Kentucky

NOTE TO USER:

While every attempt has been made to ensure accuracy, local practices and procedures may vary.  We encourage every user to consult with an experienced juvenile justice practitioner in the jurisdiction to determine how best to proceed in any particular situation.        

 

 

Juvenile Collateral Consequences in the State of Kentucky

 

Introduction

            Kentucky’s Unified Juvenile Code was enacted into law in 1986.[1]  In the 1990s, the movement to increase punishment for young people moved the Kentucky juvenile justice system towards a more punitive approach to justice and resulted in more potential juvenile collateral consequences. 

 

Understanding the Juvenile Justice System

            The juvenile session of the District Court of each county has exclusive jurisdiction in proceedings involving children under the age of eighteen years old.[2]  The court is primarily focused on rehabilitating the juvenile.[3]  However, jurisdiction over certain juveniles can be transferred to the Circuit Court when children are as young as fourteen years old and commit certain crimes.[4]  If the juvenile is fourteen and has committed a capital offense or certain felonies including manslaughter, certain degrees of assault, rape and other sexual offenses, the juvenile may be charged as a youthful offender and the case can be transferred to the Circuit Court.[5]  Additionally, if a juvenile is sixteen years of age or older, has committed certain degrees of felony offenses, and has previously been adjudicated a public offender, the county attorney may motion for the case to be transferred to the Circuit Court and to charge the juvenile as a youthful offender.[6]  Furthermore, if a juvenile is fourteen years or older and charged with a felony in which a firearm was used, the juvenile will be transferred to the Circuit Court for trial as an adult if there is probable cause to believe the juvenile committed the alleged felony and that a firearm was used during that felony.[7]

            Kentucky has three designations for juvenile offenders: status offenders, public offenders and youthful offenders.  Status offenders are defined as juveniles who are accused of committing offenses that would not be crimes if committed by an adult, including when a juvenile is beyond the control of his or her parents or school, habitual runaways, habitual truancy, and alcohol or tobacco offenses.[8]  A public offender is a juvenile accused of committing a public or firearm offense that, if committed by an adult, would be a crime.[9]  Finally, a youthful offender is defined as a child, regardless of age, that is transferred and convicted by the Circuit Court.[10]

 

Notification of Collateral Consequences of Juvenile Arrest and Court Records

            The Supreme Court established that a guilty plea is not a valid waiver of constitutional and statutory rights unless the court record discloses that the defendant voluntarily and understandingly entered a guilty plea.[11]  Kentucky held that the Boykin decision applies to juvenile status offenders as well as public offense adjudications.[12]  However, with the exception of immigration consequences, there is no requirement for judges, attorneys, or other parties to inform a juvenile of collateral consequences. 

 

Treatment of Juvenile Arrest Records

Are photographs and fingerprints routinely collected?

            Photographs and fingerprints of all persons arrested on a felony charge are obtained by city and county law enforcement agencies.[13]  Upon arrest, the offense reporting procedure requires the collection of two sets of fingerprint cards, a mug shot or the negative of a mug shot, and a general description report.[14]  In addition, Kentucky law mandates that the collected information be transmitted to the Justice and Public Safety Cabinet of the Kentucky State Police Department within thirty days of the arrest.[15]  In order to capture, search, and store fingerprint and arrest data, Kentucky maintains an Automated Fingerprint Identification System (AFIS).[16]  State administrative regulations also require the Department of the Kentucky State Police to have a LiveScan fingerprint device in every detention center in the Commonwealth.[17]

 

Is DNA routinely collected?

            DNA samples will be collected from all youth transferred to adult court for prosecution and convicted of a felony offense on or after March 27, 2009.[18]  The law requires that a DNA sample be obtained from any juvenile, who was at least fourteen years of age at the time of the commission of the defined offense, and is then adjudicated delinquent of having committed certain sexual offenses or has attempted to commit those same felonies.[19]  The law in Kentucky also requires that all youth adjudicated juvenile sexual offenders must have their DNA collected by the state. [20]Additionally, the law requires that all youth under the age of eighteen, convicted of a felony or adjudicated as a public offender for similar offenses in other jurisdictions, are required to provide a DNA sample that will be collected by authorized personnel.[21]

Are juvenile arrest records made public?

            Generally juvenile arrest records are deemed to be confidential and are not disclosed to the public.[22]  Kentucky law maintains that the information can be revealed to a child, parent, victims, or other persons authorized to attend a juvenile court hearing.[23]  However, for good cause, a court can provide records to other individuals.  Additionally, “juvenile court records which contain information pertaining to arrests, petitions, adjudications, and dispositions of a child may be disclosed to victims or other persons authorized to attend a juvenile court hearing.”  An “authorized person” includes social workers, probation officers, school personnel, prosecutors, court staff, mental health providers and other providers of services.[24]

            In addition, the public will have access at the courthouse to the juvenile petition, juvenile court order of adjudication, and juvenile disposition in cases where a juvenile was fourteen years of age or older at the time of the commission of what would be (if committed by an adult) a capital offense, Class A, B, or C felony, or for any offense involving the use or display of a deadly weapon.[25]

What juvenile arrest data may be distributed?

            Generally, juvenile arrest data may not be distributed to the public.  However, statutory regulations provide that any juvenile court records pertaining to arrest, petitions, adjudications, and dispositions of a child may be disclosed to victims or others authorized to attend a juvenile court hearing.[26]

Do law enforcement agencies have the authority to distribute juvenile arrest data to employers?

