Request By:
Honorable J. Bruce Miller
Jefferson County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert W. Hensley, Assistant Attorney General
This is in response to your letter in which you request our opinion as to the validity of a proposal concerning time-off for misdemeanants in the Jefferson County jail. That proposal, attached to your letter to us, is by the Metropolitan Correctional Services Department, Howard C. Kassulke, Executive Director, and is a proposal for consideration by the Jefferson County Fiscal Court. It is as follows:
For consideration of the Fiscal Court;
Be it enacted, a plan to provide time off misdemeanant sentences for behavior of a meritorious nature, during the service of a sentence.
If recommended by an Officer or Aide, the following reduction in sentence can be awarded by the Classification Committee, with approval of the Executive Director, for exemplary conduct and/or achievement while in the custody of the Metropolitan Correctional Services Department.
1. On sentences of 10 to 30 days, up to 10 days.
2. On sentences of 31 to 180 days, up to 12 days per month.
3. On sentences of 181 days and up, up to 15 days per month.
4. Time off is awarded monthly and may be withheld for failure to meet standards of conduct.
We are of the opinion that the proposal should not be enacted by the fiscal court.
First we note that the plan, if adopted by the fiscal court, would permit the Classification Committee, with approval of the Executive Director, to suspend service of the misdemeanant sentence. In effect the misdemeanant will have been paroled by the Classification Committee with approval of the Executive Director. "Parole is simply a conditional suspension of the sentence. "
Wooden v. Goheen, et al, Ky., 255 S.W.2d 1000, at 1002 (1953).
In this context, we note that the granting of parole is generally an executive function. In
Peck v. Conder, Ky., S.W.2d (August 20, 1976) the Kentucky Supreme Court was asked to rule on the legality of KRS 439.177 and KRS 439.179 wherein under the circumstances set out in the statute, a county judge could parole a misdemeanant when the misdemeanant was sentenced by the circuit court. The Kentucky Supreme Court said:
What then happens to the prisoner [that is after he or she has been convicted and has begun to serve the sentence] is entirely in the bailiwick of the executive branch of government. In granting parole the county judge acts in an executive capacity, not a judicial capacity. [Our emphasis]
Secondly, we note that the subject of parole privileges for misdemeanants is covered by KRS 439.177, subsection (1) thereof providing:
Any misdemeanant, sentenced for a period of thirty days or more, may if sentenced by the police court of a city of the first, second or third class, petition the judge of the sentencing court for parole privileges. Any misdemeanant, sentenced by the police court of a city of the fourth, fifth, or sixth class or by any court other than in a city of the first three classes, may petition the county judge of the county in which he is held, for parole privileges.
Also see KRS 439.179.
In this context see KRS 67.083, subsection (1) thereof providing: "The fiscal court of any county is hereby authorized and empowered to exercise all the rights, powers, franchises, and privileges including the power to levy all taxes not in conflict with the Constitution and statutes of this state now or hereafter enacted, which the fiscal court shall deem requisite for the health, education, safety, welfare, and convenience of the inhabitants of the county and for the effective administration of the county government to the same extent as if the general assembly had expressly granted and delegated to the fiscal court all the authority that is within the power of the general assembly to grant to the fiscal court of said counties."
Therefore on this second point, since the Kentucky General Assembly has already legislated on the question of parole for misdemeanants we are of the opinion that if the fiscal court were to pass the above proposed resolution this resolution would be an attempt to change the statutory procedure of KRS 439.177 and KRS 439.179 contrary to KRS 67.083.
Although we are of the opinion that the preceding is dispositive of your question, we would also direct your attention to the fact that we are of the opinion that the phrase "behavior of a meritorious nature" is a phrase legally lacking in clarity and therefore could serve as a possible source of discrimination. It would have been better had the plan established standards - or at least to have required the promulgation of same by a date certain in the future - and required posting of same in the Jefferson County jail.