Request By:
Mr. Frank H. McCartney
Attorney at Law
207 Court Square
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office involving the following factual information:
"The Fleming County Fiscal Court is considering the possibility of adopting rules and regulations stating the specific hours in which the Fleming County Jail is to be available for pre-trial officers and for the bonding out of individuals. It is the suggestion from the jailer that the times be limited to, between 7 a.m. until 11 p.m., and that from 11 p.m. until 7 a.m. that the jail not be open to pre-trial for investigation as to determination as to bail and as to the trial commissioner for bail. In other words, an individual that would be picked up would have to be housed for at least eight (8) hours, if he was picked up at night, before he could make bail.
"Please review these possibilities and give me your opinion as to whether or not under KRS 67.080 if they can adopt anything that would set out those particular limitations."
Section 16 of the Kentucky Constitution provides that all "prisoners" shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Bail has been historically for the release from custody of a person charged with a crime. The old Court of Appeals, in Baker v. Smith, Ky., 477 S.W.2d 149 (1972) 151, defined the word "prisoners" , as it appears in § 16 of the Constitution, as meaning persons held in custody pending trial on a charge of crime.
Under RCr 4.02(2), all defendants charged with bailable offenses shall be considered for pre-trial release without making formal application except when a capital offense is charged. KRS 431.520 provides in part that "any person charged with an offense shall be ordered released by a court of competent jurisdiction pending trial on his personal recognizance or upon the execution of an unsecured bail bond in an amount set by the court or as fixed by the Supreme Court as provided in KRS 431.540, unless the court determines, in the exercise of its discretion, that such a release will not reasonably assure the presence of the person as required." All trial courts, under KRS 431.515(1), having jurisdiction of criminal causes are required to provide such pretrial release investigation and services as necessary to effectuate the purposes of KRS 431.510 to 431.550 [bail bonds].
A review of the bail bond provisions of RCr 4.00 to 4.58 and KRS 431.510 to 431.550, reflects the legislative policy that if pretrial release is to be effected at all, it should be done quickly. The underlying American and Kentucky doctrine is that a defendant in a criminal action is presumed innocent of any charge until convicted. "The allowance of bail pending trial honors the presumption of innocence and allows a defendant freedom to assist in the preparation of his defense. The objective of bail is to allow this freedom pending trial and yet guarantee that the defendant will be available for any proceeding necessary to the disposition of the charge." Long v. Hamilton, Ky., 467 S.W.2d 139 (1971) 141.
The overriding consideration here is that the courts are vested with great discretion respecting bail. Abraham v. Com., Ky., App., 565 S.W.2d 152 (1977) 158.
It is our opinion that, in considering the courts' function of determining the application of the constitutional right to bail, in each case, and the plainly evidenced legislative policy that the determination of bail in each case be made quickly, a fiscal court has no authority to make orders, the practical effect of which would be to curtail the courts' determination of bail during certain hours. The practical effect of such an exclusion of bail officers for the stated period would mean that bailable prisoners would be held in jail, arbitrarily, without bail from 11 p.m. to 7 a.m., the next morning. See § 2, Kentucky Constitution, prohibiting arbitrary action; and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963), in which the court wrote that § 2 expresses a concept broad enough to embrace both due process and equal protection of the law, both fundamental fairness and impartiality. See also KRS 304, 34-150.
The fiscal court may prescribe rules for the internal management of the jail, pursuant to KRS 441.010. However, that legislation was not designed to interfere with the courts' determination of bail under the Constitution. See Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933).