            Law enforcement agencies do not have the authority to distribute juvenile arrest data to employers.  The Kentucky Administrative Office of the Courts (AOC) provides background criminal checks for individuals, businesses, licensing agencies, and government entities.[27]  However, information released by a background check does not include juvenile arrest, adjudication, or disposition information prior to the age of eighteen.[28]  However, if a youth is fourteen years of age or older and is adjudicated delinquent for certain offenses including murder and felonies involving a weapon, the record will be available to the public, albeit limited to the petition, order of the adjudication, and disposition in juvenile delinquency proceedings.[29]

Do law enforcement agencies have the authority to distribute juvenile arrest data to state agencies?

            Law enforcement agencies have the authority to distribute information relevant to the investigation and prosecution of a case to necessary public officers or employees engaged in that investigation or prosecution.[30]  However, any record obtained pursuant to that subsection will be used for official use only, and shall not be disclosed publicly.[31]  Probation officers may share information concerning children under their supervision who are on probation as public, status, or youthful offenders with other probation officers who are supervising that particular child, as well as with their supervisors and others in the department as necessary to fulfill the duties of the probation officer.[32]

Do law enforcement agencies have the authority to distribute juvenile arrest data to schools?

            When a child is found guilty of an offense that would classify the child as a youthful offender, “the judge in the court in which the matter was tried shall direct the clerk to notify the superintendent of the public school district in which the child is enrolled or the principal of any private elementary or secondary school which the child attends of the adjudication and the petition and disposition of the case.”[33]  The superintendent is to inform the principal of the school in which the child is enrolled and the court should direct the prosecuting entity to inform the school of the case with a statement of the facts.[34]

            If a child is found guilty of a felony or an offense that would classify the child as a violent offender, the superintendent of the public school, or the principal of the private school or secondary school in which the child is enrolled will be notified within five days of the charge, adjudication, and disposition of the case.[35]  If a child is found guilty of an offense that would be a felony or misdemeanor if committed by an adult, and the misdemeanor involved a controlled substance, deadly weapon, or physical injury to another person, the superintendent or principal of the private school where the child attends will be notified of the charge, adjudication, and disposition of the case within twenty-four hours of the petition being filed.[36]  All records that are received by the schools are to be kept in a locked file cabinet.[37]  Furthermore, “if the petition is dismissed, all records of the incident or notification created in the school district or the school . . . shall be destroyed, and shall not be included in the child's school records.”[38]

Do law enforcement agencies have the authority to sell juvenile arrest data to private mining companies?

            Non-conviction data can be disseminated to individuals and agencies for the purpose of evaluation, research or statistical activities.[39]  The data is disseminated pursuant to an agreement with the Criminal Identification and Records Branch of the Kentucky State Police.[40]  The agreement must limit the use of the data to evaluation, research, or statistical purposes, ensure the confidentiality and the security of the data, and provide sanctions for the evaluation of the agreement.[41]   

 

Treatment of Juvenile Court Records

At what point in the court process do court records begin?

            In Kentucky, all petitions on status and public offenses, as well as potential youthful offender cases are to be filed through the Court Designated Worker’s Office (CDW), a division of the AOC.[42]  Cases are referred to court only if the child does not qualify for diversion, the diversion is not successful, or the prosecutor or judge direct that the case shall go to court.[43]

Where and how are juvenile records stored?

            The court keeps juvenile court records in a special record book known as the juvenile record.[44]  The AOC is “the primary repository of court records of juveniles charged with, arrested for, and against whom complaints have been filed, involving status offenses, public offenses, and youthful offender proceedings, together with all court records of the handling and disposition of those cases, and shall keep and maintain these records.”[45]  The information that is collected and maintained includes a child’s name, race, charges, and disposition, and may include other information concerning actions taken in the case.[46]

            The DJJ retains all records concerning youth detained in the DJJ detention facilities on public and youthful offender offenses.[47]  The DJJ probation offices retain records on all youth under probationary supervision or under supervised release from a DJJ youth development center.[48]  Additionally, social workers for the Cabinet for Health and Family Services retain records on all youth supervised by the cabinet.[49]

Who can access juvenile court records?

            In Kentucky, juvenile court records are generally confidential and are not disclosed except to the child’s parent, victims, or other persons authorized to attend a juvenile court hearing, unless ordered by the court for good cause.[50]  Other individuals authorized to view the juvenile record include: a public officer or employee engaged in the investigation and prosecution of a case; a peace officer engaged in the investigation and prosecution of a case; an employee of the Department of Juvenile Justice or cabinet, or its designees; or an attorney for the parties involved.[51]  However, any records obtained shall be used for official use only and shall not be disclosed publicly.[52]

            Additionally, a probation officer or a probation officer’s employee sitting in a juvenile session may not divulge or communicate any information obtained pursuant to the discharge of his duties to any person other than the court, law enforcement, the Department of Juvenile Justice, an officer of the court interested in the case, a member of the advisory board of the court, or a representative of the cabinet.[53]  Furthermore, the release of a child’s treatment, medical, mental, or psychological records is prohibited unless presented as evidence in Circuit Court.[54]  The release of any records resulting from the child’s prior abuse and neglect is also prohibited.[55]

What information does a juvenile court record contain?

            A juvenile court record contains information pertaining to arrest, petitions, adjudications and dispositions of a child.[56]

 

Sealing and Expunging Delinquency Files or Records

Do indigent juveniles have access to post-dispositional representation for limiting distribution of records?

            An indigent juvenile committed to the DJJ or the Cabinet of Health and Family Services for having committed a public or status offense has the right to be represented in any post-dispositional proceeding.[57]  If the attorney or the court determines that the post-dispositional proceeding is not one that a reasonable person with adequate means willingly would bring at his own expense, the indigent juvenile has no right to be represented.[58]

Do juveniles have the right or opportunity to expunge court records?

