Kan. Admin. Regs. Agency 45 — Kansas Prisoner Review Board

Article 200 Parole Hearing Proceedings

Kan. Admin. Regs. § 45-200-1 Attendance at hearings

(a) Except as provided in subsection (b), attendance at any parole hearing held at a correctional institution shall be limited to the following:

(1) Any individual who is on the board's staff;

(2) the inmate;

(3) the person responsible for coordination of the parole plan for that inmate;

(4) a representative of the inmate's unit team or another designated institution staff member;

(5) any additional employee of the department of corrections who wishes to attend the hearing and who receives prior approval from the board; and

(6) if the parole applicant does not offer an objection, a limited number of persons who have a professional interest in parole procedures and who have received prior approval from the board.

(b) Any individual who is authorized to attend a parole hearing under subsection (a) may be denied access to the meeting if the board determines that attendance by that individual is not in the interest of the state.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Kan. Admin. Regs. § 45-200-2 Single board member hearings; review and appeals

(a) If a single board member conducts a parole hearing, the findings of that member shall be reviewed and approved in accordance with K.S.A. 22-3709, and amendments thereto, before the findings and decision become final. If there is a disagreement between the member who conducted the hearing and the member who reviewed the findings, the decision shall be submitted for review by another board member. The presence of the inmate shall not be required at either of these reviews.

(b) A request to reconsider a board decision shall be granted only on the basis that the inmate has new information that was unavailable at the prior hearing. Each request for reconsideration shall be made to the board in writing and shall detail the new evidence that was unavailable at the prior hearing. The presence of the inmate shall not be required when the matter is reconsidered.

(c) An inmate who is appealing a sentence or conviction shall not be adversely affected in the parole process or deliberations. However, the parole hearing may be continued by the board for a reasonable time for the purpose of clarifying the status of the appeal to make certain that the board is considering the applicant's parole suitability with respect to the proper sentence.

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History

• History: (Authorized by K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; implementing K.S.A. 2001 Supp. 22-3709 and 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Article 300 Dockets

Kan. Admin. Regs. § 45-300-1 Docketing regular parole hearings

(a) Each case shall be docketed by the board for a regular parole hearing when all of the following prerequisites have been met:

(1) The inmate has achieved parole eligibility status under the requirements of K.S.A. 21-4608 and K.S.A. 22-3717, and amendments thereto, and department of corrections regulations.

(2) The preparole investigation has been completed.

(3) During the month preceding the proposed docketing of the parole hearing, a public comment session has been conducted by the board.

(b) If an offender has achieved parole eligibility status but has not been placed on the docket for a public comment session, the parole hearing may be conducted by the board if the decision is deferred until the public comment session has been held.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Kan. Admin. Regs. § 45-300-2 Absence of inmate at docketed hearing

If an inmate is unable to appear for a scheduled hearing due to a physical or mental condition, absence from the facility, in absentia status, or other reasons, the inmate's hearing shall be rescheduled for the next regularly scheduled hearing date at that facility after the inmate becomes available, unless otherwise ordered by the board.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Article 400 Release to Supervision

Kan. Admin. Regs. § 45-400-1 General provisions

(a) Following each parole hearing, the parole board's findings and recommendations shall be prepared in writing. These findings and recommendations shall be used to prepare a final action notice. Appropriate department of corrections personnel shall be provided with copies of the final action notice. The final action notice shall not be divulged to any other party until notice of the board's action has been sent to the inmate.

(b) The release condition or conditions established by the board, if any, shall not be modified or waived except by order of the board.

(c) If the board needs additional information after the parole hearing concerning the inmate or the inmate's parole plan, the decision on the inmate's parole hearing may be delayed for a reasonable length of time so the necessary information can be obtained.

