dissenting.
Because KRS 520.010(2) specifically excludes “constraint incidental to release on bail” from the definition of custody, the Appellant may not be charged with escape from custody under KRS 520.030 for violating home incarceration as a form of pretrial release. If KRS 520.010(2)’s definition of custody is “unwise or impolitic, the remedy rests with the Legislature; not with the courts .... We have no authority to change or alter the established rules of law. Our functions are judicial, not legislative. We sit here to declare what the law is, and not what it ought to be.”1 Accordingly, I dissent.
While I have no doubt that a defendant may properly be charged with escape while on home incarceration as an “alternative to confinement in a penitentiary after the fact of sentencing by a court,”2 a defendant may not properly be charged with escape from custody while on home incarceration as a form of pretrial release *273pursuant to KRS 431.517 because he or she is not in custody as that term is defined by statute. Instead, the proper remedy for a violation of home incarceration while on pretrial release would be to revoke the release privilege and return the defendant to the county jail to await trial.3
In Buford v. Commonwealth,4 which bears the imprimatur of this Court, the Court of Appeals made the distinction between pretrial home incarceration and home incarceration as a sentence in concluding that jail-time credit would be afforded to those participating in the program after trial, but not to those whose participation occurred before trial. Specifically, the Buford Court determined that a defendant, like Appellant here, who had been released to Jefferson County’s home incarceration program in lieu of bond, could not receive jail-time credit for the time he spent on home incarceration because he was not in “custody” at that time. There is no reason why this Court should take a different view when addressing home incarceration in the context of an escape charge. It is inconsistent and illogical to deny a defendant jail-time credit for time spent in home incarceration prior to conviction because he or she is not in custody, and yet hold as the majority opinion does that a defendant in pretrial home incarceration is in custody for purposes of a conviction for escape from custody.5 In such circumstances, a defendant is either in custody or not; logically it cannot be both.
The majority of this Court, in effect, concludes that pretrial home incarceration is custody based upon the common meaning of custody. But the Legislature made it clear in defining custody for KRS Chapter 520 that the common meaning of custody does not apply where it would include pretrial release conditions, and the statutory definition of custody must control.6 The Court of Appeals in Cooper v. Commonwealth7 understood the definition of “custody” when it said, “As the definition [of custody] currently stands in Kentucky law, restrictive terms on bond-released time do not amount to custody and are indeed still a privilege granted to an arres-tee.” 8 Home incarceration was a nonfi-nancial condition imposed on Appellant’s pretrial release9 and was used in lieu of requiring bail. As a result, for the purpose of determining whether he escaped from custody, it was no different than if the Appellant had been released on bail. *274Thus pretrial home incarceration is “constraint incidental to release on bail.”10
There is a huge and glaring inconsistency in denying one person jail-time credit for time spent in pretrial home incarceration and in convicting another person of escape from custody for violating the terms of pretrial home incarceration.11 Both actions (the denial and the conviction) depend on whether one is in “custody,” and it necessarily follows that a determination in one case that an individual on pretrial home incarceration is not in “custody” would apply to all cases where pretrial home incarceration is imposed and the dis-positive question is whether the individual is in “custody.” “The majority of courts interpreting whether the term house arrest constitutes being ‘in custody’ have held that it does not.”12 By virtue of today’s majority opinion, this Court holds that an individual on pretrial release conditioned on home incarceration is not in custody for purposes of jail-time credit, but nevertheless is in custody for purposes of charging him or her with escape from custody. I cannot accept this inconsistency and thus, I respectfully dissent.
LAMBERT, C.J. and SCOTT, J., join this dissenting opinion.
. Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 982 (1933).
. Cooper v. Commonwealth, 902 S.W.2d 833, 835 (Ky.App.1995), discretionary review denied, Aug. 16, 1995.
. State v. Fellhauer, 123 N.M. 476, 481, 943 P.2d 123, 128 (N.M.Ct.App.1997) ("Defendant was not subject to a charge of escape if he failed to abide by the terms of his house arrest. The district court could have revoked the order allowing house arrest, but no new charges could have been brought. Thus, his non-compliance with house arrest would only have resulted in a revocation of his order of release.”); RCr 4.14 (allows the issuance of a warrant for violation of conditions of release). I would note that a defendant may properly be charged with bail jumping if he or she fails to appear as specified by court order. KRS 520.070-.080.
. 58 S.W.3d 490 (Ky.App.2001) (ordered published by Supreme Court of Kentucky).
. But see Buford v. Commonwealth, 58 S.W.3d 490, 492 (Ky.App.2001) ("We conclude there is no inconsistency in denying one jail-time credit for time spent in home incarceration prior to conviction and convicting one who violates home incarceration of escape.”).
. Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 43 (Ky.2000) (citing Dixon v. Caudill, 143 Ky. 623, 136 S.W. 1043 (1911) ("[Wjherever it may appear in the statutes, the definitions therein must control elsewhere, unless there be some statutory interdiction.”)).
. Cooper, 902 S.W.2d at 836.
. Id.
. RCr 4.04(1 )(c); RCr 4.04(2); RCr 4.14.
. See, e.g., State v. Fellhauer, 123 N.M. 476, 943 P.2d 123, 128 (Ct.App.1997) (holding that defendant released on pretrial house arrest was not entitled to jail-time credit); State v. Faulkner, 102 Ohio App.3d 602, 657 N.E.2d 602 (1995) (where defendant was not entitled to credit toward prison sentence for time “served" under electric home monitoring as condition of recognizance bond pending trial because such electronic house arrest constituted "constraint incidental to release on bail” and not “detention” or "confinement” within statute providing for sentencing credit).
. See id. at 491. I would note, however, that there is no inconsistency with denying one jail time credit for time spent in home incarceration prior to conviction and convicting one who violates home incarceration of escape, but only when the latter home incarceration was imposed as an alternative to confinement in a penitentiary after conviction.
. State v. Climer, 127 Idaho 20, 896 P.2d 346, 349 (Ct.App.1995).