            A juvenile may petition the court for the expungement of court records if adjudicated as a status offender or as a public offender with only a misdemeanor record, and the adjudication did not involve the guilt of an offense which would have been a felony, if the offense was committed by an adult.[59]  The juvenile must be informed of the right of expungement at the time of the adjudication.[60]

How do juveniles expunge court records?

            The child, court, a probation officer of the court, a representative of the Department of Juvenile Justice or the cabinet, or any other interested person may initiate expungement proceedings.[61]  The petition for expungement must be filed and the order entered no sooner than two years after the date of termination of the court’s jurisdiction over the person, or two years after the juvenile’s unconditional release from commitment to the DJJ or the Cabinet for Health and Family Services or a public or private agency.[62]

Do juveniles have the right or opportunity to seal court records?

            Juveniles have the opportunity to seal court records.[63]  All index references to the person and the charges are to be deleted from court files.[64]  Copies of the order to seal the records are to be sent to each agency identified in the court’s order.[65]  Inspection of any records may thereafter be permitted only by the child or a person identified by the child as having the right to see said record.[66]

How do juveniles seal court records?

            The court will order juvenile records sealed if it finds that there have not been any felony convictions, enumerated adjudications, or pending proceedings or petitions against a juvenile since the termination of the court’s jurisdiction or release from the DJJ.[67]  If a juvenile was the subject of an action under Kentucky’s Dependency, Neglect, and Abuse chapter, the individual may make a motion to seal the record after attaining majority.[68]  However, the court may order a record unsealed if good cause is shown.[69]  If a juvenile is the subject of proceedings for the voluntary or involuntary termination of parental rights and a final order is entered, all papers and records will be sealed.[70]  The record may not be opened for inspection by any person other than a representative of the cabinet, unless the court issues a written order or inspection is authorized.[71]         

Who has access to sealed juvenile records?

            The inspection of sealed records may be permitted only by petition of the person named in the records and must include the names of those permitted to view the sealed record.[72]

How may a juvenile describe a record that has been sealed?

            After the record is sealed, the proceedings of the case are deemed never to have occurred and all index records are deleted.[73]  The juvenile may therefore respond that no record exists upon any inquiry into the matter.[74]

 

Challenging Court Record and Arrest Record Accuracy

Is there a way for corrections to be made to juvenile court and arrest records?

            Corrections can be made to juvenile court records.[75]  Corrections may also be made to juvenile arrest records if the basis of the challenge stems from erroneous information, misinformation, or fictitious information.[76]  These statutes are not specific to juveniles, but the statutes are applicable to juveniles.

What are the procedures, costs, and timing for correcting juvenile court and arrest records?

            For court records, the court may correct clerical mistakes in judgments, orders, or other parts of the record at any time on its own initiative or on the motion of any party.[77]  Additionally, “[o]n motion a court may . . . relieve a party or his/her legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the Kentucky Rules of Civil Procedure Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief.”[78]

            To correct an arrest record, an individual must initiate a challenge to the arrest record within thirty days of reviewing the record.[79]In order to do so, the individual must complete a “Challenge of Record” form.[80]  The individual or his attorney must be notified of the status of the request within thirty days of the date the individual challenged the record.[81]

 

Background Checks

            The dissemination of criminal history record information, “concerning proceedings relating to the adjudication of a juvenile as delinquent or in need of supervision, shall not be released to the public without court order.”[82]

 

Employment Opportunities

Can juvenile records be viewed by potential non-government employers who have a juvenile’s name and address?

            In Kentucky, an adjudication and disposition in juvenile or family court is not considered a conviction.[83]  Juvenile court records are generally classified as confidential and may not be disclosed to anyone other than the parent, child or victims, unless a court order is issued for good cause.[84]

Can a non-government employer view a juvenile’s record if it has been sealed or expunged?

            Only the persons involved in the matter may access sealed records.[85]Statutorily, a child whose record was sealed may petition the court to permit access to the sealed record by a potential employer.[86]  However, a court may, in its discretion, deny said petition.[87]

Can juvenile records be viewed by potential government employers?

            In Kentucky, government job applications require applicants to list all convictions.[88]  An adjudication and disposition in juvenile or family court is not a conviction, so it does not have to be reported.[89]  However, correct completion of the state government application would require that a person adjudicated delinquent as a public offender or found to be a status offender understand that they were not convicted of any offense. 

How should a juvenile respond to inquiries about a record on job applications?

            Because juvenile adjudications are not considered convictions a juvenile is not required to respond affirmatively to questions regarding convictions.[90]  Juvenile court records retained by state agencies and courts “are bound by law to retain those records in confidence . . .”[91]

How should a juvenile respond if asked about prior arrests?

            Juvenile arrest records are confidential and may not be disclosed to the public.[92]The few exceptions regarding individuals with access to juvenile records are only those individuals involved in the criminal proceedings.[93]

 

Collateral Consequences Affecting Elementary & Secondary Education Students

If a youth is adjudicated delinquent or has admitted to committing a crime, is there any affect on elementary or high school education?

            There are two primary ways in which a child is impacted in school by a juvenile adjudication or youthful offender conviction.  First, information about the juvenile adjudication or youthful offender conviction may be shared with the school system.[94]  Second, if a child has been committed as a status offender, public offender or youthful offender, the school system may place a child in a disciplinary alternative program upon that child’s return to his community.[95]

Can a youth be suspended or face expulsion from elementary or secondary school, even if records are sealed or expunged?

