Request By:
Mr. Lee Roy Davis, Jr.
Clark County Jailer
P.O. Box 497
Winchester, Kentucky 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on questions relating to the pretrial release system.
Question No. 1:
"Was the Pre-trial Release Program created and established to help persons INCARCERATED in Jail get out without having to pay a Bondsman as with the previous Bail Bonding System?"
KRS 431.510 is designed to prohibit and eliminate the commercial bail bonding business. The Supreme Court of Kentucky, in Stephens v. Bonding Ass'n of Kentucky, Ky., 538 S.W.2d 580 (1976), upheld the legislation as a constitutional exercise of the police power of the state to protect the public from a business deemed to be detrimental to the Commonwealth. The court observed that the old bail system is, at worst, a highly commercialized racket. The court said that "The financial condition of the defendant should not be a determining factor in his relationship to the criminal process. The court went on to say that the professional bondsman held the key to the jail. The defendant who was deemed to be a good risk [who could meet the security terms] got out of jail. On the other hand, the defendant who was considered a bad risk [could not meet the security terms] remained in jail. The courts were relegated to the rather unimportant chore of fixing the amount of bail.
The pretrial release legislation was designed to implement an orderly and equitable system of providing bail in bailable situations, as determined by the trial courts. See KRS 431.510, et seq. , and RCr 4.02.
Question No. 2:
"Are Pre-Trial release officers allowed to interview (or should they interview) a prisoner who is brought to their office who has NOT been taken to Jail to be lodged? If he is allowed to interview a prisoner who has not been taken to Jail to be lodged, under whose authority?"
A "pretrial release" is a release of a defendant from custody before his trial date. RCr 4.00(d). A defendant is a person charged with a crime or violation. "Custody" refers generally to a defendant detained in the custody of a peace officer or the county jailer. See KRS 431.005 and KRS 71.040. We find nothing in the statutes [KRS 431.515 et seq. ] or criminal rules [RCr 4.03 et seq.] that conditions a pretrial release investigation on the fact of defendant's being in jail. In fact the basic policy of the criminal procedural law is that an officer making an arrest must take the defendant before a magistrate without unnecessary delay. RCr 3.02. The principal reason for that is to establish a forum for determining the bail question.
There is nothing to prevent a pretrial release agency from interviewing a defendant under the custody of the arresting officer [and who has never been turned over to the county jailer] . For specific authority, see KRS 431.515 and RCr 4.06. Thus, where requested in that situation, they should interview defendant and make their recommendations to the trial court of Jurisdiction.
Question No. 3:
"Is the Jailer entitled to both the dieting fee and release fee if the following happens: Example - a police officer or deputy sheriff brings a prisoner to Jail and gives the Jailer a commitment slip to lodge the prisoner and leaves the prisoner in the Jailer's charge; the pre-trial release officer is at the Jail and immediately interviews the prisoner; after completing the interview, the pre-trial officer then gives the Jailer a release slip and the prisoner is free to leave. Is the Jailer entitled to both the dieting fee and the release fee?"
The jailer is entitled to the dieting fee of $6.75, pursuant to KRS 64.150, since the statute does not break this down in terms of meals. It [the fee] has historically been calculated on a midnight to midnight basis, regardless of the number of meals furnished or consumed. See OAG 67-272, copy enclosed. In Talbott v. Caudill, 248 Ky. 146, 58 S.W.2d 385 (1933), the court, in dealing with a prototype of KRS 64.150, stressed the concept of a fee for "keeping and dieting. " (Emphasis added). The court, in rejecting the notion that the keeping and dieting fee should be broken down on some proportionate basis, wrote this at page 386:
"It is our opinion that the judgment declaring that a jailer is entitled to 75 cents for keeping [in 47 years that has grown to $6.75] a prisoner each day regardless of whether he remains in jail the whole of the day or a part of a day, or is given any diet, is correct." (Emphasis added).
The court observed that the common law rule is that judicially a day is the whole or any part of the period of twenty-four hours, from midnight to midnight.
The jailer is not entitled to a release fee [we assume you refer to release occasioned by a pretrial release agency investigation]. We have dealt with that problem in OAG 80- 286, copy enclosed. We are not aware of any authority for release of such prisoners by a pretrial release agency, except pursuant to the orders of the trial court of jurisdiction. See RCr 4.06, KRS 71.040 and 71.020. A pretrial release agency is only an arm of the trial court.