Request By:
Mr. Jim Early
Attorney at Law
115 Cheapside Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
From your letter it appears that you have assisted a client of yours in requesting a transfer to a minimum security facility. He is serving a sentence, in part, for escape from jail (Mercer County Jail) on September 20, 1978. You told us that he escaped from the county jail while awaiting trial on a felony charge.
The Bureau of Corrections informed you that the escape of your client from county jail prevents his transfer to a minimum security facility, pursuant to KRS 197.140.
KRS 197.140 reads:
"No prisoner who is serving a sentence for rape, attempted rape, or who has escaped or attempted to escape from an adult correctional institution within the past (5) years, or who has been convicted of armed robbery or armed assault with intent to rob where any injury has been inflicted upon any other person during the commission of the offense, shall be worked or released for work outside of the walls of the prison. No prisoner who has been sentenced to life imprisonment shall be worked or released for work outside of the walls of the prison until he has actually served within the walls of the prison for at least one (1) year of his sentence. "
Your question:
"Does the phrase 'adult correctional institution' in KRS 197.140 include a county jail? "
Unfortunately the term "adult correctional institution" is not defined in KRS 197.010 nor anywhere else in KRS Chapter 197. The term "penitentiary" is defined in KRS 197.010 and 446.010(25). Thus we turn to the legislative history of the statute for possible enlightenment.
KRS 197.140 (codified in 1942 and bringing forward in part Kentucky Statute § 3828b-10) read as follows:
"No prisoner who has been sentenced for rape, attempted rape, detaining a woman against her will, or who has escaped or attempted to escape, or who has been convicted and sentenced more than twice, or who has been convicted of highway robbery or bank robbery, shall be worked or released for work outside of the walls of the prison. No prisoner who has been sentenced to life imprisonment shall be worked or released for work outside of the walls of the prison until he has actually served within the walls of the prison five years of his sentence. "
It is clear from reading K.S. § 3828b-10, enacted in 1936 (c. 17, § 1), that the provision about a prisoner's working on the outside of the prison related exclusively to Kentucky state prisons or penitentiaries. That 1936 statute provided explicitly concerning "prisoners now or hereafter confined in the state prisons. " The 1936 statute was listed under Article III, "working of prisoners" , in Chapter 97, "Penitentiaries" , as published in Baldwin's Kentucky Statutes, 1936. Judge Robert Cullen, the Statutory Reviser in 1942, carried forward a part of K.S. § 3828b-10 and codified it as KRS 197.140. Obviously the part of § 3828b-10 retained in KRS 197.140 refers contextually to state prisoners.
KRS 197.140, as amended in 1948 (c. 120), read:
"No prisoner who has been sentenced for rape, attempted rape, detaining a woman against her will, or who has escaped or attempted to escape, or who has been convicted and sentenced more than twice, or who has been convicted of highway robbery or bank robbery, shall be worked or released for work outside of the walls of the prison. No prisoner who has been sentenced to life imprisonment shall be worked or released for work outside the walls of the prison until he has actually served within the walls of the prison for at least one year of his sentence. "
It is clear from reading the 1948 amendment that the entire context suggests that only state prisons or penitentiaries are involved. Note that the 1942 and 1948 versions of the statute mention "a prisoner who has escaped or attempted to escape." They do not describe the place from which the prisoner escapes. The strong implication is that the state prisoner has escaped or attempted to escape from a state prison. No other prison is suggested.
In 1964, H.B. 368 (c. 166) amended KRS 197.140. The bill, as published in the 1964 Acts, read:
"AN ACT relating to employment of prisoners outside the walls of the institution.
"Be it enacted by the General Assembly of the Commonwealth of Kentucky:
"Section 197.140 of the Kentucky Revised Statutes is amended to read as follows:
"No prisoner who [has been sentenced for] is serving a sentence for rape, attempted rape, detaining a woman against her will, or who has escaped or attempted to escape from an adult correctional institution within the past five years, [or who has been convicted and sentenced more than twice] , [or who has been convicted of highway robbery or bank robbery] , or who has been convicted of armed robbery or armed assault with intent to rob where any injury has been inflicted upon any other person during the commission of the offense, shall be worked or released for work outside of the walls of the prison. No prisoner who has been sentenced to life imprisonment shall be worked or released for work outside of the walls of the prison until he has actually served within the walls of the prison for at least one year of his sentence. "
The 1964 amendment just cited contains the genesis of the phrase "to escape from an adult correctional institution. " (Emphasis added). The title of the bill says: "AN ACT relating to employment of prisoners outside of the walls of the institution. " (Emphasis added). However, another 1964 bill (c. 165) amended KRS 197.010 (definitions for chapter 197), but it only defines "penitentiaries" and "Department" (as meaning Department of Corrections). Actually in 1962 (c. 106, Art. X. § 9), KRS 197.020 was amended to define "Department" as the "Department of Corrections."
Thus when KRS 197.140 was amended in 1964 to include the phrase "escape from an adult correctional institution" , the Department of Corrections had already come into existence. The 1974 amendment to KRS 197.140 (c. 386, § 34) merely deleted the phrase "detaining a woman against her will."
When we consider the history of the statute, the fact that the context relates to a state prison, that the statute is in the chapter labelled "penitentiaries" , and the fact that there is no definitional statute providing otherwise, it is our opinion that the phrase "escape from an adult correctional institution" refers to a prison or institution of the Pureau of Corrections. This is consistent with the fact that the "Department of Corrections" was created some two years prior to the 1964 amendment of KRS 197.140, which amendment created the expression "adult correctional institution. "
Our construction is framed around the general scheme and purpose of the statute, which scheme and purpose relate to state prisons or penal institutions. Department of Revenue v. Miller, 303 Ky. 822, 199 S.W.2d 622 (1947).
Also see Wagner v. Holmes, (U.S. D. Ct. E.D. Ky., 1973) 361 F.Supp. 895, in which the court interprets the statute in the frame of state prisons only.
We thus conclude that KRS 197.140, relating to an escape, does not embrace or include an escape from a county jail.