            A school administrator has no authority to expel or punish a child based on information contained in a record of an adjudication of delinquency or conviction of an offense.[96]  However, an action can be independently pursued under provisions pertinent to school discipline if the action preceding juvenile court charges also violated school board policy.[97]  A school board or school official may also take action to protect staff and students after the principal makes a determination that the conduct of the student reflected in his school records or obtained by the school from the court indicates a substantial likelihood of an immediate and continuing threat that the student will cause harm to students or staff.[98]  The restrictions ordered must be both the least restrictive alternative available and an appropriate remedy to the threat.[99]  The child or child’s parent may appeal the action of the principal, superintendent or the court.[100]

            If action is taken, a student can be either suspended or expelled.[101]  A student cannot be suspended from school without being given oral or written notice of the charge against him, an explanation of the evidence of the charge, and an opportunity to present his own version of the facts relating to the charge.[102]  If immediate suspension is required to protect people or property or to avoid academic disruption, the preceding three due process features must occur within three days of the suspension.[103]  If a student is suspended, the superintendent, principal, assistant principal, or head teacher must report the suspension in writing immediately to the superintendent and to the parent, guardian, or other person having legal custody of the student.[104]  A student may not be expelled from school until the parent, guardian, or person having legal custody of the student has the opportunity to have a hearing before the school board.[105]

            Suspension of exceptional children is considered a change of educational placement if the child is removed for more than ten consecutive days during the school year or the child is subject to a series of removals that constitute a pattern because the removals accumulate to more than ten school days during a school year.[106]

            Following suspension, the admissions and release committee will review the placement of the child and recommend either continued placement or a change.[107]  If the admissions and release committee determines that the exceptional child’s behavior is related to his disability, the child will not be suspended or expelled any further unless the child’s current placement poses a danger to the child, other children, or educational personnel.[108]  On the other hand, if the admissions and release committee determines the child’s behavior is not related to his disability, the local education agency may pursue its regular suspension or expulsion procedure.[109]

Are there collateral consequences affecting access to state higher education for a juvenile that has been adjudicated delinquent or charged with a crime?

            There are eight public colleges and universities in the Commonwealth of Kentucky and only two of those schools inquire of prior convictions.[110]  Furthermore, there are three public law schools in Kentucky.[111]  The University of Kentucky College of Law inquires of prior arrests and convictions.[112]  There are also two public medical schools in Kentucky.[113]  Medical schools are encouraged by the American Medical College Application Service to conduct criminal background check on all applicants.[114]  In fact, the University of Louisville School of Medicine and the University of Kentucky College of Medicine both require all applicants to consent to a criminal background check that includes convictions and adjudications.[115]

 

Collateral Consequences to Receipt of Public Benefits and Privileges

Will  a juvenile record affect a person’s chances of becoming a foster parent or adopting a child?

            If a person is applying to become a foster or adoptive parent, a juvenile record and any juvenile adjudication will not be considered during the application process.[116]  A juvenile record, therefore, will not affect the applicant’s chances of being approved as a foster or adoptive parent.  However, if the person applying to become a foster or adoptive parent has other people living in his household, all such members, including adolescent members of the household, are subject to a “child abuse or neglect check.”[117]  The proposed household will be rejected and the applicant will not be approved if the child abuse or neglect check reveals that an adolescent member of the household has committed sexual abuse or exploitation of a child, has been responsible for a child fatality related to abuse or neglect, or has had parental rights terminated involuntarily.[118]

Can a juvenile record affect eligibility for public housing?

            An applicant will be denied public housing benefits if he, or a member of the applicant’s household, has been evicted from public housing for drug-related criminal activity within the previous three years.[119]  However, an exception exists if the household member has completed an approved supervised drug rehabilitation program or if the reason for the eviction no longer exists.[120]

            A juvenile’s criminal activity can prevent a household from receiving public housing benefits as well.  The kind of activity that will prevent the applicant from receiving the benefits includes drug-related criminal activity, violent criminal activity, other criminal activity that would threaten the health, safety, or right to peaceful enjoyment of the premises by other residents, or other criminal activity that would threaten the health or safety of the PHA or owner or any employee, contractor, subcontractor or agent of the OHA or owner who is involved in housing operations.[121]  This activity must have occurred within a reasonable time before the decision is made about whether the applicant will receive benefits.[122]

            If a juvenile is subject to a lifetime registration for a sexual offense then the applicant will not be admitted for public benefits.[123]  Also, a juvenile who abuses alcohol in a way that would interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents will also not receive public benefits.[124]

Can an arrest or an adjudication of a juvenile household member result in a family being evicted from public housing?

            There is a range of criminal behavior that will result in eviction and there is no distinction made between whether the activity is done by a juvenile or an adult.  This activity, includes: criminal drug-related offenses;[125]criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by residents;[126]or an abuse or pattern of abuse of alcohol that threatens the health, safety, or right of peaceful enjoyment of the premises by residents.[127]  Although a housing authority may not have access to records, if a landlord gains knowledge of the act, arrest, or adjudication, eviction may result. 

Can a juvenile record affect a driver’s license or permit?

            Certain crimes involving motor vehicles will result in the minor losing his driver’s license or permit, until he reaches the age of eighteen, as a part of a sentence.[128]  For example, a minor can expect to lose a permit or license if the juvenile is adjudicated delinquent for driving under the influence.[129]  In addition a minor might lose a license for the commission of a felony in which a motor vehicle was used, conviction of three charges of reckless driving within twelve months, theft of a motor vehicle, and other crimes.[130]  In general, if the suspension of a driver’s license is not a direct result of adjudication, a juvenile will probably not lose or be prevented from obtaining a driver’s license.[131]

 

Collateral Consequences for National Service through National Guard/Reserve

Will a juvenile record affect chances of applying for the National Guard/Reserves?

