Request By:
Mr. Austin Weller
Nelson County Jailer
111 West Stephen Foster Avenue
Bardstown, Kentucky 40004
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions concern the photographing of prisoners in your jail and the work release program.
You have written that as the newly elected Nelson County Jailer, you have instituted a program whereby each incoming prisoner is photographed. This is primarily for the jailer's records and reference, but occasionally will be used by other police enforcement officers for investigative purposes. You intend to keep these photographs at the jail and under your custody at all times.
The question:
"Can I legally require these incoming prisoners to submit for photographing, and if such photographs are taken, what is my legal liability with regard to their safe keeping, particularly where they are at the jail location and made available for law enforcement investigative purposes?"
The basic law concerning your custodial duties is found in KRS 71.020 and 71.040. KRS 71.020 reads:
"Each jailer shall have the custody, rule and charge of the jail in his county and of all persons in the jail and shall keep the same himself or by his deputy or deputies. Where the jail admits the residence of the same therein he or one (1) of his deputies may reside in the jail. "
KRS 71.040, as amended in 1984, reads:
"At the time of booking, the jailer shall receive and keep in the jail all persons who are lawfully committed thereto, until they are lawfully discharged, unless the person is in need of emergency medical attention, in which case the arresting officer shall obtain medical attention for the person prior to delivery to the jail. The jailer shall treat them humanely and furnish them with proper food and lodging during their confinement. He shall deliver those who die in jail to their friends, if requested, or have them decently buried at the expense of the county."
KRS 441.055 provides that the Corrections Cabinet shall promulgate administrative regulations, establishing minimum standards for jails, including custody, care and treatment of prisoners and jail operations, recordkeeping and administration. Under KRS 441.045(1), the fiscal court is required to prescribe rules, consistent with state law, covering the jail operations. We assume the present fiscal court rules, if any, do not cover the photographing of jail prisoners. 501 KAR 3:020, relating to jail standards, Section 1, requires the jailer to develop and maintain an operations manual, which has been adopted by the fiscal court. We assume you have no operations manual at this time. While that regulation states that the operations manual may include a treatment of administration and security and control, photographing of prisoners is not expressly mentioned. Section 4 of 501 KAR 3:020 provides that the jailer shall establish and maintain an information system. Jail information and inmate records must be stored in a secure manner. Here again, there is no express mention of photographing of jail prisoners. See Section 1, 501 KAR 3:060, relating to a jailer's policy manual covering all security aspects of the jail operation.
This is written 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."
It is written in 21A Am.Jur.2d, Criminal Law, § 799, page 247, that "The imposition of such means of identification as the taking of fingerprints or palmprint impressions, as well as photographs, and like means, apparently does not violate constitutional provisions protecting persons against selfincrimination." Thus the Supreme Court, in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), wrote in connection with privilege of the Fifth Amendment against self-incrimination, that: "We recognized that both federal and state courts have usually held that . . . . [the privilege] offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." The point is that such a defendant is not under compulsion to disclose any knowledge he may have.
The Seventh Circuit Court of Appeals, in Kelly v. Dowd, 140 F.2d 81 (1944) 83, wrote that:
"The acts of prison officials, vested with a rather wide discretion in safekeeping and securing prisoners committed to their custody and charged with the right and duty to maintain discipline among inmates, should be upheld if reasonably necessary to effectuate the purposes of imprisonment. Whether a state warden, in keeping and caring for prisoners of the Commonwealth, has adopted regulations or performed acts which result in unreasonable discrimination against an inmate or take from him the right not to be subjected to indignities or deprive him of what prisoners are permitted to enjoy under the statutes, are questions peculiarly fit to be determined in the first instance by the courts of the state."
The Supreme Court of the United States, in Lanza v. New York, 370 U.S. 139, 8 L. Ed. 2d 384, 82 S. Ct. 1218 (1962), involving a transcript of a conversation the defendant had in jail with his brother and recorded by state officials, wrote at page 388:
"Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day."