(d) Each inmate who is on postrelease supervision or parole shall remain in the legal custody of the secretary of corrections and subject to orders of the secretary.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Kan. Admin. Regs. § 45-400-2 Parole plan

Each inmate who has been granted parole subject to an approved parole plan shall remain in confinement until the board or its designee approves a satisfactory parole plan.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Kan. Admin. Regs. § 45-400-3 Release

(a) Release dates.

(1) Any inmate who has been granted parole and has been assigned to a specific parole office may receive a release date when placement arrangements are completed and approved.

(2) A specific release date may be designated by the board in order to comply with statutory parole eligibility or for any other special cause as determined on a case-by-case basis. Requests for advance release may be considered by the board for valid reasons, subject to investigation and confirmation by proper authorities.

(3) If an inmate's release date falls on a Saturday or Sunday, or on a holiday observed by the department of corrections, the inmate may be released on the last workday before the computed release date.

(b) Interstate compact release. Each inmate who has been granted parole for out-of-state supervision under an interstate compact agreement shall remain in confinement until the receiving state has entered its report with the compact administrator of the secretary, who shall refer it to the board for final determination and authorization of release. If the interstate compact agreement is disapproved, the decision to parole the inmate under the compact agreement shall be deemed void. A notice shall then be issued by the board advising the inmate that the interstate compact agreement has been disapproved and the inmate's parole suitability will be reconsidered at a scheduled parole hearing.

(c) Changes in parole plan. Each inmate who is on continued status and who elects to change the parole plan shall present this information to the unit team, which shall forward it to the board for its approval and advice.

(d) Release to detainer.

(1) Each inmate who has been granted parole to a detainer only shall remain in confinement until sufficient arrangements have been made to determine when the detaining authority will assume custody.

(2) Unless otherwise ordered by the board, a decision to parole an inmate to a detainer only shall be deemed void if the detainer is thereafter cancelled. A notice to the inmate shall be issued by the board stating that the detainer has been cancelled and the inmate's parole suitability will be reconsidered at a scheduled parole hearing.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Kan. Admin. Regs. § 45-400-4 Deferred release

(a) The release of any inmate who has been granted parole may be deferred or the parole may be rescinded on the basis of any one or more of the following factors:

(1) Department of corrections staff finds that there is probable cause to believe that the inmate committed a facility infraction before being released.

(2) The parole plan does not provide for sufficient supervision or does not adequately provide for public safety or for the successful integration of the inmate.

(3) Information that was not available at the hearing indicates that the inmate cannot reasonably lead a law-abiding life.

(b) If the board so orders, the inmate shall not be released until the facility's fact-finding or disciplinary process is completed and the board is provided copies of the findings and recommendations. The report may contain a recommendation to the board concerning the inmate's parole status.

(c) If probable cause is found to believe that an inmate committed a facility infraction before being released, the board's decision to reconsider the inmate's parole suitability may also take into account the following factors:

(1) The date of the alleged infraction;

(2) the nature of the alleged violation charged and its penalty classification; and

(3) the facility's report containing recommendations concerning the inmate's parole status.

(d) If the board is considering whether or not to rescind a decision to grant an inmate's parole, defer the inmate's established release date, or both, the inmate shall be provided with the following by the board:

(1) A special hearing before the board or one or more of its members;

(2) written notice, at least 24 hours before the hearing, of the purpose of the hearing and the grounds upon which the board is considering the proposed action;

(3) an opportunity for each of the following:

(A) To appear;

(B) to respond to the allegations which are the basis for the board's proposed action.

(e) Following the special hearing, a written statement of the board's order, including the reasons for its determination, shall be issued by the board.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Article 600 Conditional Release

Kan. Admin. Regs. § 45-600-1 General provisions

(a) Each inmate who has served the maximum sentence, less all projected good time credits and subject to adjustment for any forfeiture of good time credits, shall be placed on conditional release.

(b) Each offender on conditional release status shall be placed under parole supervision in the same manner as that for other parolees and shall be subject to the same terms and conditions as those for other parolees. If the parole officer establishes probable cause that an offender has violated the conditions of conditional release, the offender may be returned to confinement, subject to the opportunity for a final revocation hearing and to an order of the board, which shall be considered in the same manner as that for a parole violator. The offender shall have the same rights at the final revocation hearing as those of a parolee under K.A.R. 45-500-2.