            The Kentucky National Guard allows all interested applicants to apply through the National Guard website.[132]  The National Guard is interested in any incidents with law enforcement officers, including juvenile adjudications.[133]  The National Guard/Reserve states that applicants are eligible for enlistment if “they have no record of arrest, adjudication, conviction, probation, community or public service in lieu of conviction, (includes deferred sentence), pending charge, parole, or suspended sentence.”[134]  Applicants are required to disclose even those adjudications that have been expunged.[135]  An applicant is required to be “of good character”[136]and even a juvenile offense that occurred previously may be considered in the determination of whether an applicant is of good character.[137]

When should a juvenile record be disclosed in the application process?

            The juvenile record must be disclosed prior to the taking of the enlistment oath.[138]  The recruiter considers all information to be relevant in determining whether the applicant should be allowed to join the Kentucky National Guard.[139]

Does the National Guard have access to juvenile records?

            The National Guard does perform background checks and interviews.[140]  Additionally, the military requires that the juvenile sign a waiver form, allowing military officials to examine any juvenile record the applicant may possess.[141]  Such information will be considered and could result in the denial of the applicant from serving in the National Guard.[142]

What offenses are more likely to prohibit acceptance by the National Guard/Reserves?

            Any major violation or violent crime as well as felonies would be more likely to prevent a person from being able to join.[143]  While a single DUI as well as other lesser misdemeanors, including juvenile offenses, may be overcome and may not ultimately prevent a person from joining, the Kentucky National Guard still considers all of the applicant’s offenses and may be grounds for rejection.[144]  Additionally, offenses that show a pattern of violence or aggression, such as domestic violence, may result in the automatic exclusion of applicants.[145]

Will sealed or expunged juvenile records be disclosed?

            When a recruiter asks an applicant if he has ever violated the law, the recruiter wants to know about all incidents, including those events that have been sealed or expunged.[146]  If such incidents are not disclosed initially but are later uncovered, the individual may be discharged from service.[147]

 

Special Offender Registries

Do juveniles have to register as sex offenders if adjudicated delinquent on sex offense charges in Kentucky?

            Juveniles adjudicated on sex offense charges in juvenile court are not required to register as sex offenders.[148]As with all other juvenile records, these adjudications are confidential.[149]

How are juvenile sex offenses addressed in Kentucky?

            Youth charged with sex offenses may be transferred to adult court for prosecution if they are fourteen years of age or older and have committed an offense which would qualify them for transfer.[150]  If remaining in the juvenile system and determined by the court to be a juvenile sexual offender, a juvenile will be committed to DJJ and be required to engage in a treatment program.[151]The program is designed to provide early intervention and treatment to juvenile sex offenders in an effort to prevent adult criminal activity and to deter repeat offenses through follow-ups.[152]  Both youth adjudicated as juvenile sexual offenders in the juvenile court and those convicted in adult court as youthful offenders for sexual offenses must undergo the same DJJ sexual offender treatment program.[153]  If the person undergoing treatment reaches the age of nineteen before completing the program, the individual may be returned to the sentencing court and may be ordered to remain in treatment, but not past the age of twenty-one.[154]

Who has access to the records of juvenile sex offenders’ evaluations?

            Communications made regarding the diagnosis and treatment of juvenile sex offenders are normally privileged, meaning that the records are not accessible in a court proceeding.[155]  However, there are some exceptions.  For example, if the communication is related to an ongoing criminal investigation or if the juvenile signs a waiver permitting parties in a suit to access these records, then no privilege exists and the records may be accessed.[156]  Finally, juvenile court adjudications for offenses that would be a felony if committed by an adult are admissible in the jury trial sentencing hearings on felony convictions (including death penalty trials) in adult court for any adult or youth prosecuted in adult court on a felony.[157]

Do juveniles have to register as sex offenders if convicted of sex offense charges in adult court in Kentucky?

            Sex offenses may be transferred to adult court depending on the type of charges being filed and the risk of a juvenile harming the public.[158]  A juvenile will then be prosecuted as a youthful offender.[159]  However, initially, a juvenile will remain in DJJ custody until turning eighteen years of age or eighteen years and five months (if the requisite treatment had not been completed).[160]  At this time, a youth will then come back before Circuit Court for a final sentencing hearing.[161]

Do juveniles have to register as sex offenders if convicted of sex offense charges in the court of another state?

            If a juvenile was convicted of a sex offense in adult court in another state, the juvenile is required to register as a sex offender in Kentucky.[162]  Furthermore, if a juvenile was required to register in his state, the juvenile must register in Kentucky even if the juvenile would not have had to register for the same offense in Kentucky.[163]  Consequently, youth who were disposed of in their home states in juvenile court and NOT convicted in adult court are on Kentucky’s sex offender registry and personal information about them can be found including their photograph and address.

 


 


[1]Ky. Rev. Stat. Ann. § 600.010(1) (2011) (“Ky. Rev. Stat. Ann. Chapters 600-645 shall be known as the Kentucky Unified Judicial Code.”).

For example, juvenile adjudications can be used against a person in sentencing or for impeachment purposes should that individual be facing prosecution as an adult or youthful offender.  See Ky. Rev. Stat. Ann. §§ 532.055(2)(a)(6) (2010);532.025(1)(a) (2011).

[2]Ky. Rev. Stat. Ann.. § 600.010(1) (2011).  The district court will also have jurisdiction over the individual if the crime was committed prior to the individual’s eighteenth birthday.  Id.  However, the court will not have jurisdiction for motor vehicle offenses and the juvenile was sixteen years of age or older.  Id.

[3]See Ky. Rev. Stat. Ann. § 600.010(2)(e) (2011).

[4]Ky. Rev. Stat. Ann. §§ 635.020(2)-(3) (2011).

[5]Ky. Rev. Stat. Ann. § 635.020(2) (2011).

[6]Ky. Rev. Stat. Ann. § 635.020(3) (2011).