The Supreme Court, in Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968) at page 1253, said this:
"Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. "
The Supreme Court concluded, in United States v. Ash, 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568 (1973), page 633, that it was not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required. The court held that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the government for the purpose of allowing a witness to attempt an identification of the offender.
The answer to your first question is that you have the authority to photograph prisoners, without their consent, legally entrusted to your custody for the purpose of identification and in order to promote the safe-keeping and security of the jail. This item could be included in the jailer's operations manual, to be adopted by the fiscal court, mentioned above. You would have the responsibility for the safe-keeping of such photographs, subject only to their proper use by law enforcement officers for investigative or other law enforcement purposes. The matter of misidentification is one that only the courts in a particular case can resolve.
Your second question reads:
"My further question is if while on work release, the inmate walks off the job or returns to jail in violation of any of the work release rules or is in violation of any other law, will it be permissible for me to take charges against him for the offense? Incidentally, no prisoner will be under guard during work release. "
We assume you refer to KRS 439.179, relating to a release of a person sentenced to jail for a misdemeanor, nonpayment of a fine or forfeiture, or contempt of court. Under that statute, such convicted defendant may be granted the privilege of leaving the jail during necessary and reasonable hours for, among other things, working at his employment. KRS 439.179(1)(b). The granting of the privilege rests with the sentencing court. KRS 439.179(2). You as jailer must obey the orders of the sentencing court, in that regard, except that under subsection (8) of that statute, you may refuse to permit the prisoner to exercise his privilege to leave the jail to work for any breach of discipline or other violation of jail regulations for a period not to exceed five (5) days. Where you apply subsection (8) of that statute, you should, before you further detain the prisoner, appear before the sentencing court and explain to him what you are doing and why. Such exception (subsection (8)) should be construed strictly. Hargett v. Kentucky State Fair Board, 309 Ky. 132, 216 S.W.2d 912 (1949) 917. In order for you to detain a prisoner ordered to be released under KRS 439.179 to work, you must be prepared to show to the sentencing court that the prisoner committed a breach of jail discipline or other violation of jail regulations. Thus if such prisoner given a work release walks off the job, or returns to jail in violation of any of the work release conditions or rules or is in violation of any other law, you can detain such prisoner after taking it up with the sentencing court and getting his permission to so detain the prisoner up to five (5) days. If you have evidence of the prisoner's committing a new statutory offense, you should go to the local county attorney or commonwealth's attorney immediately, depending upon whether you believe a misdemeanor or felony has been committed. You must keep in mind that the sentencing court may withdraw the privilege of work release at any time by order entered with or without notice. Further, you, as jailer, are required to advise the court in establishing criteria in determining a prisoner's eligibility for work release. KRS 439.179(2).
Do not confuse the work release of misdemeanants under KRS 439.179 with the working of prisoners at community service related projects or at hard labor under KRS 431.140. Thus where a convicted defendant is sentenced to confinement in the county jail, he may be required to work at a community service related project, where the court or jury in its verdict did not provide for hard labor. Such a project means work for a county, a city or a special district or any agency thereof. KRS 441.125(1). However, under the latter statute, such work projects must be pursuant to a written policy adopted by the fiscal court on the advice of the jailer. Before you can permit such convicted prisoners to work on community service related projects, the county judge executive or his designee shall sign his approval to the prisoner's participation. KRS 441.125(2). However, under a community service work project, the jailer retains custody of such prisoners at all times The jailer has control over them in the place of work designated by the county judge executive for that work, and subject to the county judge executive's order as to the specified manner of working the prisoners. Where a prisoner violates any regulation or internal rule, it should be left to the fiscal court policy as to the further working of the prisoner on a community service project. They might rule ordinary confinement. Further, participation in community services related projects shall not be deemed employment for any purpose. KRS 441.125(6).
A county judge executive has no authority over a work release program under KRS 439.179, as explained above.