CHAPTER 96
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CHAPTER 96
( HB 249 )
AN ACT relating to aggravating circumstances.
Be it enacted by the General Assembly of the Commonwealth of Kentucky:
Section 1. KRS 532.025 is amended to read as follows:
(1) (a) Upon conviction of a defendant in cases where the death penalty may be imposed, a hearing shall be
conducted. In such hearing, the judge shall hear additional evidence in extenuation, mitigation, and
aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or
pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas; provided,
however, that only such evidence in aggravation as the state has made known to the defendant prior to
his or her trial shall be admissible. Subject to the Kentucky Rules of Evidence, juvenile court records of
adjudications of guilt of a child for an offense that would be a felony if committed by an adult shall be
admissible in court at any time the child is tried as an adult, or after the child becomes an adult, at any
subsequent criminal trial relating to that same person. Juvenile court records made available pursuant to
this section may be used for impeachment purposes during a criminal trial and may be used during the
sentencing phase of a criminal trial; however, the fact that a juvenile has been adjudicated delinquent of
an offense that would be a felony if the child had been an adult shall not be used in finding the child to
be a persistent felony offender based upon that adjudication. Release of the child's treatment, medical,
mental, or psychological records is prohibited unless presented as evidence in Circuit Court. Release of
any records resulting from the child's prior abuse and neglect under Title IV-E or IV-B of the Federal
Social Security Act is also prohibited. The judge shall also hear argument by the defendant or his or her
counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. The
prosecuting attorney shall open and the defendant shall conclude the argument. In cases in which the
death penalty may be imposed, the judge when sitting without a jury shall follow the additional
procedure provided in subsection (2) of this section. Upon the conclusion of the evidence and
arguments, the judge shall impose the sentence or shall recess the trial for the purpose of taking the
sentence within the limits prescribed by law. If the trial court is reversed on appeal because of error
only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of
punishment;
(b) In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a
verdict of guilty by the jury, the court shall resume the trial and conduct a presentence hearing before
the jury. Such hearing shall be conducted in the same manner as presentence hearings conducted before
the judge as provided in paragraph (a) of this subsection, including the record of any prior criminal
convictions and pleas of guilty or pleas of nolo contendere of the defendant. Upon the conclusion of the
evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire
to determine whether any mitigating or aggravating circumstances, as defined in subsection (2) of this
section, exist and to recommend a sentence for the defendant. Upon the findings of the jury, the judge
shall fix a sentence within the limits prescribed by law.
(2) In all cases of offenses for which the death penalty may be authorized, the judge shall consider, or he or she
shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating
circumstances otherwise authorized by law and any of the following statutory aggravating or mitigating
circumstances which may be supported by the evidence:
(a) Aggravating circumstances:
1. The offense of murder or kidnapping was committed by a person with a prior record of
conviction for a capital offense, or the offense of murder was committed by a person who has a
substantial history of serious assaultive criminal convictions;
2. The offense of murder or kidnapping was committed while the offender was engaged in the
commission of arson in the first degree, robbery in the first degree, burglary in the first degree,
rape in the first degree, or sodomy in the first degree;
3. The offender by his or her act of murder, armed robbery, or kidnapping knowingly created a
great risk of death to more than one (1) person in a public place by means of a weapon of mass ACTS OF THE GENERAL ASSEMBLY 2
destruction, weapon, or other device which would normally be hazardous to the lives of more
than one (1) person;
4. The offender committed the offense of murder for himself, herself, or another, for the purpose of
receiving money or any other thing of monetary value, or for other profit;
5. The offense of murder was committed by a person who was a prisoner and the victim was a
prison employee engaged at the time of the act in the performance of his or her duties;
6. The offender's act or acts of killing were intentional and resulted in multiple deaths;
7. The offender's act of killing was intentional and the victim was a state or local public official or
police officer, sheriff, or deputy sheriff engaged at the time of the act in the lawful performance
of his or her duties;[ and]
8. The offender murdered the victim when an emergency protective order or a domestic violence
order was in effect, or when any other order designed to protect the victim from the offender,
such as an order issued as a condition of a bond, conditional release, probation, parole, or pretrial
diversion, was in effect; and
9. The offender's act of killing was intentional and resulted in the death of a child under twelve
(12) years old.
(b) Mitigating circumstances:
1. The defendant has no significant history of prior criminal activity;
2. The capital offense was committed while the defendant was under the influence of extreme
mental or emotional disturbance even though the influence of extreme mental or emotional
disturbance is not sufficient to constitute a defense to the crime;
3. The victim was a participant in the defendant's criminal conduct or consented to the criminal act;
4. The capital offense was committed under circumstances which the defendant believed to provide
a moral justification or extenuation for his or her conduct even though the circumstances which
the defendant believed to provide a moral justification or extenuation for his or her conduct are
not sufficient to constitute a defense to the crime;
5. The defendant was an accomplice in a capital offense committed by another person and his or
her participation in the capital offense was relatively minor;
6. The defendant acted under duress or under the domination of another person even though the
duress or the domination of another person is not sufficient to constitute a defense to the crime;
7. At the time of the capital offense, the capacity of the defendant to appreciate the criminality of
his or her conduct to the requirements of law was impaired as a result of mental illness or an
intellectual disability or intoxication even though the impairment of the capacity of the defendant
to appreciate the criminality of his or her conduct or to conform the conduct to the requirements
of law is insufficient to constitute a defense to the crime; and
8. The youth of the defendant at the time of the crime.
(3) The instructions as determined by the trial judge to be warranted by the evidence or as required by KRS
532.030(4) shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a
recommendation of death, or imprisonment for life without benefit of probation or parole, or imprisonment for
life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years
of his or her sentence, shall designate in writing, signed by the foreman of the jury, the aggravating
circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases, the judge shall
make such designation. In all cases unless at least one (1) of the statutory aggravating circumstances
enumerated in subsection (2) of this section is so found, the death penalty, or imprisonment for life without
benefit of probation or parole, or the sentence to imprisonment for life without benefit of probation or parole
until the defendant has served a minimum of twenty-five (25) years of his or her sentence, shall not be
imposed.
Section 2. Subsection (2)(a)9. of Section 1 of this Act may be cited as Kimber's Law.
Signed by Governor March 24, 2023. CHAPTER 96
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