concurring.
I concur with the result achieved by the majority but wish to state my views separately.
These cases of prison overcrowding arose originally in Campbell and Kenton Counties and were quickly joined by jailers and other county officials from other large Kentucky counties. The Kentucky Corrections Cabinet, as a state agency, and certain of its officials, have been held in both civil and criminal contempt for failing to comply with injunctions requiring corrections to accept for incarceration prisoners sentenced on felony convictions.
Corrections does not deny its legal duty to accept such prisoners pursuant to KRS 431.215 and RCr 11.22 and it does not deny its failure to comply fully with the court injunctions. The argument it presents centers around inadequate funding, conflicting federal and state court orders and its good faith efforts to comply. The ultimate responsibility for solving this problem lies primarily with the legislature. The underlying problem is that the prisoners in question have been held in the county jail for periods ranging from three to nine months since their final sentencing and whether they have a statutory and constitutional right to be in a state penal institution.
Section 254 of the Kentucky Constitution provides that the Commonwealth shall maintain control and discipline of the convicts. That is, those who have been convicted of felonies and sentenced in the penitentiary pursuant to Section 253 of the Kentucky Constitution.
KRS 532.100 provides that a sentencing court shall commit the convicted defendant to the custody of the Corrections Cabinet. AOC form 79.54 provides that the sheriff deliver the defendant to the custody of the Department of Corrections at such locations within the Commonwealth as the Department shall designate. Normally penitentiaries are provided for the care and custody of convicted felons who are to be confined in state penal institutions. KRS 197.010(3) defines penitentiaries to include certain named or similar institutions. I do not believe that prohibits temporary lodging of felons at equivalent facilities. However, that does not imply that corrections can indefinitely incarcerate a prisoner in a county jail.
*17My principal difference with the majority opinion is that I believe that the law of Kentucky requires that convicted felons be committed to the custody of the Corrections Cabinet for imprisonment in an appropriate penal facility with proper security and safety as well as decent conditions consistent with state laws. The exact location of each commitment is of secondary importance. I do not believe that precludes appropriate contractual arrangements with public or private jail facilities to house convicted felons.
There are no simple solutions to the problem of prison overcrowding. It is not an answer to shift the problem from the state to the local government. Since the number of inmates confined at the Kentucky State Reformatory was limited by a federal court order in Kendrick v. Bland, 541 F.Supp. 21 (W.D.Ky.1981), the state has transferred a substantial burden for housing convicted felons to twelve of Kentucky’s larger counties. At one time, the Kentucky Jailers Association agreed to accept, and the State agreed to pay, $10 per day per prisoner, while in local jails. The proof presented in the Campbell and Kenton county cases indicates that such sum was grossly inadequate. It has been argued that it costs the State approximately $30 per day for a prisoner, and the difference obviously shifts the burden for a substantial number of prisoners to the counties. The state may save, but the counties suffer severely. The taxpayers of the entire state need to share the burden of criminal facilities as distinguished from individual counties.
As an example, the Campbell County Jail has been frequently overcrowded requiring the county to transport a variety of prisoners to other jails in other counties. This results in a substantial financial burden on Campbell County because the county had to pay not only for housing and boarding its own prisoners at another jail, but also to pay the costs of transporting and guarding these prisoners. It is obvious that some kind of state and county contractual arrangement will be continued for some time in the future. However, the state needs to take a more realistic and equitable view towards the proper incarceration of convicted felons when it is deemed necessary to lodge them in a local county jail. The Corrections Cabinet must renegotiate the daily allowance to be paid for the housing of felony prisoners outside its own specific physical units. It must also cooperate in and supervise the upgrading of local facilities so that they meet appropriate state standards for prison incarceration.
The prisoners involved do not have a right to be incarcerated in a specific state penal building but rather, I believe they have only a right to be imprisoned in the equivalent of a state penal institution. The state prisoner should be promptly classified and assigned to an appropriate institutional space. If that is outside the physical units provided by the state then the local government or other agency providing for such housing shall be equitably compensated.
Consequently, I would affirm the decisions of the circuit courts involved.