(c) Each parolee who achieves conditional release status while on parole shall continue under supervision of the parolee's parole officer. The conditions of parole shall not be changed by the fact that the parolee reached conditional release status.

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History

• History: (Authorized by K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5, and K.S.A. 2001 Supp. 75-5217; implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5, K.S.A. 2001 Supp. 22-3718, and 75-5217; effective Nov. 22, 2002.)

Article 700 Release of Functionally Incapacitated Inmates

Kan. Admin. Regs. § 45-700-1 Application for release

(a) If the secretary believes that an inmate is functionally incapacitated, an application for release may be submitted to the board by the secretary. The application shall be accompanied by documentation attesting to and describing the inmate's functional incapacity. This documentation shall be prepared by a medical doctor and, as needed, by a mental health professional. The documentation shall include a comprehensive description of the inmate's condition and prognosis.

(b) For the purposes of this article, "functional incapacitation" means that an inmate has a condition caused by injury, disease, or illness, including dementia, that is determined, to a reasonable degree of medical certainty, to permanently render the inmate physically or mentally incapacitated to the extent that the inmate lacks effective capacity to cause physical harm.

(c) The application shall include a release plan, which shall provide details about where the inmate will reside and shall identify all treatment providers and facilities to be used by the inmate. Before the inmate's release, this release plan shall be subject to review and approval by department of corrections (DOC) staff in the same manner as any other release plan.

(d) All medical and treatment records pertaining to the inmate shall be available for review by the board, upon its request. If deemed necessary by the board, a second medical opinion may be requested.

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History

• History: (Authorized by and implementing L. 2002, Ch. 57, Sec. 1; effective, T-45-7-26-02, July 26, 2002; effective Nov. 22, 2002.)

Kan. Admin. Regs. § 45-700-2 Review and consideration of application for release

(a) On receipt of the secretary's application for release of a functionally incapacitated inmate, a member of the board shall review the application and, with assistance from DOC staff, shall ensure that the following steps are taken:

(1) The written notification of the application provided by the secretary to each prosecuting attorney and the judge of each court in which the inmate was convicted shall include confidential copies of each medical or mental health report documenting the incapacitating condition. The confidentiality of these reports shall be maintained.

(2) The written notification of the application provided by the secretary to each victim or, if any victim is deceased, to one or more members of the victim's family with known addresses shall not include any of the confidential medical or mental health reports documenting the incapacitating condition. However, a general description of the inmate's incapacity shall be included in the written notification.

(b)(1) At the discretion of the board member reviewing the application, the final decision on the application may be entered with or without a formal hearing after considering all available information, including the following:

(A) The documentation required by subsection (a) of K.A.R. 45-700-1;

(B) any comments received from any prosecuting attorney, judge, crime victim, or member of the victim's family; and

(C) the factors identified in paragraph (a)(8) of L. 2002, Ch. 57, Sec. 1, and amendments thereto, and the following additional factors:

(i) The inmate's age and medical condition;

(ii) the health care needs of the inmate;

(iii) the inmate's custody classification and level of risk of violence; and

(iv) the inmate's effective capacity to cause physical harm.

An inmate's need for long-term care may be considered in reaching a determination that an inmate has a functional incapacitation, but shall not be determinative in itself.

(2) If a hearing is scheduled, additional information or evidence may be requested from any of the medical or mental health providers who prepared reports for the application, or from any other person or persons having relevant information or knowledge.