[7]Ky. Rev. Stat. Ann. § 635.020(4) (2011).

[8]Ky. Rev. Stat. Ann. § 600.020(59)(a) (2011).

[9]Ky. Rev. Stat. Ann. § 600.020(47) (2011).

[10]Ky. Rev. Stat. Ann. § 600.020(64) (2011).

[11]Boykin v. Alabama, 395 U.S. 238 (1969).

[12]D.R. v. Com., 64 S.W.3d 292, 295-96 (Ky. Ct. App. 2001).  “The court must question the accused to determine that he has a full understanding of what the plea connotes and of its consequences, and this determination must become part of the record.”  Id. at 294 (citing Boykin, 295 U.S. 238).

[13]Ky. Rev. Stat. Ann. § 17.110(1) (2011).

[14]502 Ky. Admin. Regs. 30:020(1) (2011).

[15]Ky. Rev. Stat. Ann. § 17.110(1) (2011).

[16]502 Ky. Admin. Regs. 14:010(1) (2011).

[17]502 Ky. Admin. Regs. 14:010(2)(1) (2011).

[18]Ky. Rev. Stat. Ann. § 17.170(1) (2011).

[19]Ky. Rev. Stat. Ann. § 17.170(2)(b) (2011).

[20]Ky. Rev. Stat. Ann. § 17.170(2)(b)(4) (2011); see also Ky. Rev. Stat. Ann. § 635.510 (2011)(juvenile sexual offender defined).

[21]Ky. Rev. Stat. Ann. § 17.170(3) (2011).

[22]Ky. Rev. Stat. Ann. § 610.320(3) (2011).

[23]Ky. Rev. Stat. Ann. § 610.340(1)(a) (2011).

[24]Id.

[25]Ky. Rev. Stat. Ann. § 610.340(1)(b) (2011).

[26]Ky. Rev. Stat. Ann. § 610.070(3) (2011).

[27]Ky. Court of Justice, Criminal Record Reports, available at http://courts.ky.gov/aoc/courtservices/recordsandstatistics/records.htm(last visited Apr. 29, 2011).

[28]Ky. Rev. Stat. Ann. §  610.320(3) (2011).

[29]Id.

[30]Ky. Rev. Stat. Ann. §§ 610.340(3-4) (2011).  Individuals involved in the case or investigation include the following: a public officer or employee engaged in the investigation and prosecution of a case; a peace officer engaged in the investigation and prosecution of a case; an employee of the Department of Juvenile Justice or Cabinet for Health and Family Services, or its designees; or an attorney for the parties involved, then law enforcement may provide them with arrest information. Ky. Rev. Stat. Ann. §§ 610.340(2-4) (2010).

[31]Ky. Rev. Stat. Ann. § 610.340(3) (2011).

[32]Ky. Rev. Stat. Ann. § 610.320(2) (2011).

[33]Ky. Rev. Stat. Ann. § 610.345(1) (2011).

[34]Id.

[35]Id. at (2).

[36]Id. at (3).

[37]Id. at (7).

[38]Id. at (3).

[39]502 Ky. Admin. Regs. 30:060(1)(d)  (2011).

[40]502 Ky. Admin. Regs. 30:060(1)(d) (2011) (citing 502 Ky. Admin. Regs. 30:040 (2011)).

[41]502 Ky. Admin. Regs. 30:060(1)(d)(1)-(3)(2011).

[42]See Ky. Rev. Stat. Ann. § 605.030 (2011).

[43]Ky. Rev. Stat. Ann. § 635.010 (1)(e)(2011).

[44]Ky. Rev. Stat. Ann. § 610.320(1) (2011).

[45]Ky. Rev. Stat. Ann. § 27A.080 (2011).

[46]Ky. Rev. Stat. Ann. § 27A.300(2) (2011); Ky. Rev. Stat. Ann. § 27A.320 (2011); see also Ky. Rev. Stat. Ann. § 27A.310-.440 (2011).

[47]See State of Ky,State Records Branch, Public Records Division, Department of Juvenile Justice Records Retention Schedule, available at http://kdla.ky.gov/records/recretentionschedules/Documents/State%20Records%20Schedules/kyjuvenilejustice.PDF(last visited Mar. 9, 2011).

[48]505 Ky. Admin. Regs. 2:040 (2011).

[49]Ky. Rev. Stat. Ann. § 194A.065(2) (2011).

[50]Ky. Rev. Stat. Ann. § 610.340(1)(a) (2011).

[51]Ky. Rev. Stat. Ann. § 610.070(3) (2011).

[52]Ky. Rev. Stat. Ann. § 610.340(1)(a) (2011).

[53]Ky. Rev. Stat. Ann. § 610.320(2) (2011).

[54]Ky. Rev. Stat. Ann. § 610.320(4) (2011).

[55]Ky. Rev. Stat. Ann. § 610.320(4) (2011).

[56]Ky. Rev. Stat. Ann. § 610.340(1)(b) (2011).

[57]Ky. Rev. Stat. Ann. §§ 31.110(1); (2)(c)(2011).

[58]Ky. Rev. Stat. Ann. § 31.110(2)(c) (2011).

[59]Ky. Rev. Stat. Ann. § 610.330(1) (2011).

[60]Ky. Rev. Stat. Ann. § 610.330(1) (2011).

[61]Id.

[62]Ky. Rev. Stat. Ann. § 610.330(1) (2011).  The two-year period may be waived if the court finds extraordinary circumstances exist so that the waiver is advisable.  Id.

[63]Ky. Rev. Stat. Ann. § 610.330 (2011).

[64]Id. at (4).

[65]Id. at (5).

[66]Id. at (6).

[67]Ky. Rev. Stat. Ann. § 610.330(3) (2011).

