victim's family
197 of class A and off-grid felonies shall be notified of public comment sessions
198 by both the county or district attorney and the secretary of corrections.
199 Except as otherwise provided, failure to notify pursuant to this section
200 shall not be a reason to postpone a parole hearing. In the case of any
201 inmate convicted of a class A or off-grid felony the secretary of corrections
202 and county or district attorney shall give written notice of the time and
203 place of the public comment session for such inmate at least one month
204 preceding the public comment session to any victim of such inmate's
205 crime or the victim's family pursuant to K.S.A. 74-7338 and amendments
206 thereto. If notification is not given by the secretary of corrections to such
207 victim or such victim's family in the case of any inmate convicted of a
208 class A or off-grid felony, the board shall postpone a decision on parole
209 of the inmate to a time at least 30 days after notification is given by the
210 secretary of corrections as provided in this section. Nothing in this section
211 shall create a cause of action against the state or an employee of the state
212 acting within the scope of the employee's employment as a result of the
213 failure to notify pursuant to this section. If granted parole, the inmate
214 may be released on parole on the date specified by the board, but not
215 earlier than the date the inmate is eligible for parole under subsections
216 (a), (b) and (c). At each parole hearing and, if parole is not granted, at
217 such intervals thereafter as it determines appropriate, the Kansas parole
218 board shall consider: (1) Whether the inmate has satisfactorily completed
219 the programs required by any agreement entered under K.S.A. 75-5210a
220 and amendments thereto, or any revision of such agreement; and (2) all
221 pertinent information regarding such inmate, including, but not limited
222 to, the circumstances of the offense of the inmate; the presentence report;
223 the previous social history and criminal record of the inmate; the conduct,
224 employment, and attitude of the inmate in prison; the reports of such
225 physical and mental examinations as have been made; comments of the
226 victim and the victim's family; comments of the public; official comments;
227 and capacity of state correctional institutions.
228 (i) In those cases involving inmates sentenced for a crime committed
229 after July 1, 1993, the parole board will review the inmates proposed
230 release plan. The board may schedule a hearing if they desire. The board
231 may impose any condition they deem necessary to insure public safety,
232 aid in the reintegration of the inmate into the community, or items not
233 completed under the agreement entered into under K.S.A. 75-5210a and
234 amendments thereto. The board may not advance or delay an inmate's
235 release date. Every inmate while on postrelease supervision shall remain
236 in the legal custody of the secretary of corrections and is subject to the
237 orders of the secretary.
238 (j) Before ordering the parole of any inmate, the Kansas parole board
239 shall have the inmate appear before either in person or via a video con-
240 ferencing format and shall interview the inmate unless impractical be-
241 cause of the inmate's physical or mental condition or absence from the
242 institution. Every inmate while on parole shall remain in the legal custody
243 of the secretary of corrections and is subject to the orders of the secretary.
244 Whenever the Kansas parole board formally considers placing an inmate
245 on parole and no agreement has been entered into with the inmate under
246 K.S.A. 75-5210a and amendments thereto, the board shall notify the in-
247 mate in writing of the reasons for not granting parole. If an agreement
248 has been entered under K.S.A. 75-5210a and amendments thereto and
249 the inmate has not satisfactorily completed the programs specified in the
250 agreement, or any revision of such agreement, the board shall notify the
251 inmate in writing of the specific programs the inmate must satisfactorily
252 complete before parole will be granted. If parole is not granted only
253 because of a failure to satisfactorily complete such programs, the board
254 shall grant parole upon the secretary's certification that the inmate has
255 successfully completed such programs. If an agreement has been entered
256 under K.S.A. 75-5210a and amendments thereto and the secretary of
257 corrections has reported to the board in writing that the inmate has sat-
258 isfactorily completed the programs required by such agreement, or any
259 revision thereof, the board shall not require further program participa-
260 tion. However, if the board determines that other pertinent information
261 regarding the inmate warrants the inmate's not being released on parole,
262 the board shall state in writing the reasons for not granting the parole. If
263 parole is denied for an inmate sentenced for a crime other than a class A
264 or class B felony or an off-grid felony, the board shall hold another parole
265 hearing for the inmate not later than one year after the denial unless the
266 parole board finds that it is not reasonable to expect that parole would
267 be granted at a hearing if held in the next three years or during the interim
268 period of a deferral. In such case, the parole board may defer subsequent
269 parole hearings for up to three years but any such deferral by the board
270 shall require the board to state the basis for its findings. If parole is denied
271 for an inmate sentenced for a class A or class B felony or an off-grid
272 felony, the board shall hold another parole hearing for the inmate not
273 later than three years after the denial unless the parole board finds that
274 it is not reasonable to expect that parole would be granted at a hearing if
275 held in the next 10 years or during the interim period of a deferral. In
276 such case, the parole board may defer subsequent parole hearings for up
277 to 10 years but any such deferral shall require the board to state the basis
278 for its findings.
