Did Kentucky's constitution bar shock probation for a person convicted of DUI vehicular homicide?

Plain-English summary

Three Kentucky legislators asked whether judges' unappealable power to grant shock probation after a DUI-related death amounted to arbitrary power under Section 2 of the state constitution. The Attorney General concluded in 2011 that it did not. The opinion said a merits decision on shock probation was within judicial discretion, while courts could still review jurisdictional defects and the Commonwealth could appeal a failure to consider a victim impact statement.

The legislators also questioned why some DUI homicide convictions remained eligible for shock probation while other serious crimes did not. The AG found no Section 2 violation in that statutory distinction. Most DUI vehicular homicide cases, it explained, led to Class C or D convictions outside the statute's definition of a disqualifying violent offender. The AG sharply criticized the policy and urged the General Assembly to make people convicted of drunk-driving-related homicides ineligible.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Judges and appellate review

The opinion examined KRS 439.265 and KRS 439.267, which said orders granting or denying shock probation were not reviewable. It read that limit as applying to the merits of the decision. An appellate court could still decide whether the trial court had jurisdiction; the Commonwealth could also appeal a failure to consider a victim impact statement under KRS 421.520(3). The AG did not find the remaining judicial discretion unconstitutional under Section 2.

People convicted of DUI-related homicide

The opinion distinguished eligibility from a grant of shock probation. It said second-degree manslaughter and reckless homicide were Class C and D felonies, and most DUI vehicular homicide convictions in those categories did not meet KRS 439.3401's definition of a violent offender. The statute therefore did not exclude the possibility of shock probation in those cases; the judge still decided any motion.

Legislators and victims

The AG concluded that the legislative classification had a rational basis under the constitutional test it applied. It nevertheless called the availability of shock probation for drunk-driving-related homicide poor policy and asked legislators to remove that eligibility. The opinion also identified a procedural role for victim impact statements before a court ruled on a shock probation motion.

Common questions

Could a judge grant shock probation after a DUI-related homicide in 2011?

For the Class C or D convictions discussed, the AG said the law did not rule it out. Eligibility left the decision to the sentencing judge; it did not require a grant.

Could the judge's decision be appealed?

The opinion said the merits of a grant or denial were not appealable. It distinguished review of the court's jurisdiction and an appeal by the Commonwealth if the court failed to consider a required victim impact statement.

Did the AG find the difference between DUI homicides and other violent crimes unconstitutional?

No. It found no Section 2 violation in leaving most DUI vehicular homicide convictions eligible while the statute excluded the more serious classes and other specified offenses. It treated the different offense classifications as legislative policy choices under rational-basis review.

Did the opinion endorse that policy?

No. The AG urged the General Assembly to make people convicted of drunk-driving-related homicides ineligible for shock probation, despite finding no constitutional defect in the law it examined.

Background and statutory framework

KRS 439.265 governed shock probation for felony convictions and listed exclusions. KRS 439.3401 defined violent offenders, including capital offenders, Class A felons, and certain Class B felons. The opinion contrasted those categories with the Class C and D offenses it said usually followed DUI vehicular homicide. It applied Section 2 of the Kentucky Constitution to both unreviewable judicial discretion and the statutory difference in eligibility. The AG noted conflicting case law on whether probation involved a constitutional liberty interest, and did not resolve that issue because the statutory distinction survived rational-basis review in its analysis.

Citations and references

• KRS 439.265 and KRS 439.267: shock probation authority and limits on review.
• KRS 421.520(3): victim impact statement requirement discussed as a procedural ground for appeal.
• KRS 439.3401: the violent-offender category used in the eligibility analysis.
• KRS 507.040 and KRS 507.050: offenses the AG said commonly followed DUI vehicular homicide.
• Com. v. Howard, 969 S.W.2d 700, 702 (Ky. 1998): equal-protection principle cited by the AG.
• Com. ex rel. Hancock v. Melton, 510 S.W.2d 250 (Ky. 1974): authority for jurisdictional review of a shock-probation order.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_366d1b34-5e95-4238-9b92-5e302f27ad42/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_366d1b34-5e95-4238-9b92-5e302f27ad42

Original opinion text

OAG 11-005
December 22, 2011
Subject:

Constitutionality of shock probation in DUI vehicular
homicide cases under Section 2 of the Kentucky Constitution

Requested by:

Senator Jack Westwood
23rd Senate District
Senator Julie Denton
36th Senate District
Representative Julie Raque Adams
House of Representatives, 32nd District

Written by:

James M. Herrick
Assistant Attorney General

Syllabus:

Shock probation for persons convicted of a DUI vehicular homicide does not constitute an exercise of absolute and arbitrary power in violation of the Kentucky Constitution, although it is questionable as public policy.