[68]Ky. Rev. Stat. Ann. § 620.160 (2011).

[69]Ky. Rev. Stat. Ann. § 620.160 (2011).

[70]Ky. Rev. Stat. Ann § 625.045(2) (2011); Ky. Rev. Stat. Ann. § 625.108(2) (2011).

[71]Ky. Rev. Stat. Ann. § 625.045(2) (2011); Ky. Rev. Stat. Ann. § 625.108(2) (2011).

[72]Ky. Rev. Stat. Ann. § 610.330(6) (2011).

[73]Ky. Rev. Stat. Ann. § 610.330(4) (2011).

[74]Id.

[75]Ky. CR 60.01.

[76]502 Ky. Admin. Regs. 30:070(3) (2011).

[77]Ky. CR 60.01.

[78]Ky. CR 60.02.  If the motion is made on grounds (a), (b), or (c), the motion must be made within one year of the date the judgment, order, or proceeding was entered or taken.  Id.

[79]502 Ky. Admin. Regs. 30:070(3)(2011).

[80]502 Ky. Admin. Regs. 30:070(4) (2011).

[81]Id.

[82]502 Ky. Admin. Regs. 30:060(1)(2)(a) (2011).

[83]Ky. Rev. Stat. Ann. § 635.040 (2011).

[84]Ky. Rev. Stat. Ann. § 610.340(1)(a) (2011).

[85]Ky. Rev. Stat. Ann. § 610.330(6) (2011).

[86]See id.

[87]Id.

[88]State of Ky., Kentucky Personnel Cabinet, Overview of the Merit Employment System,at http://personnel.ky.gov/employment/meritsystem.htm(last modified May 27, 2010) (last visited Mar. 9, 2011).

[89]Ky. Rev. Stat. Ann. § 635.040 (2011).

[90]Id.

[91]Ky. Rev. Stat. Ann. § 610.340(1)(a) (2011).

[92]Ky. Rev. Stat. Ann. § 610.320(3) (2011).

[93]Ky. Rev. Stat. Ann. § 610.340(1)(a)(2011).

[94]See supra notes xx and accompanying text.

[95]See Owensboro Public Schools, 2010-2011 Code of Acceptable Behavior and Discipline at 16, available at http://www.owensboro.kyschools.us/discipline_handbook.pdf(last visited Apr. 29, 2011).

[96]Ky. Rev. Stat. Ann. § 158.153(1) (2011).

[97]Ky. Rev. Stat. Ann. § 158.153(1) (2011).

[98]Ky. Rev. Stat. Ann. § 158.153(1) (2011); see also Ky. Rev. Stat. Ann. § 158.150(8) (2011).

[99]Ky. Rev. Stat. Ann. § 158.153(1) (2011).

[100]Ky. Rev. Stat. Ann. § 158.153(3) (2011).

[101]Ky. Rev. Stat. Ann. § 158.150 (2011).

[102]Ky. Rev. Stat. Ann. § 158.150 (5)(2011).

[103]Id.

[104]Ky. Rev. Stat. Ann. § 158.150(6) (2011).

[105]Ky. Rev. Stat. Ann. § 158.150(6) (2011).

[106]Ky. Rev. Stat. Ann. § 158.150(7)(a) (2011).

[107]Ky. Rev. Stat. Ann. § 158.150(7)(b) (2011).

[108]Ky. Rev. Stat. Ann. § 158.150(7)(c) (2011).

[109]Id.

[110]Ky. Rev. Stat. Ann. § 164.001(17) (2011) (Univ. of Kentucky, Univ. of Louisville, Eastern Kentucky Univ., Kentucky State Univ., Morehead State Univ., Murray State Univ., Northern Kentucky Univ., Western Kentucky Univ.).

[111]Northern Kentucky Univ. Salmon P. Chase Coll. of Law,, available at http://chaselaw.nku.edu/(last visited Apr. 29, 2011); Univ. of Kentucky Coll. of Law, available at http://www.law.uky.edu/(last visited Apr. 29, 2011); Univ. of Louisville Louis D. Brandeis School of Law,available at http://www.law.louisville.edu/(last visited Apr. 29, 2011).

[112]Univ. of Kentucky Coll. of Law, Admission Application, available at http://www.law.uky.edu/files/docs/Admissions/UKLaw_app10_Fillable.pdf(last visited Apr. 29, 2011)(“Have you ever been arrested, charged with, or convicted of any crime, or military offense (including any major traffic violations, including driving while intoxicated or impaired, or repeated moving violations or unpaid parking tickets)? If so, give dates and full details on a separate sheet or electronic attachment.”).

[113]Univ. of Louisville School of Med., available at http://louisville.edu/medschool/(last visited Apr. 29, 2011); Univ. of Kentucky Coll. of Med., available at http://www.mc.uky.edu/medicine/(last visited Apr. 29, 2011).

[114]Ass’n of American Med. Colleges, AMCAS Criminal Background Check Service, available at https://www.aamc.org/students/applying/amcas/faqs/63230/faq_background.html(last visited Apr. 29, 2011)(“The Association of American Medical Colleges recommends that all US medical schools procure a national background check on applicants upon their conditional acceptance to medical school.”);Ass’n of American Med. Colleges, Report of the AAMC Criminal Background Check Advisory Committee, May 2006, available at https://www.aamc.org/download/88570/data/cbcfinalreport.pdf(last visited Apr. 29, 2011.

