Request By:
Mr. J. B. Key
Barren County Jailer
Barren County Corrections Center
Ford Drive
Glasgow, Kentucky 42141
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Mr. Carroll M. Redford, Jr., Commonwealth's Attorney of the Forty-third Judicial District, on your behalf as Barren County Jailer, has raised the question as to whether you are required to continue treating a child under 18 years of age as a juvenile prisoner (away from the sight and sounds of adult prisoners, etc.) after the juvenile's rights have been waived and he has been transferred to the Barren County Grand Jury where his alleged felony offense is considered and when the juvenile has been indicted by the Grand Jury for the felony offense.
You, as jailer, have a young prisoner that fits the above described category, and you have continued to hold him in jail, using reasonable care. However, you need to know whether you must continue holding him as a juvenile prisoner, or whether you can place him anywhere in the jail, using, of course, reasonable care for his safety, health, etc.
The repeal of KRS 208.010 to 208.670 and 208.990 by Acts 1980, Ch. 280, § 152, which would have taken effect on July 15, 1984, as indicated in the bound volume of the KRS, was itself repealed by Acts 1984, Ch. 184, § 1, effective July 13, 1984. Therefore those statutes printed in KRS Chapter 208, bound volume, stand effective, except that KRS 208.020 was amended by Senate Bill 20, Ch. 165, 1984 Acts, § 21. That amended statute is printed in the pocket part to Volume 9, KRS, Michie. KRS Chapters 208A and 208B were repealed by Acts 1984, Ch. 184, § 1, effective July 13, 1984.
Under KRS 208.010(2), a child is a person who has not reached his eighteenth birthday. A "secure detention facility" is a physically secure setting which is entirely separated from sight and sound from all other portions of the jail containing adult prisoners. KRS 208.010(11).
KRS 208.120 deals with temporary or exceptional detention of juveniles. It provides that no juvenile under sixteen (16) shall be detained in jail (inter alia), except that the district court, at a hearing, may direct that a particular child, whose conduct may endanger other children located in a children's detention facility, be placed in the county jail, "but in a room or ward entirely separate from adult prisoners. " (Emphasis added).
KRS 208.130 deals with a permanent county detention facility for the custody of children held in custody pending disposition of their cases by the juvenile session of the district court. It is our view that both KRS 208.120 and 208.130 adopt the requirement that such juveniles awaiting district court action must be entirely separated from the sight and sound from all other portions of the jail containing adult prisoners. See KRS 208.010(11), KRS 208.120, and 208.130(7)(8) and (9). To be entirely apart from adult prisoners, there must be not only physical separation but also separation from communication with the adult prisoners.
Under the foregoing statutory provisions it is clear that the juvenile offender under the jurisdiction of the juvenile court (district) is a person not to be mixed up with adult offenders and prisoners in a county jail.
However, the factual situation you have presented relates to a juvenile whose "rights have been waived" and who is under an indictment in circuit court for a felony offense.
We assume from the letter written by the Commonwealth's Attorney that the juvenile session of the district court, after a hearing, transferred the juvenile's case to the circuit court and that the grand jury returned an indictment for an alleged felony, pursuant to KRS 208.170(5)(c), and the circuit court decided to not transfer the case to juvenile session of district court. Under such factual circumstances, "the child shall be tried as any other defendant." (Emphasis added). KRS 208.170(5)(c). As the Supreme Court of Kentucky wrote, in Johnson v. Com., Ky., 606 S.W.2d 622, 623 (1980), "Once a juvenile court assumes jurisdiction of an alleged offense committed by a juvenile, the court must either adjudicate the matter or conduct a hearing and transfer the case to circuit court pursuant to KRS 208.170."
The juvenile session of the district court has exclusive jurisdiction in proceedings concerning any child in the county who has not reached his eighteenth birthday and who committed a public offense while under eighteen (18), the exception being a child sixteen (16), but under eighteen (18), committing a moving motor vehicle offense. KRS 208.020(1)(a) defines a "moving motor vehicle offense" as not including the offense of stealing or converting a motor vehicle nor operating the same without the owner's consent, nor any offense which constitutes a felony. Juvenile offenders sixteen (16) years of age or older accused of moving motor vehicle offenses shall be treated as adult offenders, except that a juvenile offender accused or who pleads guilty to or is convicted of a motor vehicle offense shall be placed in a jail for adults, except in a room or ward entirely separate from adult prisoners.
