Request By:
Honorable John J. Wilson
Associate General Counsel
Office of General Counsel
U.S. Department of Justice
Washington, D.C. 20531
Opinion
Opinion By: David L. Armstrong, Attorney General; William L. Davis, Assistant Attorney General
This is in reply to your letter dated June 4, 1984, in which you inquire as to whether Kentucky law still precludes the utilization of State prisoners for employment by Federal contractors as stated in our letter of March 19, 1981. It is our opinion that Kentucky law still precludes the utilization of State prisoners for employment by Federal contractors. Our opinion is based upon five grounds:
First, Commonwealth ex rel Hancock v. Holmes, Ky., 509 S.W.2d 258, 260-261 (1974), states the following:
KRS 439.600(4) deals with employment other than that allowed by section 253. The constitutional debates clearly reveal that section 253 was designed to prohibit the Commonwealth, any division thereof, or any private enterprise from working convicts outside the prison walls, with the exceptions we will mention. In George v. Lillard, supra, we said,
"* * * The purpose of the enactment of that section of the constitution was to prevent the working of convicts by the state outside of the prison walls. That was the evil intended to be remedied by the prohibition contained in the section. * * *" Originally the Commonwealth was authorized to use convict labor outside the prison walls on its public works, or during a time of pestilence, or if prison buildings were destroyed and confinement could not be continued. Harris v. Commonwealth, 23 K.L.R. 775, 64 S.W. 434 (1901); Reliance Mfg. Co. v. Board of Prison Commissioners, 161 Ky. 135, 170 S.W. 941 (1914). Harris stated,
"* * * While the section of the constitution quoted requires the convicts to be worked within the walls of the penitentiary, they are not required to be always kept within the walls, and may be sent out under guard at times. * * *"
Our decision in Reliance Mfg. Co. v. Board of Prison Commissioners, supra, said,
"* * * that convicts shall be confined at labor within the walls of the penitentiaries, and the General Assembly shall not have the power to authorize their employment elsewhere, except upon the public works of the commonwealth, or in case of pestilence or the destruction of the prison building. * * *"
The 1915 amendment to section 253 of the Constitution liberalized its provisions by authorizing the use of prison labor to "* * * aid the counties for road and bridge purposes, * * *."
[2] Appellees argue that this is a meritorious and progressive program, therefore we should not strike it down. It is not for this court to judge the benefits, if any, to be derived from legislation, but rather to determine whether it is prohibited by the Constitution. Viewing it in that light, we hold that employment of prisoners convicted of a felony, except as authorized by section 253 as amended, is impermissible and that KRS 439.600(4) as drawn and implemented by KRS 439.620 is contrary to that section of the Constitution.
Second, Preston v. Ford, 378 F.Supp. 729-730 (E.D. Ky. 1974), states the following:
John Brenton Preston seeks to proceed in forma pauperis in this civil rights "class" action attacking Kentucky provisions foreclosing a "work release program" for inmates. The plaintiff, who is confined in a minimum security institution, argues that the wages paid incarcerated convicts are "inherently unfair", and that the unavailability of work release programs violates the Equal Protection Clause of the Fourteenth Amendment. The complaint seeks the convocation of a three-judge court to declare the unconstitutionality of Section 253 of the Kentucky Constitution and K.R.S. 197.070-197.200.
Section 253 of the Kentucky Constitution provides:
"Persons convicted of felony and sentenced to confinement in the penitentiary shall be confined at labor within the walls of the penitentiary; and the general assembly shall not have the power to authorize employment of convicts elsewhere, except upon the public works of the Commonwealth of Kentucky, or when, during pestilence or in case of the destruction of the prison buildings, they can not be confined in the penitentiary. "
This section was amended in 1915 to permit the use of convicts for work on public roads, bridges, and farms. The assailed legislation generally requires prison labor and industrial training; regulates the terms of work and compensation; forbids the employment of inmates outside the penitentiary for non-public projects; and specifies convicts ineligible for external work.
