Request By:
Ms. Barbara W. Jones
General Counsel
Corrections Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek our opinion concerning the establishment of community residential correctional centers.
UNDERLYING FACTS AND ISSUES
Your letter reads:
"The Corrections Cabinet has been requested by the Commission and the Governor's Office to investigate and write an RFP for a private vendor to operate a 200 bed minimum security facility.
"It is the opinion of this Cabinet that a private vendor may, in fact, contract with the Commonwealth and the Corrections Cabinet to provide a community residential correctional center under KRS 439.590.
"We are requesting an opinion from the Attorney General's Office as to whether, in fact, this is an accurate interpretation by the Cabinet in that a private vendor may contract pursuant to KRS 439.590 with the Corrections Cabinet and the Commonwealth to establish a community residential coorectional center in one or more than one location throughout the Commonwealth."
The unrelenting felony crime rate and the recidivist problem are resulting in overcrowding the existing penal institutions of the Corrections Cabinet. Then to compound the problem, various inmates in corrections facilities are bringing many suits in the Federal District Courts, alleging violations of their civil rights and certain rights under the Federal Constitution, especially relating to the Eighth and Fourteenth Amendments. See Canterino v. Wilson, (U.S. Dist. Ct., W.D. Ky., - 1982) 546 F.Supp. 174.
Even in the face of this powder keg situation, there is legislative emphasis upon acting upon the probability of certain corrections prisoners being rehabilitated. See KRS 196.110(2), 197.065(1), 197.070, and 197.140.
The Court, in Rhodes v. Chapman, 452 U.S. 337, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981), wrote this at 69 L. Ed. 2d 72, concerning the Eighth and Fourteenth Amendments:
"When conditions of confinement amount to cruel and unusual punishment, 'federal courts will discharge their duty to protect constitutional rights.' Procunier v Martinez, 416 US 396, 405-406, 40 L Ed 2d 224, 94 S Ct 1800, 71 Ohio Ops 2d 139 (1974); see Cruz v. Beto, 405 US 319, 321, 31 L Ed 2d 263, 92 S Ct 1079 (1972) (per curiam). In discharging this overshight responsibility, however, courts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system: to punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law-abiding citizens."
It is well established by the Federal Courts that if the state is going to operate a penitentiary system, it must be a system that is countenanced by the Constitution of the United States. Thus lack of funds, or authority over funds, does not justify operating a prison system in an unconstitutional manner. Williams v. Edwards, (U.S. Ct. App., Fifth Circuit - 1977) 547 F.2d 1206, at 1213.
Within this total context of the state's responsibility for operating the corrections detention facilities in a constitutional manner, the prison officials are under a duty to provide inmates reasonable protection from constant threat of violence. See Pugh v. Locke, (U.S. Dist. Ct., M.D. Ala., N.D. - 1976) 406 F.Supp. 318 at 329.
ANALYSIS
KRS 439.590 reads:
"The corrections cabinet may establish community residential correctional conters at locations approved by the legislative body of the area where located as places of confinement for convicted felons. The secretary, or such person as said secretary delegates, may, at his own discretion, transfer prisoners to a residential center from any correctional institution for the purpose of facilitating the rehabilitation of the prisoner except as set out in KRS 439.620."
Under KRS 439.590, where the correctional center is to be established in unincorporated territory of a county, the fiscal court would have to approve the precise location or site of such correctional center. The approval of the legislature of the city government would be necessary where the location is within the boundaries of an incorporated city.
KRS 196.070 reads:
"The secretary of the corrections cabinet shall:
"(1) Supervise and administer the Kentucky state reformatory, the Kentucky correctional institution for women, the Kentucky state penitentiary, Northpoint Training Center, the Luther Luckett correctional complex, other minimum security correctional institutions established and operated by the cabinet, or any divisions of those institutions, and the prison industry program within those institutions.
"(2) Supervise the employment of prisoners who have not been paroled or conditionally released, either within or without the walls or enclosures of these institutions.
"(3) Have the authority to transfer, with the approval of the secretary and the secretary of the finance and administration cabinet, appropriated funds from the budget of one (1) penal institution to another.
