Substitute for SENATE BILL No. 339*
An  Act concerning crimes, criminal procedure and punishment; relating to persons in the
custody of the secretary of corrections; early release of the functionally incapacitated.

Be it enacted by the Legislature of the State of Kansas:

      Section  1. (a)  (1) Upon application of the secretary of corrections,
the Kansas parole board may grant release to any person deemed to be
functionally incapacitated, upon such terms and conditions as prescribed
in the order granting such release.

      (2) The Kansas parole board shall adopt rules and regulations gov-
erning the procedure for initiating, processing, reviewing and establishing
criteria for review of applications filed on behalf of persons deemed to
be functionally incapacitated. Such rules and regulations shall include
criteria and guidelines for determining whether the functional incapaci-
tation precludes the person from posing a threat to the public.

      (3) Subject to the provisions of subsections (a)(4) and (a)(5), a func-
tional incapacitation release shall not be granted until at least 30 days
after written notice of the application has been given to: (A) The prose-
cuting attorney and the judge of the court in which the person was con-
victed; and (B) any victim of the person's crime or the victim's family.
Notice of such application shall be given by the secretary of corrections
to the victim who is alive and whose address is known to the secretary,
or if the victim is deceased, to the victim's family if the family's address
is known to the secretary. Subject to the provisions of subsection (a)(4),
if there is no known address for the victim, if alive, or the victim's family,
if deceased, the board shall not grant or deny such application until at
least 30 days after notification is given by publication in the county of
conviction. Publication costs shall be paid by the department of correc-

      (4) All applications for functional incapacitation release shall be re-
ferred to the board. The board shall examine each case and may approve
such application and grant a release. An application for release shall not
be approved unless the board determines that the person is functionally
incapacitated and does not represent a future risk to public safety. The
board shall determine whether a hearing is necessary on the application.
The board may request additional information or evidence it deems nec-
essary from a medical or mental health practitioner.

      (5) The board shall establish any conditions related to the release of
the person. The release shall be conditional, and be subject to revocation
pursuant to K.S.A. 75-5217, and amendments thereto, if the person's
functional incapacity significantly diminishes, if the person fails to comply
with any condition of release, or if the board otherwise concludes that
the person presents a threat or risk to public safety. The person shall
remain on release supervision until the release is revoked, expiration of
the maximum sentence, or discharged by the board. Subject to the pro-
visions of subsection (f) of K.S.A. 75-5217, and amendments thereto, the
person shall receive credit for the time during which the person is on
functional incapacitation release supervision towards service of the prison
and postrelease supervision obligations of determinate sentences or in-
determinate and off-grid sentences.

      (6) The secretary of corrections shall cause the person to be super-
vised upon release, and shall have the authority to initiate revocation of
the person at any time for the reasons indicated in subsection (a)(5).

      (7) The decision of the board on the application or any revocation
shall be final and not subject to review by any administrative agency or

      (8) In determining whether a person is functionally incapacitated, the
board shall consider the following: (A) The person's current condition as
confirmed by medical or mental health care providers, including whether
the condition is terminal;

      (B) the person's age and personal history;

      (C) the person's criminal history;

      (D) the person's length of sentence and time the person has served;

      (E) the nature and circumstances of the current offense;

      (F) the risk or threat to the community if released;

      (G) whether an appropriate release plan has been established; and

      (H) any other factors deemed relevant by the board.

      (b) Nothing in this section shall be construed to limit or preclude
submission of an application for pardon or commutation of sentence pur-
suant to K.S.A. 22-3701, and amendments thereto.

      Sec.  2. This act shall take effect and be in force from and after its
publication in the statute book.

Approved April 9, 2002.