Request By:
Mr. David H. Bland
Kentucky Jailers Association
McCowans Ferry Road
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 441.006 states that a fiscal court shall provide for the incarceration of prisoners by: (a) providing and maintaining a jail in the county; or (b) contracting with another county or city for the incarceration and care of its prisoners and providing for the transportation of prisoners, including the provision of vehicles, drivers and guards.
Question No. 1:
"If a county closes its jail, is not the county required to provide at least a driver along with guards if the situation warrants it?"
It is up to the jailer to procure the necessary drivers and guards required to transport prisoners to the jail to be used under the contract. This should be done by closely cooperating with the fiscal court, such that it knows precisely and in detail what is required under that jail plan. The funding of such necessary personnel clearly rests with the fiscal court under KRS 441.006 and 441.008. The latter statute requires the fiscal court by July 1, 1982, and by May 1 of each year thereafter, to adopt an operating budget for the jail, which shall provide for the expenditure of all state, county and other funds for jail operations. Under KRS 441.008(2), the county treasurer shall disburse jail operating funds at the direction of the jailer, provided the expenditures are within authorized budget categories, and shall keep books of accounts of all receipts and disbursements and make such reports as are required by the State Local Finance Officer.
Question No. 2:
"If a person of the opposite sex from the jailer is to be transported, is there a requirement other than good sense that the accompanying officer be of the same sex as the prisoner? "
The general rule as to custodial authority is stated in 72 C.J.S., Prisons, § 18, page 872:
"Ordinarily, a jailer or like prison official is vested with a certain amount of discretion with respect to the safe-keeping, security, and discipline of his prisoners; and his acts, in this respect, should be upheld, if reasonably necessary to effectuate the purpose of imprisonment, so that the courts will not interfere, where it does not appear that he has misused his power for the purpose of oppression."
The Kentucky jailer's general responsibility for prisoners of both sexes is spelled out in KRS 71.040. It provides in part that " He (the jailer) shall treat them (the prisoners) humanely . . . ." (Emphasis added).
The Kentucky General Assembly, taking note of the personal problems engendered in the confinement of females, provided in KRS 71.060(2) that any jailer may appoint " A respectable woman to care for and have supervision over the female prisoners in jail, subject to the orders of the jailer. " (Emphasis added). That policy obviously reflects a sensitivity to the problem of treating women humanely, especially as relates to the personal details of their daily routine.
Our answer to your second question is that the transportation of female prisoners may be accomplished by using male or female deputies or guards, provided the prisoners are treated humanely and within the bounds of human decency and good sense, which is commonly understood.
See KRS 208.260 (repealed as of July 1, 1982), requiring girls transported to any institution be accompanied by a female attendant or relative. KRS 208.260 was repealed in 1980 Acts (Ch. 280, Section 152), effective July 1, 1982, in order to accommodate a new juvenile code. In the 1982 Acts (Ch. 284, Section 1) the effective date of the new juvenile code was changed to July 15, 1984. In the 1982 Acts (Ch. 445, Section 43), the prior repealer of KRS 208.260 was repealed. Thus KRS 208.260 has an effective life until July 15, 1984.