16 RS BR 991

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AN ACT relating to the establishment of the External Detainee Fatality Review

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Panel.

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Be it enacted by the General Assembly of the Commonwealth of Kentucky:
SECTION 1.

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READ AS FOLLOWS:

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(1)

A NEW SECTION OF KRS CHAPTER 441 IS CREATED TO

The External Detainee Fatality Review Panel is hereby created and established

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for the purpose of conducting comprehensive reviews of all fatalities of

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individuals who were detained in county or regional jails, any facility operated by

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the Department of Corrections, any facility operated by the Department of

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Juvenile Justice, or any facility operated by a private entity contracted with either

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the Department of Corrections or the Department of Juvenile Justice at the time

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of death or at the time medical assistance was sought for a condition that led to

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the individual’s death. The External Detainee Fatality Review Panel shall be

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attached to the Justice and Public Safety Cabinet for staff and administrative

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purposes, but shall operate as an independent investigative entity designed to

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promote carceral safety throughout the Commonwealth.

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(2)

The External Detainee Fatality Review Panel shall be composed of:
(a)

The following thirteen (13) ex officio nonvoting members:
1.

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The chairperson of the House Judiciary Committee of the Kentucky
General Assembly;

2.

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The chairperson of the Senate Judiciary Committee of the Kentucky
General Assembly;

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3.

The Attorney General or designee;

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4.

The secretary of the Justice and Public Safety Cabinet or designee;

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5.

The commissioner of the Department for Corrections;

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6.

The Public Advocate of the Department of Public Advocacy or

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designee;
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7.

The State Medical Examiner or designee;

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8.

A representative from Kentucky Jailers’ Association;

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9.

A representative from the Kentucky Association of Counties;

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10.

A representative from the Kentucky County Attorneys’ Association;

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11.

A representative from the Kentucky Commonwealth's Attorneys

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Association;

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12.

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A representative from the Kentucky County Judge/Executive
Association;

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13.

A retired peace officer who possesses experience investigating detainee

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deaths that occurred while in state or local custody appointed by the

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commissioner of the Department of Kentucky State Police; and

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(b)

The following seven (7) voting members:

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1.

Two (2) retired judges appointed by the Governor who may be

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chosen from a list of six (6) possible candidates supplied by the

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Chief Justice of the Supreme Court of Kentucky;

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2.

Two board-certified pathologists appointed by the Governor;

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3.

A qualified mental health care professional as defined in KRS

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202A.011 who shall be appointed by the Attorney General;

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4.

A citizen of the Commonwealth who shall be appointed by the

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Governor who may be chosen from a list of three (3) possible

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candidates supplied by the President of the Kentucky Senate; and

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5.

A citizen of the Commonwealth who shall be appointed by the

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Governor who may be chosen from a list of three (3) possible

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candidates supplied by the Speaker of the Kentucky House of

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Representatives.

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(3)

The seven (7) voting members appointed under subsection (2)(b) of this section
shall vote to elect a chairperson who shall be chosen from among the voting
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members. The voting member chosen as chairperson shall serve as chairperson

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for the entirety of his or her term.

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(4)

(a)

By August 1, 2016, the appointing authorities shall have appointed panel

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members. Initial terms of members, other than those serving ex officio,

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shall be staggered to provide continuity. Initial appointments shall be: two

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(2) members for terms of one (1) year, two (2) members for terms of two (2)

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years, and three (3) members for terms of three (3) years, these terms to

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expire, in each instance, on June 30 and thereafter until a successor is

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appointed and accepts appointment.

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(b)

Upon the expiration of the initial staggered terms, successors shall be

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appointed by the respective appointing authorities for terms of two (2) years,

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and until successors are appointed and accept their appointments. Members

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shall be eligible for reappointment. Vacancies in the membership of the

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panel shall be filled in the same manner as the original appointments.

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(c)

At any time, a panel member shall recuse himself or herself from the review

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of a case if the panel member believes he or she has a personal or private

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conflict of interest.

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(d)

If a voting panel member is absent from two (2) or more consecutive,

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regularly scheduled meetings, the member shall be considered to have

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resigned and shall be replaced with a new member in the same manner as

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the original appointment.

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(e)

If a voting panel member is proven to have violated subsection (14) of this

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section, the member shall be removed from the panel and replaced with a

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new member in the same manner as the original appointment.

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(5)

The panel shall meet at least quarterly unless a detainee fatality has not occurred

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within the two (2) quarters prior to the current quarter. The panel may meet upon

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the call of the chairperson of the panel.
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(6)

Members of the panel shall receive no compensation for their duties related to the

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panel, but may be reimbursed for expenses incurred in accordance with state

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guidelines and administrative regulations.

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(7)

Each panel member shall be provided copies of all information set out in this

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subsection, including but not limited to records and information, upon request, to

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be gathered, unredacted, and submitted to the panel within thirty (30) days by the

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county or regional jail, the Office of the Kentucky State Medical Examiner, the

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Department of Corrections, the Department of Juvenile Justice, or any agency,

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organization, or entity involved with providing services or investigating incidents

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pertaining to deceased detainees:

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(a)

County or regional jail, Department of Corrections, or Department of

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Juvenile Justice records and documentation regarding the deceased

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detainee at the time of booking, during detention, at the time of the incident

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leading to the fatality, and subsequent to the incident, including all records

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and documentation set out in this paragraph:

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1.

All actions taken by the county jail or regional detention center,

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Department of Corrections, or Department of Juvenile Justice on

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behalf of or regarding the deceased detainee during booking;

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2.

