Request By:
Mr. David H. Bland
Executive Director
Kentucky Jailers Association
Route #2, McCowans Ferry Road
Versailles, Kentucky 40383
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 82-618, we addressed the question of the circuit court's granting of parole to a misdemeanant sentenced to a jail term in his court. The present KRS 439.177(1) provides that "Any misdemeanant may petition the sentencing court for parole privileges." In that opinion we referenced OAG 78-150, in which opinion we cited Peck v. Conder, Ky., 540 S.W.2d 10 (1976) 12, as being dispositive of the question as to whether or not a judge of the court has the constitutional power to parole. Peck v. Conder held that when a person has been convicted of a crime and has begun to serve his sentence, the function and authority of the trial court is finished. Thus parole, where provided by statute, becomes strictly an executive, not judicial matter. The court, in approving of the then county judge's role in granting parole, held that the county judge in granting parole acts in an executive capacity, not a judicial capacity.
You write that based upon the county judge executive's executive function, some county judge executives are granting parole to certain misdemeanant prisoners being held in their county jails. You observe that is certainly one means of providing some safeguard against overcrowding a jail.
Your question is as follows:
"Is the granting of parole to sentenced misdemeanants a proper function of the county judge executive? If this is a proper function, are there any statutory requirements which the county judge executive must follow?"
Judge Gudgel, for the Court of Appeals, in Com. v. Cornelius, Ky.App., 606 S.W.2d 172 (1980), held specifically that KRS 439.177 is unconstitutional, since the power to grant parole is vested exclusively in the executive branch of our government; and thus KRS 439.177, which authorizes sentencing judges to exercise such power, violates Sections 27, 28 and 77 of our Constitution and is void. The court noted that the county judge's authority to grant parole under KRS 439.175 was repealed, effective January 2, 1978.
Clearly, the county judge executive is presently in the executive branch of government. See §§ 109 and 124, Kentucky Constitution. He is the chief executive officer of the county.
The power to parole misdemeanants was given to county judges in KRS 439.175. It merely stated that parole may be granted to persons convicted of a misdemeanor and sentenced to jail under the same terms and conditions as parole may be granted for the conviction in felony cases. However, in Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967), the Court of Appeals held the statute to be inoperative and void for lack of intelligibility as to legislative intent. The court suggested that the language was such that the county judge could not understand it in deducing legislative will, and that the courts could not make anything definite out of it. In other words, it was lacking in intelligible guidelines. Later, in the Extraordinary Session of 1976, the General Assembly repealed KRS 439.175, effective January 2, 1978.
In the original enactment of KRS 439.177, in the 1972 regular session (Chapter 294), any misdemeanant, sentenced by the police court of a city of the fourth, fifth, or sixth class or by any court other than in a city of the first three classes, could petition the county judge of the county in which he is held, for parole privileges.
CONCLUSIONS
(1) It is our opinion that the General Assembly could enact legislation vesting the authority to parole misdemeanants in the county judge executives, since they belong to the executive branch of government. Such vested authority would have to be accompanied by express or explicit guidelines in order for the county judge executives to carry out that function.
(2) There is no effective and constitutional statute in existence at this time. Thus at present, the county judge executives have no authority to parole misdemeanants.