279 (k) Parolees and persons on postrelease supervision shall be assigned,
280 upon release, to the appropriate level of supervision pursuant to the cri-
281 teria established by the secretary of corrections.
282 (l) The Kansas parole board shall adopt rules and regulations in ac-
283 cordance with K.S.A. 77-415 et seq., and amendments thereto, not in-
284 consistent with the law and as it may deem proper or necessary, with
285 respect to the conduct of parole hearings, postrelease supervision reviews,
286 revocation hearings, orders of restitution, reimbursement of expenditures
287 by the state board of indigents' defense services and other conditions to
288 be imposed upon parolees or releasees. Whenever an order for parole or
289 postrelease supervision is issued it shall recite the conditions thereof.
290 (m) Whenever the Kansas parole board orders the parole of an in-
291 mate or establishes conditions for an inmate placed on postrelease su-
292 pervision, the board:
293 (1) Unless it finds compelling circumstances which would render a
294 plan of payment unworkable, shall order as a condition of parole or post-
295 release supervision that the parolee or the person on postrelease super-
296 vision pay any transportation expenses resulting from returning the pa-
297 rolee or the person on postrelease supervision to this state to answer
298 criminal charges or a warrant for a violation of a condition of probation,
299 assignment to a community correctional services program, parole, con-
300 ditional release or postrelease supervision;
301 (2) to the extent practicable, shall order as a condition of parole or
302 postrelease supervision that the parolee or the person on postrelease su-
303 pervision make progress towards or successfully complete the equivalent
304 of a secondary education if the inmate has not previously completed such
305 educational equivalent and is capable of doing so;
306 (3) may order that the parolee or person on postrelease supervision
307 perform community or public service work for local governmental agen-
308 cies, private corporations organized not-for-profit or charitable or social
309 service organizations performing services for the community;
310 (4) may order the parolee or person on postrelease supervision to pay
311 the administrative fee imposed pursuant to K.S.A. 1998 Supp. 22-4529
312 unless the board finds compelling circumstances which would render pay-
313 ment unworkable; and
314 (5) unless it finds compelling circumstances which would render a
315 plan of payment unworkable, shall order that the parolee or person on
316 postrelease supervision reimburse the state for all or part of the expend-
317 itures by the state board of indigents' defense services to provide counsel
318 and other defense services to the person. In determining the amount and
319 method of payment of such sum, the parole board shall take account of
320 the financial resources of the person and the nature of the burden that
321 the payment of such sum will impose. Such amount shall not exceed the
322 amount claimed by appointed counsel on the payment voucher for indi-
323 gents' defense services or the amount prescribed by the board of indi-
324 gents' defense services reimbursement tables as provided in K.S.A. 22-
325 4522 and amendments thereto, whichever is less, minus any previous
326 payments for such services.
327 (n) If the court which sentenced an inmate specified at the time of
328 sentencing the amount and the recipient of any restitution ordered as a
329 condition of parole or postrelease supervision, the Kansas parole board
330 shall order as a condition of parole or postrelease supervision that the
331 inmate pay restitution in the amount and manner provided in the journal
332 entry unless the board finds compelling circumstances which would ren-
333 der a plan of restitution unworkable.
334 (o) Whenever the Kansas parole board grants the parole of an inmate,
335 the board, within 10 days of the date of the decision to grant parole, shall
336 give written notice of the decision to the county or district attorney of the
337 county where the inmate was sentenced.
338 (p) When an inmate is to be released on postrelease supervision, the
339 secretary, within 30 days prior to release, shall provide the county or
340 district attorney of the county where the inmate was sentenced written
341 notice of the release date.