Statutes construed:

KRS 439.265, KRS 421.520(3), KRS 439.3401

Constitutional
provision construed:

KY. CONST. § 2

Opinion of the Attorney General

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Senator Jack Westwood has requested an opinion from the Attorney General on “whether the unappealable discretion given Kentucky judges to grant shock probation to an offender convicted in the case of a DUI death qualifies as absolute and arbitrary power under Section 2 of the Kentucky State Constitution.” Subsequent to that opinion request, similar requests have been made to this office by Senator Julie Denton and Representative Julie Raque Adams. Representative Adams has pointed out that “fetal homicide is a Class A and B Felony and not subject to shock probation, whereas DUI deaths and serious injuries are not Class A or B felonies.” We treat this observation as a secondary question regarding whether this disparate treatment of offenses is itself arbitrary under Section 2. We first address the unreviewability of decisions granting or denying shock probation. Shock probation is governed by Chapter 439 of the Kentucky Revised Statutes. KRS 439.267 authorizes the judge who imposed sentence, upon motion of the defendant, to order shock probation for misdemeanor convictions. In the case of felony convictions, KRS 439.265 authorizes the judge, upon motion, to order shock probation, but with an extensive list of exceptions for specific crimes. The exceptions include capital offenses, Class A felonies, Class B felonies involving death or serious physical injury, felony sexual offenses, first degree robbery, and several other offenses catalogued in KRS 439.3401. Both KRS 439.265(2) and 439.267(2) provide that “[a]ny court order granting or denying a motion to suspend further execution of sentence [i.e., a motion for shock probation] is not reviewable.” The purpose of shock probation has been described as providing “for a 30-to-60 day observation period to be served before the sentencing court is required to reach a final decision as to the granting of probation.” Com. v. Williamson, 492 S.W.2d 874, 875 (Ky. 1973) (holding shock probation constitutional under the separation of powers). (Since 1990 this period has been 30 to 180 days.) Section 2 of the Kentucky Constitution provides: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” The section “is a curb on the legislative as well as on any other public body or public officer in the assertion or attempted exercise of political power.” Sanitation Dist. No. 1 of Jefferson Co. v. City of Louisville, 308 Ky. 368, 375, 213 S.W.2d 995, 1000 (1948). “Section 2 has to do only with the

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exercise of arbitrary power over the lives, liberty and property of individuals.” Guthrie v. Curlin, 263 S.W.2d 240, 244 (Ky. 1953). While various types of legislative enactments have been found arbitrary under Section 2 by the courts during the long history of Kentucky’s present Constitution, including ordinances which gave unbridled discretion to executive bodies, Schneider v. Wink, 350 S.W.2d 504 (Ky. 1961), we are unaware of any case in which it has been held that a legislative grant of power or discretion to the judiciary, in and of itself, was arbitrary. Similarly, although Section 2 has been held to create a right to limited judicial review of executive decisions and acts of local legislative bodies, American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm’n, 379 S.W.2d 450 (Ky. 1964), it has not been construed as granting a right to appellate review of substantive issues ruled upon by a court. Cf. Dryden v. Com., 435 S.W.2d 457 (Ky. 1968). We are reluctant to make theoretical incursions into the field of judicial discretion in the name of Section 2 where the courts have not yet done so. We must note that the courts have had opportunities to examine the issue of the unreviewability of shock probation determinations and, while not faced squarely with the question of Section 2, have never expressed any constitutional misgivings on the subject. See, e.g., Terhune v. Com., 907 S.W.2d 779 (1995). Meanwhile, the case law has clarified the limits of KRS 439.265(2). The unreviewability of an order granting or denying shock probation is only as to review on the merits, so an appellate court can always decide questions as to whether the trial court had jurisdiction to enter the order. Com. ex rel. Hancock v. Melton, 510 S.W.2d 250 (Ky. 1974). Furthermore, in an appropriate case, the trial court may reconsider such an order on its merits under CR 60.02. Com. v. Hakim, 2006 WL 1791210, No. 2005-CA-001064-MR (Ky. App. June 30, 2006) (unpublished decision). KRS 421.520(3), moreover, requires the court to consider a victim impact statement prior to ruling on a motion for shock probation. A decision would therefore be appealable by the Commonwealth on a procedural basis if the court failed to consider a victim impact statement. The discretion of the trial court, to this extent, is not absolute. The merits of the ultimate decision on shock probation, however, being within the trial court’s sound discretion, are neither reviewable on appeal nor subject to a writ of mandamus. Schroering v. McKinney, 906

