Request By:
Mr. Frank H. McCartney
Fleming County Attorney
Courthouse
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether or not a juvenile, age 17 years and 11 months, may be housed in the county jail where he is convicted of a traffic offense and sentenced to 90 days in the county jail. We assume a moving motor vehicle offense was involved.
Specifically, you ask whether or not he can be housed with adult prisoners.
First, under the explicit provisions of KRS 208.020(1)(a), a juvenile [under 18 but who is at least 16 or older] who commits a moving motor vehicle offense is not under the jurisdiction of the juvenile session of the district court. The statute plainly provides that "The court [juvenile session, district court] shall not have jurisdiction in any prosecution of a moving motor vehicle offense involving a child sixteen (16) years of age or older. Juvenile offenders sixteen (16) years of age or older accused of moving motor vehicle offenses shall be treated as any adult offender . . . ." (Emphasis added). The court wrote in Lowry v. Commonwealth, Ky., 424 S.W.2d 841 (1968) 843, that "The exception in KRS 208.020(1)(a), which provides that a child sixteen years of age or older who commits a moving motor vehicle offense shall not be tried in juvenile court but shall be tried as any adult offender, is a further indication of a legislative intent to limit the exclusive jurisdiction of the juvenile court."
Thus the district court properly tried the juvenile in question as an adult offender. The question now is: Can this defendant labeled as an "adult offender" for purposes of trial procedure, be placed under his 90 day sentence with actual adult offenders [18 or older] ? The companion question is whether or not the juvenile of 16 or older who is convicted of a moving motor vehicle offense continues to wear the legal label "adult offender" for the subsequent purpose of his confinement under a jail sentence?
KRS 208.120 prohibits the detention of juveniles "under 16" in a county jail, except where the court believes his conduct or condition is such as to endanger his own safety or welfare or that of others, and under the exception the juvenile's room or ward in the jail must be entirely separate from the adult prisoners. (Emphasis added). However, that statute has no application to the instant situation, since the defendant was over 17. KRS 208.130 deals with permanent detention facilities for juveniles. We concluded in OAG 74-752, copy enclosed, that the "separateness" concept for juveniles mentioned in KRS 208.120 [temporary detention] must be similarly observed in connection with KRS 208.130 [permanent detention] . But in answer to your second question, the "separateness" provision of a detention facility under KRS 208.120 or 208.130 has no application to this prisoner, since the prisoner is over 17 and is not under the jurisdiction of the juvenile court.
Notwithstanding the nonapplication of KRS 208.120 and 208.130 to this situation, there are constitutional rights problems which may arise out of the nature and condition of the incarceration of juveniles fitting the instant category. With that in mind, and mindful of our responsibility to point out areas of constitutional problems with which the county jailer and the fiscal court, in making rules concerning the internal management of the jail, may be confronted, we shall discuss the constitutional implications which may arise out of housing such juveniles with adult prisoners.
The case of State Ex Rel. du Pont v. Ingram, Del. Super., 294 A.2d 839 (1971), involved a Delaware state correctional statute, which provided that "appropriate, separate custodial care and work and training facilities shall be provided for youthful offenders. . . . ." In the companion case of du Pont v. Ingram, Del. Super., 293 A.2d 289 (1972), the plaintiffs had claimed that the resultant exposure of youthful offenders to homosexual abuses, when incarcerated with older, hardened criminals, amounts to cruel and unusual punishment in violation of the plaintiffs' constitutional rights under the Federal Eighth Amendment. The court, in rejecting the argument, wrote that the argument amounts to the contention that the incarceration of younger and older offenders together amounts to unconstitutional cruel and unusual punishment, per se. The court said they referred to no authority for that proposition.
The prohibition against cruel and unusual punishment as contained in the Eighth Amendment (U.S. Const.) [see Sec. 17, Ky. Const.], applicable to the state through the due process clause of the Fourteenth Amendment, is not limited to specific acts directed at selected individuals, but is equally pertinent to general conditions of confinement that may prevail at a prison. Gates v. Collier (U.S.C.A. -5, 1974) 501 F.2d 1291, 1300, 1301. In other words, the Eighth Amendment imposes responsibility upon jail administrators, as well as the judiciary and legislature. Berch v. Stahl (U.S. D.C. W.D. N.C., 1974) 373 F.Supp. 412, 419, 420.
The court, in Sweet v. South Carolina Dept. of Corrections (U.S.C.A. -4, 1975) 529 F.2d 854, 859, observed that "Subject to the legitimate requirements of prison discipline and security, he [prisoner] retains his constitutional rights to due process, to equal protection and to protection against 'cruel and unusual punishment' , as guaranteed by the Eighth Amendment - rights which are binding on the states." Elsewhere the court said: "Courts are accordingly limited in their exercise of power in this area to deprivations which represent constitutional abuses and they cannot prohibit a given condition or treatment in prison management unless it reaches the level of an unconstitutional deprivation. It has well been said that 'courts encounter numerous cases in which the acts or conditions under attack are clearly undesirable and are condemned by penologists, but the courts are powerless to act because the practices are not so abusive as to violate a constitutional right.' Note, Decency and Fairness: An Emerging Judicial Role in Prison Reform, 72 Va. L.Rev. 841, 843 (1971)." However, the courts recognize that standards of decency in treatment of prisoners is not fixed, for Trop v. Dulles, 356 U.S. 86, 100-101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1958) held that the amendment (Eighth) "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
The Eighth Amendment is not limited to punishment of the body, as such; its protection extends to the whole person as a human being, as an integrated personality. Laaman v. Helgemoe (U.S. D.C. N.H., 1977) 437 F. Supp. 269, 307.
Federal courts have held that while occasional, isolated attacks among prisoners do not amount to cruel and unusual punishment, a prisoner has a right, through the Eighth and Fourteenth Amendments, to receive reasonable protection from harm by other inmates. Both actual assault and constant fear of assault are undue burdens to place upon a prisoner. Withers v. Levine (U.S.D. Ct., Md., 1978) 449 F.Supp. 473, 476.
Eighth Amendment cases arise within the frame of a civil rights action, pursuant to 42 U.S.C. Section 1983 [deprivation of constitutional or statutory rights, etc.], against prison administrators. Owens-El. v. Robinson (U.S.D.Ct., Pa. - 1978) 442 F. Supp. 1368, 1372.
CONCLUSIONS
We make the following conclusions:
(1) A juvenile of over 17, but under 18, may be housed with adult prisoners where he is sentenced to confinement in the county jail for a moving motor vehicle offense. The "separation from adults" policy of KRS 208.120 and 208.130 does not apply.
(2) The mere housing of juvenile prisoners with adult prisoners does not violate the Eighth Amendment per se.
(3) Jail administrators, including the county jailer and fiscal court, have a responsibility to avoid a constitutional deprivation of rights under the Eighth Amendment. See KRS 71.040 and 441.010.
(4) In considering the rights of prisoners under the Eighth Amendment (due process, equal protection, and protection against cruel and unusual punishment) the standards of decency of a maturing society will be kept in mind by the courts in trying Eighth Amendment cases.
(5) The Eighth Amendment does not stop at proscribing punishment of the body, but extends as well to punishment of the whole person.
(6) Prisoners are entitled to reasonable protection against attack and fear of attack by other prisoners.