(c) If the board finds that the inmate is functionally incapacitated and does not represent a risk to public safety, the release of the inmate may be ordered by the board under the terms of the approved release plan and any additional terms and conditions of release deemed necessary by the board, subject to the following voting requirements:

(1) The statutory requirements for voting to parole inmates sentenced for a class A or class B felony or for off-grid crimes committed on or after July 1, 1993; and

(2) a vote to release the inmate by a majority of the members of the board under either of the following circumstances:

(A) The inmate is serving a sentence for a severity level 1, 2, or 3 felony on the sentencing guidelines grid for non-drug crimes.

(B) A formal hearing regarding the application for release, with the inmate present, has not been held.

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History

• History: (Authorized by and implementing L. 2002, Ch. 57, Sec. 1; effective, T-45-7-26-02, July 26, 2002; effective Nov. 22, 2002.)

Article 800 Discharge

Kan. Admin. Regs. § 45-800-1 General provisions

(a) Each offender on release status who meets at least one of the following conditions shall be discharged from supervision:

(1) The offender has served the maximum term or sentence as determined by K.S.A. 22-3722 and amendments thereto.

(2) Discharge is recommended by the parole officer and approved by the board as provided in K.S.A. 22-3722 and amendments thereto.

(b) A final order of discharge also may be generated by the board on its own initiative, as provided in K.S.A. 22-3722 and amendments thereto, if the board is satisfied that final release is not incompatible with the best interests of society and the welfare of the offender.

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History

• History: (Authorized by K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; implementing K.S.A. 22-3722; effective Nov. 22, 2002.)

Article 900 Executive Clemency

Kan. Admin. Regs. § 45-900-1 Procedures

(a) Each inmate who desires to apply to the governor for executive clemency shall make that request to a facility representative designated by the warden.

(b) The applicant shall prepare, on forms furnished by the board, a written statement of the reasons for requesting clemency and shall complete all additional information requested on the forms. The applicant shall return the completed application to the facility representative. If the applicant prefers not to disclose the reasons for the request to facility officials, the forms may be sent, in a sealed envelope, directly to the board.

(c) The review by the board shall include an examination of pertinent records, reports, and other information that may be available, and a personal interview with the applicant, if requested by the board.

(d) Any person who has been convicted of a crime in any court of this state, but who is not in confinement, may apply for executive clemency by making application to the board. On request, the instructions and the form needed to initiate the application shall be provided to that person by the board.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3701; effective Nov. 22, 2002.)

Article 1000 Orders of Restitution and Expenses

Kan. Admin. Regs. § 45-1000-1 Restitution

As a condition of parole or postrelease supervision, any inmate may be ordered by the board to pay restitution in the amount and manner provided in the journal entry of the sentencing court.

If at any time before issuing a certificate of discharge under K.S.A. 22-3722 and amendments thereto the board finds any compelling circumstance that would render a plan of restitution unworkable as provided in K.S.A. 22-3717(n) and amendments thereto, notice of the board's finding shall be given to the court that sentenced the inmate.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Kan. Admin. Regs. § 45-1000-2 Transportation expenses

If transportation expenses are incurred as a result of returning any parolee or offender on postrelease supervision to this state to answer criminal charges, or a probation, parole, or conditional release violation warrant, the agency or department that has incurred these expenses may submit a statement of the expenses to the board before the final revocation hearing or before the initial parole hearing. If the board finds that the statement of expenses is reasonable and necessary, the parolee or offender may be ordered by the board to pay that amount as a condition of parole or postrelease supervision.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)

Kan. Admin. Regs. § 45-1000-3 Manner of payments

If payments have been ordered as a condition of parole, the parole officer may monitor the payments in the same manner as that for any other condition of parole. If a change of circumstances makes payments according to the established schedule unworkable, the parole officer may change the schedule as long as the adjusted schedule still makes it possible for the offender to make all payments before the inmate's discharge. If compelling circumstances develop that render the plan of reparation and the schedule of payment unworkable, the parolee may apply to the board to be released from the payment order.

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History

• History: (Authorized by and implementing K.S.A. 2001 Supp. 22-3717, as amended by L. 2002, Ch. 163, Sec. 5; effective Nov. 22, 2002.)