Request By:
Mr. James S. Secrest
Allen County Attorney
210 West Main Street
P.O. Box 35
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question relates to parole privileges for misdemeanants, as covered in KRS 439.177. The statute vests the parole function solely in the district judge of the sentencing court.
Question No. 1:
"Does the District Judge, being a member of the Judicial Branch of Government, have the power of parole under the Supreme Court's decision in Peck v. Conder? Is KRS 439.177, as amended, valid in view of the decision in Peck?"
Senate Bill 15, 1976 Acts (Ex. Sess.) Ch. 14, § 446, amended KRS 439.177 by deleting from the parole authority police judges and county judges and substituting therefor the district judge of the sentencing court.
The Supreme Court of Kentucky, in Peck v. Conder, Ky., 540 S.W.2d 10 (1976) 12, pointed out 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. What then happens to the prisoner is entirely in the bailiwick of the executive branch of government, and is no business of the courts, including the trial court. In granting parole the county judge acts in an executive capacity, not a judicial capacity. Murphy v. Cranfill, Ky., 416 S.W.2d 363, 365 (1967)." (Emphasis added).
Your question is: May the legislature vest the parole power in the district judge in view of Peck v. Conder?
In order to get Peck into perspective, we must see that it narrowly holds that under KRS 439.177 the county judge/executive (prior to the 1976 amendment), "in his capacity as an officer of the executive branch, may grant parole to a misdemeanant. " (Emphasis added). While the statute also involved police judges, who were solely judicial officers, the court stated that "we express no opinion with respect to the possible invalidity or partial invalidity of the statute on grounds not raised in this case."
However, Peck v. Conder is persuasive on the narrow issue raised here of whether a judge of the judicial system can be given the executive role of granting parole, since the court said parole is an executive function and is no business of the courts. In the county judge's case the county judge (prior to January 2, 1978) had executive and administrative functions, as well as judicial functions. Here the district judge has basically a judicial function only. The court has said that the legislature can confer upon the judiciary the administration of a criminal law itself. But the administration by the court simply means exercising the judicial function in trying a person charged with violating the criminal statute. Campbell v. Commonwealth, 229 Ky. 264, 17 S.W.2d 227 (1929) 229.
It is our opinion that the legislature cannot, under the constitution, confer the executive power of parole upon judges of the Court of Justice. In Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101 (1928) 1105, the Court of Appeals held that an act attempting to confer upon the circuit judge the authority to parole convicted prisoners violates §§ 27 and 28 of the Kentucky Constitution. Section 28 provides that no person of a branch of government shall exercise any power properly belonging to either of the other branches. Further, the court in Peck, above, categorically wrote that parole is no business of the court. See Commonwealth v. Williamson, Ky., 492 S.W.2d 874 (1973), citing approvingly several cases on the point that after a court has lost statutory control over its judgment imposing a criminal sentence, the court cannot exercise the power, whether called probation, parole or pardon, to suspend the execution of the sentence.
Question No. 2:
"Is there any situation in which the county judge/executive has the authority to release a person from jail after such person has been committed to jail by the district judge? by the circuit judge?"
We can find no such authority under present statutes.