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S.W.2d 349 (Ky. 1995). We do not deem it appropriate to invade the
province of judicial discretion when Section 2 has never been applied in
that context.
We note that shock probation is a creature of statute and could
freely be abolished; alternatively, the General Assembly could mandate
it in certain cases and forbid it in others. Such legislative action would
of course be subject to no appeal. Furthermore, a ruling on shock probation is not the only stage of the criminal process where a decision is unreviewable.1 Orders of the Parole Board, for example, cannot be appealed. KRS 439.330(3). Similarly, there is no means by which to appeal a verdict of acquittal, or an exercise of the Governor’s power to commute a sentence or grant a pardon. Nor is there any recourse for a crime victim against prosecutors who may decide, within the scope of their discretion, not to prosecute an alleged offender, or to bring a charge of manslaughter as opposed to murder. We trust that the democratic process, under which judges and other public officials are periodically held accountable to the electorate of Kentucky, works to deter egregious abuses of sound judicial discretion. We turn, then, to the second question presented; namely, whether the difference in availability of shock probation between DUI homicides/injuries and other serious crimes may violate Section 2 of the Constitution. Section 2, dealing as it does with life, liberty, and property interests, “reflect[s] the equal protection provisions of the Fourteenth Amendment to the United States Constitution.” Com. v. Howard, 969 S.W.2d 700, 702 (Ky. 1998) (citing Com. v. Smith, 875 S.W.2d 873 (Ky. 1994)). Whether shock probation involves a constitutional liberty interest is a questionable matter under the existing case law. “It is clear in this Commonwealth that probation is a privilege rather than a right.” Tiryung v. Com., 717 S.W.2d 503, 504 (Ky. App. 1986). “As the United States Supreme Court has noted, ‘[r]evocation [of probation] deprives an individual, not of the absolute liberty to which every citizen is enti1

We note that other types of orders, outside the criminal context, have similarly been designated as unreviewable, including court orders consolidating actions for validation of bonds (KRS 66.191(8)). Decisions of the Kentucky Economic Development Finance Authority (KRS 154.26-080(13)) and the Tourism Development Finance Authority (KRS 148.857(6)) are likewise unappealable. While not directly bearing on the question at hand, these statutes demonstrate that the unreviewability of shock probation decisions is not unique in Kentucky law.

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tled, but only of the conditional liberty properly dependent on observance of special … restrictions.’” Robinson v. Com., 86 S.W.3d 54, 46 (Ky. App. 2002) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Under this analysis, a decision as to probation of a prisoner would not equate to the exercise of “power over the … liberty … of freemen” as intended by Section 2 of the Kentucky Constitution. In contrast to the later Robinson case, however, Com. v. Meyers, 8 S.W.3d 58 (Ky. App. 1999), found that with questions of probation, “[i]n the final analysis, individual liberty is at stake. This being true, the matter of probation certainly has constitutional implications.” Without resolving this apparent discrepancy as to whether probation implicates a constitutional liberty interest, we recognize that in any event, statutory classifications affecting probation do not violate Section 2 if they have a rational basis. When legislation “does not infringe on a fundamental right, nor does it impact on a suspect class negatively,” equal protection “requires only that the classification rationally further a legitimate state interest.” Com. v. Howard, supra, 969 S.W.2d at 702-03. The Meyers panel found a violation of the equal protection component of Section 2 where KRS 532.080(7) allowed first-degree persistent felony offenders to receive probation, shock probation, or conditional discharge for Class D felonies while subsection (5) of the same statute denied eligibility to second-degree PFO Class D felons. The Court of Appeals noted: “Such difference in treatment is indeed baffling as PFO I Class D felons are the more pestilent offenders. Upon its face, the [distinction] seems to offend common notions of equality and fair play.” Accordingly, the court found no rational basis for the more favorable treatment given to the first-degree PFO defendants. Faced with this unconstitutionality, the Meyers panel had to determine whether the proper remedy for the inequality was to extend the benefit of eligibility to the PFO II defendants, or to deny it to the PFO I defendants. The court looked to the relevant legislative pronouncement as a guide to the statute’s overall intent and found that the “apparent state interest” in classifying PFO Class D felons was “reducing overcrowding in prisons.” 8 S.W.3d at 61. Therefore, to further that interest, the Court of Appeals extended eligibility for probation, shock probation, and conditional discharge to all PFO Class D felons. In the question presented here, we observe that amendments to the felony shock probation statute, KRS 439.265, bearing upon eligibil-