Any and all records of services to the detainee provided by county jail

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or regional detention center, Department of Corrections, or

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Department of Juvenile Justice staff, or any agencies or individuals

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contracted to provide services by the county or regional jail,

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Department of Corrections, or Department of Juvenile Justice;

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3.

All documentation relating to any investigation of the fatality,

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including all extraordinary occurrence reports relating to the

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detainee; and

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4.

All documentation of actions taken as a result of the detainee fatality;
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(b)

Reports from the Cabinet for Health and Family Services, Office of

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Inspector General, if an incident occurred due to actions of a licensed

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healthcare provider while providing services in a county jail or regional

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detention center, state prison, or youth development center;

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(c)

the deceased detainee’s history of arrests and convictions;

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All available records from the Administrative Office of the Courts regarding

(d)

All available records from the Department of Kentucky State Police
regarding the deceased detainee’s history of arrests;

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(e)

Autopsy reports;

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(f)

Emergency medical service, fire department, law enforcement, coroner, and

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other first responder reports regarding the deceased detainee, including but

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not limited to photos and interviews with witnesses; and

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(g)

Records of medical and behavioral health services provided to the deceased

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detainee during detention in the county jail or regional detention center,

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including but not limited to all records and documentation set out in this

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paragraph:

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1.

Primary care records, including progress notes; assessment of

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behavioral health problems; assessment of detainee suicidal thinking

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or attempts, to be completed by the county jail, regional detention

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center, or by a statewide suicide prevention program; descriptions of

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all medical or behavioral health services provided to the deceased

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detainee during the detention episode at issue and all previous

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detention episodes of the deceased detainee;

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2.

Notes and records of all law enforcement officers who detained or had

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physical contact with the deceased detainee relating to the

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incarceration during which the fatality occurred prior to the booking

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of the detainee in the county or regional jail;
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3.

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Hospitalization and emergency department records regarding the
deceased detainee and actions subsequent to the fatality;

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4.

Dental records;

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5.

Specialist records; and

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All photographs of injuries of the deceased detainee that are available.

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(8)

The panel may seek the advice of experts, such as persons specializing in the

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fields of psychiatric and forensic medicine, nursing, psychology, social work,

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education, law enforcement, family law, or other related fields, if the facts of a

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case warrant additional expertise.

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(9)

The panel shall post updates after each meeting to the Web site of the Justice and
Public Safety Cabinet regarding case reviews, findings, and recommendations.

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(10) The panel chairperson or other requested persons shall report a summary of the

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panel's discussions and proposed or actual recommendations to the Interim Joint

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Committees on Judiciary, and on State Government monthly or at the request of

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a committee co-chair. The goal of each committee shall be to ensure impartiality

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regarding the operations of the panel during its review process.

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(11) The panel shall publish an annual report by December 1 of each year consisting

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of case reviews, findings, and recommendations for system and process

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improvements to help prevent detainee fatalities. The report shall be submitted to

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the Governor, the secretary of the Justice and Public Safety Cabinet, the Chief

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Justice of the Supreme Court, the Attorney General, and the director of the

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Legislative Research Commission for distribution to the appropriate committees.

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(12) (a)

Information and record copies that are confidential under state or federal

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law and are provided to the External Detainee Fatality Review Panel by the

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Justice and Public Safety Cabinet, the Department for Corrections, county

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jails or regional detention centers, or any agency, organization, or entity for

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review shall not become the information and records of the panel and shall
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not lose their confidentiality by virtue of the panel’s access to the

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information and records.

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(b)

The original information and records used to generate information and

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record copies provided to the panel in accordance with subsection (7) of this

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section, shall be maintained by the appropriate agency in accordance with

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state and federal law and shall be subject to the Kentucky Open Records

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Act, KRS 61.870 to 61.884. All open records requests shall be made to the

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appropriate agency and not to the External Detainee Fatality Review Panel

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or any of the panel members.

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(c)

Information and record copies provided to the panel for review shall be

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exempt from the Kentucky Open Records Act, KRS 61.870 to 61.884. At the

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conclusion of the panel’s examination, all copies of information and

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records provided to the panel involving an individual case shall be destroyed

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by the Justice and Public Safety Cabinet.

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(13) Notwithstanding any provision of law to the contrary, the portions of the External

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Detainee Fatality Review Panel meetings during which an individual detainee

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fatality case is reviewed or discussed by panel members may be a closed session,

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subject to KRS 61.815(1), and may only occur following the conclusion of an

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open session. At the conclusion of the closed session, the panel shall immediately

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convene an open session and give a summary of what occurred during the closed

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session.

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(14) Each member of the External Detainee Fatality Review Panel, any person

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attending a closed panel session, and any person presenting information or

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records on an individual detainee fatality shall not release information or records

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not available under the Kentucky Open Records Act, KRS 61.870 to 61.884, to the

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public.

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(15) A member of the External Detainee Fatality Review Panel shall not be prohibited
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from making a good-faith report to any state or federal agency of any

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information or issue that the panel member believes should be reported or

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disclosed in an effort to facilitate effectiveness and transparency in Kentucky’s

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detainee protective services.

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(16) A member of the External Detainee Fatality Review Panel shall not be held liable

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for any civil damages or criminal penalties as a result of any action taken or

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omitted in the performance of the member’s duties pursuant to this section,

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except for violations of subsection (12), (13), or (14) of this section.

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(17) Beginning in 2017, the Legislative Program Review and Investigations

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Committee of the Kentucky General Assembly shall conduct an annual

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evaluation of the External Detainee Fatality Review Panel established pursuant

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to this section to monitor the operations, procedures, and recommendations of the

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panel and shall report its findings to the General Assembly.

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