[1994/oagheade.htm]

OAG 94-62

October 4, 1994

Subject: Jail detention of mentally ill

Written by: Gerard Gerhard

Requested by: Hon. Clay M. Bishop, Jr.

Syllabus: Legislation enacted during the 1994 regular session of the Kentucky General Assembly does not empower a jailer to refuse to accept custody of a prisoner charged with a crime on the ground the jailer knows the charge is a ruse to hold the prisoner pending obtaining of a mental petition.

OAGs cited: OAG 92-84

Statutes construed: KRS 71.040; 202A.251

OPINION OF THE ATTORNEY GENERAL

The following question has been presented:

Can the Clay County Jailer refuse to accept a person into his jail who has been charged with a crime such as disorderly conduct while the jailer has personal knowledge that the charge was brought against this person only as a means of incarcerating him until the proper mental petition has been filed?

(Emphasis added.)

In our view a jailer may not refuse to accept a prisoner who has been charged with a crime on the ground that the jailer knows the charge is a ruse to hold the prisoner while a mental petition is pursued. Discussion follows.

1994 LEGISLATION

Legislation passed during the 1994 regular session of the Kentucky General Assembly (HB 207, Acts, 1994 Reg. Sess., ch. 498, sec. 9) created a new section of KRS chapter 202A, codified as KRS 202A.251, which provides:

No person held under the provisions of this chapter shall be detained in jail unless criminal charges are also pending. No peace officer or any other person shall place criminal charges against a person who is mentally ill and in need of hospitalization pursuant to this chapter solely or primarily for the purpose of avoiding transproting the person to a hospital or psychiatric facility.

(Emphasis added.)

The facts presented in your question indicate that a person has been charged with a crime. It follows that the condition precedent to detaining in jail, a prisoner who would fall within the purview of the new legislation, is met. A criminal charge is pending. In such circumstance, the newly enacted legislation does not operate to ban detention in jail.

While a part of the new legislation directs that peace officers shall not place criminal charges against one who is mentally ill and in need of hospitalization, solely to avoid transporting a person to a hospital or psychiatric facility, there is nothing in the new legislation that provides for a jailer to make a determination that the charge against one offered for booking is a ruse, and to refuse acceptance of a prisoner on such basis.

BASIC RESPONSIBILITY OF JAILER: KRS 71.040

In addition to the observation above, we note that no change was made in KRS 71.040, which establishes what might be termed the basic responsibility of a jailer in relation to acceptance of a prisoner. That statute provides, in part pertinent here:

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.

(Emphasis added.)

It will be noticed that KRS 71.040, while empowering a jailer to refuse to accept a prisoner who is in need of emergency medical attention (see OAG 92-84), does not authorize a jailer to refuse to accept custody of a prisoner on the ground the jailer knows that a charge against a person is a ruse to avoid transporting a prisoner to a hospital or psychiatric facility pending the processing of a mental petition.

Aside from KRS 71.040, in our view, the new language added to KRS chapter 202A (see above) cannot be read as separately providing that a jailer may refuse to accept custody of a prisoner on the ground that the jailer knows that the charge against a person is a ruse to avoid transporting a prisoner to a hospital or psychiatric facility pending processing of a mental petition.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General