CONCLUSIONS
Since the district court had jurisdiction of the juvenile, in connection with the alleged felony offense, KRS 208.170 provides that in order for the juvenile court to divest itself of jurisdiction and the circuit court to acquire it, the juvenile court must hold a hearing and enter an appropriate waiver order. Ivey v. Com., Ky.App., 655 S.W.2d 506, 509 (1983). Here we assume that the juvenile court held such hearing, under the terms of KRS 208.170, and entered an order of waiver, transferring the case to the circuit court, where the child was indicted for the alleged felony. The decision to waive a juvenile from the juvenile court to the circuit court is left to the sound decision of the juvenile court judge. Pevlor v. Com., Ky., 638 S.W.2d 272, 274 (1982); and Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). That discretion must be exercised within the boundaries of statutory criteria for such transfer, as spelled out in Sharp v. Com., Ky., 559 S.W.2d 727, 729 (1977). We also assume that the circuit court in its discretion decided to not transfer the case back to the juvenile court. KRS 208.170(5)(b) and (c).
Under these factual circumstances, it is our opinion that the juvenile, while under detention in the county jail prior to trial and judicial determination of guilt or innocence, may be incarcerated anywhere in the jail along with adult offenders, without segregation from adult prisoners or other privileges. First, KRS 208.170(5)(c) provides that where a juvenile is indicted, and where the circuit court retains jurisdiction, "the child shall be tried as any other defendant." (Emphasis added). By strong implication, that means that incarceration of the juvenile in an adult prisoner area is authorized. Secondly, there is no explicit statutory provision to the contrary of the implied concept. Thirdly, the express statutory provisions calling for a "secure detention facility" or requiring that the juvenile be placed in a room or ward entirely separate from adult prisoners (see KRS 208.010(11), 208.020(1)(a), 208.120 and 208.130) involve only the situation in which the juvenile session of the district court has jurisdiction. We can find no comparable statutory provisions relating to the situation in which the circuit court has jurisdiction of the juvenile's case. If the General Assembly desires to require segregation of such juvenile prisoners, it must enact such legislation.
The general rule, in connection with federal law, is that the basic responsibility for the control and management of detention institutions, including the discipline, treatment and care of the confined, lies with the responsible administrative agency (here, it is the jailer) and is not subject to judicial review unless exercised in such manner as to constitute a clear abuse or caprice on the part of prison officials. Evans v. Moseley, 455 F.2d 1084, 1086 (10th Cir. 1972). Thus you will have to use your sound judgment in connection with the proper and constitutional care and treatment of such juveniles, realizing that the juveniles can present special problems in connection with abuse from adult prisoners. See 42 U.S.C. § 1983; and the Eighth and Fourteenth Amendments to the United States Constitution.
The rationale for court decisions and statutes (such as Kentucky's), providing that juveniles held under juvenile court jurisdiction cannot be mixed with adult prisoners, is that the high standard of care required is a quid pro quo for society's right to exercise its parens patriae control over juveniles in custody. In effect, the Supreme Court of the United States has held that a juvenile is entitled to a higher standard of custodial care in return for a more limited set of rights during the adjudication process under the due process clause. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971); and In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). However, in your situation, that strict rationale of the above cited cases is not applicable, since the juvenile in question has been transferred to adult authority. Thus such juveniles must receive at least the full panoply of criminal constitutional rights to which any adult would be entitled.
However, in Swansey v. Elrod, 386 F.Supp. 1138 (N.D. Ill. 1975), involving juveniles placed in the Cook County jail in Chicago, it was argued that the juveniles were entitled to no higher standard of care than any other detainee in the criminal justice system. The federal district court, in disagreeing with that proposition, wrote that under the Eighth Amendment children who remain unconvicted of any crime may not be subjected to devastating psychological and reprehensible physical conditions. We are saying that even though Kentucky law permits you to house such juveniles with adult prisoners, the federal courts are saying that a higher standard of care should be provided for pre-trial juvenile detainees than is provided for adults. This is a concept evolving out of our moral conscience and constitutional law requirements, which takes into consideration the special nature of the juvenile placed within an environment of adult prisoners. See 42 U.S.C. § 1983, and the Eighth and Fourteenth Amendments to the United States Constitution.
It has been held that a jailer has the duty to exercise reasonable and ordinary care and diligence to prevent unlawful injury to a prisoner placed in his custody, however, he cannot be charged with negligence in failing to prevent what he could not reasonably anticipate. Thus a jailer is not an insurer of the safety of the prisoners under his control. City of Lexington v. Greenhow, Ky., 451 S.W.2d 424, 425, 426 (1970).