342 (q) Inmates shall be released on postrelease supervision upon the
343 termination of the prison portion of their sentence. Time served while
344 on postrelease supervision will vest.
345 (r) An inmate who is allocated regular good time credits as provided
346 in K.S.A. 22-3725 and amendments thereto may receive meritorious good
347 time credits in increments of not more than 90 days per meritorious act.
348 These credits may be awarded by the secretary of corrections when an
349 inmate has acted in a heroic or outstanding manner in coming to the
350 assistance of another person in a life threatening situation, preventing
351 injury or death to a person, preventing the destruction of property or
352 taking actions which result in a financial savings to the state.
353 Sec. 2. K.S.A. 1998 Supp. 74-7335 is hereby amended to read as
354 follows: 74-7335. (a) The victim of a crime or the victim's family shall be
355 notified of the right to be present at any public hearing or any juvenile
356 offender proceeding concerning the accused or the convicted person or
357 the respondent or the juvenile offender.
358 (b) The victim of a crime or the victim's family shall be notified of
359 the right to be present at any proceeding or hearing where probation or
360 parole is considered or granted by a judge whether or not a public hearing
361 is conducted or required.
362 (c) As used in this section: (1) "Public hearing" means any court pro-
363 ceeding or administrative hearing which is open to the public and shall
364 include but not be limited to the:
365 (A) Preliminary hearing;
366 (B) trial;
367 (C) sentencing;
368 (D) sentencing modification;
369 (E) public comment sessions, pursuant to K.S.A. 22-3717, and
370 amendments thereto;
371 (F) expungement hearing; and
372 (G) granting of probation or parole by a judge.
373 (2) "Victim's family" means a spouse, surviving spouse, children, par-
374 ents, legal guardian, siblings, stepparent or grandparents.
375 (3) "Juvenile offender proceedings" means any hearing concerning a
376 juvenile pursuant to the Kansas juvenile justice code.
377 (d) The city, county or district attorney or municipal court clerk shall
378 notify any victim of the crime who is alive and whose address is known
379 to the city, county or district attorney or municipal court clerk or, if the
380 victim is deceased, to the victim's family if the family's address is known
381 to such attorney or clerk, except that for felonies other than class A and
382 off-grid felonies, if a county or district attorney has provided to the sec-
383 retary of corrections the address of the victim or, if the victim is deceased,
384 the address of the victim's family, the county or district attorney need not
385 provide notification of public comment sessions held pursuant to K.S.A.
386 22-3717 and amendments thereto.
387 (e) Costs of transportation for the victim to appear shall be borne by
388 the victim unless the appearance is required pursuant to a subpoena or
389 other order of the court.
390 Sec. 3. K.S.A. 74-7338 is hereby amended to read as follows: 74-
391 7338. (a) Notwithstanding the provisions of K.S.A. 74-7335 and amend-
392 ments thereto, in the case of any inmate convicted of a class A or off-grid
393 felony, the secretary of corrections shall give written notice of the time
394 and place of the public comment session pursuant to K.S.A. 22-3717 and
395 amendments thereto for such inmate, at least one month preceding the
396 public comment session, to any victim or the victim's family pursuant to
397 subsection (b).
398 (b) Any victim, or a member of the victim's family of a crime, if such
399 victim requests notice of the public comment session, shall give the sec-
400 retary of corrections such victim's name and current address or the name
401 and current address of the victim's family. It shall be the duty of the
402 victim or the victim's family to provide the secretary with any change in
403 name or address or change in the person to be notified pursuant to this
405 (c) The secretary of corrections shall keep a record of all victims and
406 their current addresses or such victims' family and their current ad-
407 dresses, who give the secretary such victim or victims' family name pur-
408 suant to subsection (b), and shall update such record as notified by the
409 victims or the victims' family. Such record shall be kept confidential and
410 separate from all other records and shall not be available to the inmate
411 or any other party other than the victim or the victim's family.
412 Sec. 4. K.S.A. 74-7338 and K.S.A. 1998 Supp. 22-3717 and 74-7335
413 are hereby repealed.
414 Sec. 5. This act shall take effect and be in force from and after its
415 publication in the statute book.