Request By:
Edwin P. Abell, Esq.
Prosecuting Attorney
City of Campbellsville
Police Department
Campbellsville, Kentucky 42718
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the amount of credit to be allowed to prisoners for jail time. Campbellsville had been allowing the sum of $1.00 per day as credit to prisoners convicted in police court and in jail because of failure to pay the fines imposed against them. You refer to RCr 4.58, pertaining to credit for incarceration, which states in part that any person incarcerated on a bailable offense who does not supply bail should be allowed a credit of $5.00 for each day incarcerated prior to conviction. You state that the rules contain no provision concerning credit to be allowed after conviction. Your specific question is:
"How much per diem credit must be allowed to prisoners incarcerated by the police court of a third class city after conviction."
As a result of decisions of the United States Supreme Court and the Kentucky Court of Appeals (now the Kentucky Supreme Court) an indigent cannot be committed to jail for failure to make immediate payment of a fine assessed against him in judgment for an offense against the criminal law. The states are prohibited from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine. See Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970); and Spurlock v. Noe, Ky., 467 S.W.2d 320 (1971). In OAG 73-111, copy enclosed, we said in part as follows:
". . . [W]e believe that the Spurlock ruling requires that a court which is imposing a fine on an indigent defendant must take into account the defendant's inability to make immediate payment and must devise some reasonable alternative method of payment, e.g., the 'installment' method, which the defendant may choose in order to satisfy the fine and avoid imprisonment . . . ."
The 1976 Regular Session of the Kentucky General Assembly enacted KRS 532.005, effective June 19, 1976, which provides that, "KRS Chapters 532, 533 and 534 apply to all classes of crimes committed outside the provisions of the penal code. " KRS Chapter 534 concerns "Fines" and it represents an attempt to handle those situations involving fines levied against indigents within the context of the federal and state cases cited above. Prior to June 19, 1976, KRS Chapter 534 would have been directly applicable only to those offenses coming within the confines of the Kentucky Penal Code and would have excluded those offenses outside the scope of the Penal Code. No doubt many of the cases before the police court involve traffic offenses and in regard to the applicability of KRS Chapter 534 to those infractions see OAG 77-66, where we said in part as follows:
". . . Literally construed 'crimes' does not include traffic infractions. Nevertheless, although the Kentucky Penal Code specifically excludes traffic infractions from its application, we feel as if the procedures established by KRS 534.060 contain constitutional safeguards required by Tate and Spurlock, supra, and that these procedures may be properly adopted by a court as a model in attempting to insure the payment of fines for traffic violations. . . ."
KRS 534.020 deals with the methods of imposing fines and KRS 534.060 provides the methods by which a court must respond to nonpayment of fines. If, after the fine is set and the method of payment is established by the court (KRS 534.020), nonpayment occurs, then a show cause order is issued against the defendant. If the defendant can establish that his nonpayment was unintentional and excusable, the court has various alternatives as set forth in KRS 534.060(3). Where nonpayment of the fine is intentional and inexcusable the court can impose jail time for nonpayment. The jail time, however, is not determined by fixed dollars per day, as under former law, but is related to the kind of offense a defendant has committed. See KRS 534.060(2)(a), (b), (c).
Therefore, in conclusion, an indigent cannot be committed to jail solely for failure to make immediate payment of a fine assessed against him for an offense against the criminal law. An indigent must be offered a "reasonable alternative" to immediate payment, such as an installment method of payment, in order to satisfy the fine and avoid imprisonment. If the defendant violates the terms of the payment provisions established by the court and he cannot show that nonpayment was unintentional and excusable, the court can then impose jail time for nonpayment. KRS Chapter 534 applies to all classes of crimes committed within and outside the provisions of the Kentucky Penal Code and also may be utilized in situations involving traffic infractions. Jail time imposed for failure to make the required payments is not determined by fixed dollars per day but is related to the kind of offense a defendant has committed as set forth in KRS 534.060(2). Other opinions which may be of interest to you include OAG's 76-749 and 76-400, copies enclosed.