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ity, have been made during various legislative sessions. In 1976, with
the restoration of capital punishment in Kentucky, it was clarified that
shock probation was inapplicable where a sentence of death was imposed. (1976 Ky. Acts ch. 15, sec. 7.) In 1982, shock probation on the court’s own motion was abolished. (1982 Ky. Acts ch. 153, sec. 2.) In 1984, the General Assembly mandated that a convicted felon’s time served after sentencing in a county jail pending delivery to prison should count in calculating eligibility for shock probation, although time spent on any form of release after conviction should not. The emergency clause recited that “shock probation is an essential tool of the criminal justice system to help control recidivism and is an alternative the judiciary can use to help ease jail and prison overcrowding.” (1984 Ky. Acts ch. 26, sec. 2.) The General Assembly has made further exceptions to the availability of shock probation. KRS 532.045, first enacted in 1984, provides that shock probation shall not be granted to a person convicted of various sexual or related offenses against a minor. In 1994, the legislature enacted and modified several laws relating to sexual offenders. As part of 1994 HB 96, certain more serious sexual offenders were made ineligible for shock probation and lesser sexual offenders were required to be evaluated by a state treatment program prior to consideration of a motion for shock probation. In 2000, violent offenders were made ineligible for shock probation. (2000 Ky. Acts ch. 401, sec. 2.) “Violent offender” is defined in KRS 439.3401 as including capital offenders, Class A felons, and Class B felons if the Class B felony involved the death, serious physical injury, first-degree rape, or first-degree sodomy of the victim. The 2000 enactment expresses no legislative intent beyond the statutory language itself. In all of this legislative history, the only explicit pronouncement of a legislative purpose is found in the 1984 emergency clause cited above, which stated that shock probation “is an essential tool … to help control recidivism and … ease jail and prison overcrowding.” We can discern no overarching purpose in the subsequent amendments to KRS 439.265 beyond the specific purposes evident in those enactments: namely, to treat sexual offenders and violent offenders more stringently. The particular issue with which we are presented is whether it is arbitrary for “violent offenders” to include those convicted of a capital offense or a Class A or Class B felony, but not those convicted of a

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lesser offense resulting in the death of the victim. A case of a DUI vehicular homicide, in most cases, would not result in a conviction for murder (KRS 507.020(1)(b)), but for either second-degree manslaughter (KRS 507.040) or reckless homicide (KRS 507.050). Manslaughter in the second degree is a Class C felony and reckless homicide is a Class D felony. Thus, a conviction for one of these offenses would not make the person convicted a “violent offender” under KRS 439.3401, and therefore would not deprive the offender of the possibility of shock probation under KRS 439.265(4). Legislative value judgments made in classifying felonies and misdemeanors reflect legitimate public policy choices for which legislators may be held accountable to the electorate. We cannot dismiss these choices of the General Assembly as lacking any rational basis under the Constitution, particularly when the law relating to shock probation has continually been the object of close legislative attention in regard to its application and limits. So long as the elements of two offenses are not identical, we have no principled basis on which to condemn particular legislative choices as arbitrary with regard to the classification of crimes. We therefore discern no violation of Section 2 of the Kentucky Constitution in the fact that most DUI vehicular homicide convictions would not exclude the possibility of shock probation. While we find no constitutional violation in the judiciary’s ability to grant shock probation to individuals convicted of DUI-related homicides, this office does question the value of a policy that permits those convicted of unspeakably reckless and traumatic crimes to walk free after thirty days served on a multi-year sentence. DUI-related homicides inflict tragedies of unimaginable consequence on innocent Kentuckians and their families. The individuals who recklessly disregard the safety of their fellow citizens by choosing to drink and drive deserve no benefit from legal technicalities. Punishment in these instances is just and deserved. We encourage the General Assembly to address what we believe is an omission in our state law. Individuals convicted of drunk-driving-related homicides should not be eligible for shock probation. Our state law should prioritize punishment and deterrence in such cases as we continue the campaign of public awareness against drunk driving.

Jack Conway
Attorney General

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James M. Herrick
Assistant Attorney General