[115]Univ, of Louisville School of Med., Criminal Background Check Policy, available at http://louisville.edu/medschool/admissions/medical-school-admissions-policies/criminal-background-check-policy.html(last visited Apr. 29, 2011)(“The Criminal Background Check will include all convictions and conviction-equivalent adjudications plus all arrests regardless of adjudication (including not guilty, dismissals, etc.) plus all arrests without final adjudication/felonies and misdemeanors.”); Univ. of Kentucky Coll. of Med., Chandler Med. Ctr, Student Criminal Background Check Policy at 2 (revised May 19, 2009), available at http://www.mc.uky.edu/meded/admissions/CBCP.pdf(last visited Apr. 29, 2011)(“UK health professions college/program application materials will include inquiries about criminal convictions and pending adjudications, and a release/consent form that authorizes UK (or its designated agents) to conduct a background investigation on applicants offered a conditional acceptance.  Accepted applicants who refuse to complete these inquiries, do not answer truthfully and completely, or refuse to consent to a criminal background check may not be allowed to enter a UK health professions educational program.”).

[116]See 922 Ky. Admin. Regs. 1:490 (2011).

[117]922 Ky. Admin. Regs. 1:490(3) (2011).

[118]922 Ky. Admin. Regs. 1:490(6)(2)(a)(2011).

[119]24 C.F.R. § 5.854 (a) (2009).

[120]24 C.F.R. §§ 5.854 (a)(1)-(2) (2009).

[121]24 C.F.R. § 5.855 (2009).

[122]24 C.F.R. § 5.855 (2009).

[123]24 C.F.R. § 5.856 (2009).

[124]24 C.F.R. § 5.857 (2009).

[125]24 C.F.R. § 5.858 (2009).

[126]24 C.F.R. § 5.859 (2009).

[127]24 C.F.R. § 5.860 (2009).

[128]Ky. Rev. Stat. Ann. § 186.560 (2011).

[129]Ky. Rev. Stat. Ann. § 186.560(1)(b) (2011).

[130]Ky. Rev. Stat. Ann. § 186.560 (2011).

[131]See id.  (Most of the sections of this statute refer to “convictions” rather than adjudications.).

[132]State of Ky., Dep’t of Military Affairs, available at http://www.dma.ky.gov/(last visited April 29, 2011).

[133]Army National Guard Enlistment Program at 29, available at http://tubberville.com/FY07ECM.pdf(last visited April 17, 2011).

[134]Id.

[135]Id. at 30 (“The process of removing the “initial conviction” or “other adverse disposition” so that under state law the applicant has no record of conviction or adverse adjudication [and] despite the legal effect of this action, it does not change the fact that the applicant committed the offense or criminal act.  Applicants must reveal the underlying facts of the conviction and may ultimately require an enlistment waiver depending on the level of the offense.”).

[136]Ky. Rev. Stat. Ann. § 38.090 (2011).

[137]Army National Guard Enlistment Program at 29, available at http://tubberville.com/FY07ECM.pdf(last visited April 17, 2011).

[138]Id. at 52.

[139]Id. at 80.

[140]Id. at 29.

[141]U.S. Office of Personnel Management, Questionnaire for National Security Positions, Standard Form 86, (Revised July 2008), available at http://www.opm.gov/forms/pdf_fill/sf86.pdf(last visited Apr. 29, 2011).

[142]Army National Guard Enlistment Program at 29, available at http://tubberville.com/FY07ECM.pdf(last visited April 17, 2011).

[143]Id. at 39.

[144]Id.

[145]Id. at 3.

[146]Id. at 30.

[147]U.S. Office of Personnel Management, Questionnaire for National Security Positions, Standard Form 86, (Revised July 2008), available at http://www.opm.gov/forms/pdf_fill/sf86.pdf(last visited April 29, 2011)(“Withholding, misrepresenting, or falsifying information will have an impact on a security clearance, employment prospects, or job status, up to and including denial or revocation of your security clearance, or your removal and debarment from Federal Service.”).

[148]Ky. Rev. Stat. Ann. § 17.500(5) (2011).

[149]Ky. Rev. Stat. Ann. § 610.320(3) (2011).

[150]Ky. Rev. Stat. Ann. § 635.020(2) (2011).

[151]Ky. Rev. Stat. Ann. § 635.510(3) (2011).

[152]Ky. Rev. Stat. Ann. § 635.500 (2) (2011).

[153]Ky. Rev. Stat. Ann. § 635.505 (2011); Ky. Rev. Stat. Ann. § 640.030(5) (2011).

[154]Ky. Rev. Stat. Ann. § 635.515(1) (2011).

[155]Ky. Rev. Stat. Ann. § 635.527 (2011); see also Ky. Rev. Stat. Ann. § 610.340(1) (2011).

[156]Ky. Rev. Stat. Ann. § 635.527 (2011).

[157]Ky. Rev. Stat. Ann. § 532.055(2)(a)(6) (2011); Ky. Rev. Stat. Ann. § 532.025 (2011).

[158]Ky. Rev. Stat. Ann. § 635.020(2) (2011).

[159]Id.

[160]Ky. Rev. Stat. Ann. § 640.030(2)(b)(2011).

[161]Id.

[162]Ky. Rev. Stat. Ann. § 17.510(6) (2011).

[163]Ky. Rev. Stat. Ann. § 17.500(8)(c) (2011). 

Resources/Links

Kentucky Department of Public Advocacy
http://dpa.ky.gov/
Office of the Attorney General
http://www.ag.ky.gov
Kentucky Department of Juvenile Justice
http://djj.ky.gov/
Kentucky Youth Advocates
http://www.kyyouth.org/Issue_Areas/Juvenile_Justice/
National Evaluation and Technical Assistance Center for the Education of Children and Youth Who Are Neglected, Delinquent, or At Risk
http://www.neglected-delinquent.org/nd/States/state.asp?state=KY&stName=Kentucky
The United States Attorney's Office- Western District of Kentucky
http://www.justice.gov/usao/kyw/