[1-4] The labor of a convict belongs to the state, which may within limitations specify the conditions of employment. Sims v. Parke Davis & Co., E.D. Mich., 334 F.Supp. 774, 791 (1971), aff'd 6th Cir., 453 F.2d 1259 (1971), cert. denied 405 U.S. 978, 92 S. Ct. 1196, 31 L. Ed. 2d 254 (1972); see also Green v. United States, D.C. Cir., 481 F.2d 1140 (1973); Breece v. Swenson, W.D.Mo., 332 F.Supp. 837, 843 (1971); Mercer v. United States Med. Center for Fed. Pris., W.D.Mo., 312 F.Supp. 1077, 1079-1080 (1970). Whatever the rehabilitative effects of a work release program, see Commonwealth ex rel. Hancock v. Holmes, Ky., 509 S.W.2d 258 (1974), a state convict enjoys no federally protected right to outside employment. "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948). These diminished liberties include participation in a particular prison job, Banks v. Norton, D.Conn., 346 F.Supp. 917, 921 (1972), or payment for work while incarcerated. Marchese v. United States, 453 F.2d 1268, 1271, 197 Ct.Cl. 102 (1972); Sigler v. Lowrie, 8th Cir., 404 F.2d 659, 661 (1968), cert. denied 395 U.S. 940, 89 S. Ct. 2010, 23 L. Ed. 2d 456 (1969); Shively v. White, W.D.Va., 351 F.Supp. 191, 195 (1972). Thus, in Wagner v. Holmes, E.D.Ky., 361 F.Supp. 895, 897 (1973), this court upheld a Kentucky statute denying outside release to specified classes of prisoners:
"One of the rights sacrificed as inconsistent with institutional security is that of freely leaving the prison to engage in outside employment. Participation in an outside work release program is in this respect a privilege, not a right; it is comparable to the educational opportunities extended to certain inmates: a benefit which may be withdrawn without constitutional proscription."
See Shaw v. Beto, S.C.Texas, 318 F.Supp. 1215 (1970); United States v. Pate, N.D.Ill., 229 F.Supp. 818 (1964).
Third, the former KRS 439.600(4) stated the following:
(4) To do work at paid employment in the community on a voluntary basis returning to the institution or to the facility at night.
A prisoner authorized to work at paid employment in the community under the provisions of this subsection shall surrender to the commissioner of corrections, or his designate, his earnings, less standard payroll deductions required by law. After deducting from the earnings of each prisoner an amount determined to be the cost of the prisoner's keep and confinement, which sum shall be deposited in the Kentucky state treasury as trust and agency receipts at the place of confinement of the inmate, the commissioner of corrections, or his designate shall:
(a) Allow the prisoner to draw from the balance a reasonable sum to cover his incidental expenses;
(b) Retain to the prisoner's credit such amount as deemed necessary to accumulate a reasonable sum to be paid to him on his release from prison;
(c) Cause to be paid any additional balance as is needed for the support of the prisoner's dependents. (Enact. Acts 1972, ch. 293, § 3.)
The former KRS 439.600(4) is embodied in the present KRS 439.600(1)(d) and (2) which state the following:
. . . (d) To do work at paid employment in the community on a voluntary basis returning to the institution or to the facility at night.
(2) A prisoner authorized to work at paid employment in the community under the provision of this subsection shall surrender to the secretary of the corrections cabinet, or his designate, his earnings, less standard payroll deductions required by law. After deducting from the earning of each prisoner an amount determined to be the cost of the prisoner's keep and confinement, which sum shall be deposited in the Kentucky state treasury as trust and agency receipts at the place of confinement of the inmate, the secretary of the corrections cabinet, or his designate shall:
(a) Allow the prisoner to draw from the balance a reasonable sum to cover his incidental expenses;
(b) Retain to the prisoner's credit such amount as deemed necessary to accumulate a reasonable sum to be paid to him on his release from prison;
(c) Cause to be paid any additional balance as is needed for the support of the prisoner's dependents. (Enact. Acts 1972, ch. 293, § 3; 1982, ch. 344, § 55, effective July 15, 1982.)
And, the former KRS 439.620 is basically identical to the present KRS 439.620.
Fourth, Commonwealth Ex Rel Hancock v. Holmes, supra, has not been overruled by the Kentucky Supreme Court. Also, Preston v. Ford, supra, has not been overruled by the United States Court of Appeals For The Sixth Circuit or the United States Supreme Court.
Fifth, Kentucky Constitution Section 253 has not been amended since the decisions of Commonwealth Ex Rel Hancock v. Holmes, supra, and Preston v. Ford, supra, were handed down.
Based upon the foregoing, it is our Opinion that the present KRS 439.600(1)(d) and (2) as drawn and implemented by KRS 439.620 are contrary to Kentucky Constitution Section 253. Thus, Kentucky State prisoners still cannot be utilized for employment by Federal contractors.
We hope that the Office of the Attorney General has been of some assistance.