- Kentucky allows for discretionary parole, but requires minimum sentences for certain violent offenders.
- Kentucky allows for discretionary LWOP, but JLWOP is no longer permitted. A youthful offender may be sentenced, however, to life without parole for 25 years. KRS § 640.040.
- Juveniles may be transferred to adult court at age 14.
Ky. Const. § 17 (2012)
§ 17. Excessive bail or fine, or cruel punishment, prohibited. -- Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishment inflicted.
NOTE: Section 17 of the Kentucky Constitution is interpreted as the equivalent of the Eighth Amendment. While Section 17 has been interpreted to be broader than the Eighth Amendment with regards to JLWOP, the gap between the constitutions seems to have narrowed or even disappeared after Graham and Miller
- Sentencing Guidelines System – Kentucky does not have sentencing guidelines
- Sentencing in Kentucky requires a two step procedure. First, after considering the statutory range and the facts and circumstances relating to the crime, the jury sets a punishment tailored to the crime. Second, the Judge requests and reviews a Pre-Sentence Investigation Report, and decides whether the jury recommended sentence is too severe. Hampton v. Commonwealth, 666 S.W.2d 737, 741 (Ky. 1984).
- Habitual Offender Statute – KRS § 532.080 (2012) -- 532.080. Persistent felony offender sentencing.
Kentucky courts will generally not disturb a sentence that falls within the limits prescribed by statute, even if the penalty prescribed is quite harsh. See Hampton v. Commonwealth, 666 S.W.2d 737, 741 (Ky. 1984); Turpin v. Commonwealth, 350 S.W.3d 444, 448 (Ky. 2011); Weber v. Commonwealth, 303 Ky. 56, 64 (Ky. 1946).
While setting criminal penalties is primarily a legislative function, the Supreme Court of Kentucky still retains the power “to determine whether or not an act of the legislature violates the provisions of the Constitution.” Workman v. Commonwealth, 429 S.W.2d 374, 377 (Ky. 1968).
State Constitution & Proportionality
Section 17 of the Kentucky Constitution provides protections “parallel to those accorded by the Eighth Amendment.” Turpin v. Commonwealth, 350 S.W.3d 444, 448 (Ky. 2011).
The variation between Section 17’s “cruel punishment” and the Eighth Amendment’s “cruel and unusual punishments” is “a distinction without difference.” Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003); Edmondson v. Commonwealth, 2002 Ky. LEXIS 271, 17-18 (Ky. Dec. 19, 2002). Section 17 of the Kentucky Constitution “affords no greater protections in this area than its Federal counterpart.” Sanford v. Commonwealth, 2011 Ky. Unpub. LEXIS 109, 12-13 fn.6 (Ky. Dec. 22, 2011).
- Nevertheless, Section 17 appears to provide broader protections for juveniles: In Workman v. Commonwealth, 429 S.W.2d 374 (Ky. 1968), the Supreme Court of Kentucky found that the JLWOP sentence of two 14-year old boys convicted of rape and other offenses shocked the conscience of society and therefore violated Section 17 of the Kentucky Constitution. The court held that “life imprisonment without benefit of parole for two fourteen-year-old youths under all the circumstances shocks the general conscience of society today and is intolerable to fundamental fairness.” Id. at 378. It further noted that “it is impossible to make a judgment that a fourteen-year-old youth, no matter how bad, will remain incorrigible for the rest of his life.” Id.
Under the Kentucky Constitution, “cruel punishment” can relate to severity of punishment either in duration or amount. Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003). However, if the sentence falls within the range specified by statute, the courts will generally not disturb that sentence. Id.
Although unusual, a sentence may be “so disproportionate to the offense committed as to shock the moral sense of the community,” thereby falling within the prohibition of Section 17. Workman v. Commonwealth, 429 S.W.2d 374, 377 (Ky. 1968).
To determine whether a sentence is disproportionate, Kentucky courts follow the federal three-prong test: (1) The court compares the “gravity of the offense and the severity of the sentence” and determines whether this comparison “leads to an inference of gross disproportionality;” (2) If the court finds an inference of gross disproportionality, the court then compares the offender’s sentence with the sentences imposed on other offenders in the same jurisdiction; (3) the court compares the offender’s sentence with those imposed on other offenders for the same crime in other jurisdictions. Turpin v. Commonwealth, 350 S.W.3d 444, 447-448 (Ky. 2011) (quoting Harmelin v. Mich., 501 U.S. 957 (1991)).
A sentence to a term-of-years is not per se unconstitutional under Section 17 of the Kentucky Constitution. Cole v. Commonwealth, 2005 Ky. App. Unpub. LEXIS 1004 (Ky. Ct. App. Oct. 14, 2005).
Whether to run the sentences concurrently or consecutively is generally within a trial court’s discretion. KRS 532.110(1) (2012); Hampton v. Commonwealth, 666 S.W.2d 737, 741 (Ky. 1984).
The following cases mention both the Eighth Amendment and Section Seventeen of the Kentucky Constitution, but fail to provide any significant separate analysis of Section Seventeen:
- Guy v. Commonwealth, 2004 Ky. Unpub. LEXIS 173 (Ky. Jan. 22, 2004) –
- Harrison v. Commonwealth, 858 S.W.2d 172, 177 (Ky. 1993) –
- Brown v. Commonwealth, 818 S.W.2d 600 (Ky. 1991) –
- Commonwealth v. Hayes, 2011 Ky. App. Unpub. LEXIS 403 (Ky. Ct. App. May 13, 2011) –
- Hess v. Commonwealth, 2010 Ky. App. Unpub. LEXIS 477 (Ky. Ct. App. June 11, 2010) –
- Caudill v. Commonwealth, 2010 Ky. App. Unpub. LEXIS 311 (Ky. Ct. App. Apr. 9, 2010) –
- Covington v. Commonwealth, 2009 Ky. App. Unpub. LEXIS 248 (Ky. Ct. App. Mar. 20, 2009) –
- Praete v. Commonwealth, 722 S.W.2d 602 (Ky. Ct. App. 1987) –
- Collett v. Commonwealth, 686 S.W.2d 822, 824 (Ky. Ct. App. 1984)
Leading Court Discussions of Graham and Miller
Campbell v. Com., 2009-SC-000489-MR, 2011 WL 1642028 (Ky. Apr. 21, 2011) (Graham is limited to addressing the issue of LWOP for a non-capital crime and LWOP for 25 years gives defendant meaningful opportunity of release; Graham does not require LWOP 25 be scrutinized under the same standard.)
Sanford v. Com., 2011-SC-000143-MR, 2011 WL 6826405 (Ky. Dec. 22, 2011) (Age consideration is not relevant to cruel and unusual punishment analysis when defendant is 21 when committing the crime.)
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