Request By:
Mr. Richard Vaughn
Boyd County Jailer
Box 455
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on the following question:
"Do I as a Jailer have the right to refuse to allow prisoners a work release even though ordered by a District or Circuit Judge who with out my even being asked if said prisoner in my opinion is a security risk? "
Your basic responsibility is described in KRS 71.040:
"The jailer shall receive and keep in the jail all persons who are lawfully committed thereto, until they are lawfully discharged. He shall treat them humanely and furnish them with proper food and lodging during their confinement. He shall deliver those who die in jail to their friends, if requested, or have them decently buried at the expense of the county."
You are generally the custodian of the prisoners ordered to be confined in the county jail. You cannot release them until the court of jurisdiction orders their release or discharge.
Under KRS 439.179, any person sentenced to jail for a misdemeanor, nonpayment of a fine or forfeiture, or contempt of court, may be granted the privilege of leaving the jail during necessary and reasonable hours for any of certain enumerated purposes, including seeking employment, working at employment, etc. The prisoner may petition the sentencing court for such work release privilege at the time of sentence or thereafter, and, in the discretion of the sentencing court, may renew his petition. The sentencing court may withdraw the privilege at any time by order entered with or without notice.
The answer to your question is that the work release of such prisoner is in the discretion of the sentencing court, pursuant to KRS 439.179. You will have to obey his orders in that regard, except that under KRS 439.179(9) you may refuse to permit the prisoner to exercise his privilege to leave the jail, under a work or other release [as provided in KRS 439.179(1)] order, for any breach of discipline or other violation of jail regulations for a period not exceeding five (5) days. Where you apply subsection (9) of the statute [where you do not let the prisoner out for up to 5 days], you should, before you detain further the prisoner, appear before the sentencing court and explain to him what you are doing and why. Since subsection (9) of the statute is an exception to the authority of the sentencing court, the exception would be construed strictly.
Hargett v. Kentucky State Fair Board, 309 Ky. 132, 216 S.W.2d 912 (1949) 917. Thus in order for you to detain a prisoner ordered to be released under KRS 439.179, you must be prepared to show that the prisoner committed a breach of jail discipline or other violation of jail regulations.
As for your suspicions in a particular case that the prisoner is a security risk, you should ask the sentencing court to let you appear before him in order that you can relate to the court the reasons for your belief that the prisoner is a security risk. In this manner, the court will have the benefit of your testimony on the question as to whether the court should grant a release under the statute. Thus if you have a good reason to believe that the prisoner, once released, will not come back to jail voluntarily, the sentencing court should be apprised of this reasoning in making his determination of the work release.