"(4) Determine minimum, maximum and conditional release dates of prisoners in accordance with KRS 197.045.
"(5) Authorize the transfer of prisoners between institutions.
"(6) Approve the forfeiture or restoration of good time earned by prisoners during their term of confinement. "
KRS 196.135, provides:
"If the state proposes to acquire, construct, alter, or lease any land or structure to be used as a penal institution or correctional facility, and the proposed use is contrary to or inconsistent with local planning regualtions or local comprehensive plans, then the secretary shall comply with the requirements of KRS 100.361(2). Failure to comply shall cause any transaction respecting such acquisition, construction, alteration, or lease to become null and void."
KRS 196.070 clearly requires the Secretary of the Corrections Cabinet, inter alia, to supervise and administer "other minimum security correctional institutions" established and operated by the Cabinet. That phrase, "other minimum security correctional institutions", would embrace a community residential correctional center, as mentioned in KRS 439.590. KRS 196.135 envisions lands and structures used as penal institutions and which will be directly supervised and administered by the Corrections Cabinet. Note that the term "penitentiaries" includes minimum security facilities. KRS 197.010(3).
Under the statutes relating to the duties of the Secretary of the Corrections Cabinet, it is clear that penal institutions must be directly supervised, administered, and operated by the Corrections Cabinet. There are no statutes permitting Corrections to delegate such operationsl function to any other agency or to private enterprise.
When one considers the burdensome and delicate responsibility of Corrections to ensure that convicted felon detention facilities are operated constitutionally, it becomes more evident that our conclusion is inevitable, since the prisoners' federal constitutional rights are of a high order in the prison context.
More importantly, § 253 of the Kentucky Constitution requires that persons convicted of a felony and sentenced to confinement in the penitentiary shall be confined at labor within the walls of the penitentiary. Section 254 of the Kentucky Constitution requires that the Commonwealth shall maintain control of the discipline, and provide for all supplies, and for the sanitary condition of the convicts. Here we are thinking about adult prisoners only, not juveniles, as treated in § 252, Kentucky Constitution. See Norman v. Norman, 306 Ky. 243, 206 S.W.2d 915 (1947) 917, in which the court said that, conderning a convicted felon, the state is in possession of him under its police powers, under the effective judgment of the trial court.
Section 254 of the Constitution provides that only the labor of convicts may be leased. In Reliance Mfg. Co. v. Board of Prison Comr's, 161 Ky. 135, 170 S.W. 941 (1914), although the convict labor was leased, the work was performed within the walls of the penitentiary, and the prison officials exercised disciplinary control over sucn prisoners at all times. Prisoners can be worked outside of prison walls only as authorized in § 253, Kentucky Constitution. See Commonwealth Ex Rel. Hancock v. Holmes, Ky., 509 S.W.2d 258 (1974), which in no way undermined the constitutional premise that all correctional facilities or institutions housing convicted felons requires that corrections maintain the administrative and operative control of such institutions at all times. On this narrow point we are not concerned with any constitutional prisoner employment programs permitted by § 253, Kentucky Constitution.
CONCLUSIONS
(1) It is our opinion that the above cited Kentucky constitutional and statutory sections do not permit Corrections and the Commonwealth to contract with a private vendor to operate a community residential correctional center under KRS 439.590, free from the supervision, administration and disciplinary control of Corrections officials. Neither the constitution nor statutes of Kentucky permit such extraordinary delegation of authority. These restrictions are borne out pragmatically and legally when one considers the responsibility of Corrections for retaining disciplinary control and ensuring that all such convicted felon (adult) detention centers are operated constitutionally, in terms of the United States Constitution. The discipline and rehabilitation of such prisoners cannot be delegated by Corrections or the Commonwealth. Here we are not addressing the specific matter of the state's contracting with private enterprise to construct such a detention facility for the state or to lease it to the state for the state's direct use and operative control. Such matters rest with the usual law of contract and applicable bidding procedure.
(2) Under the above analysis, it is not necessary to consider any financial or budgetary aspects of such a contract.