Could a Kentucky jailer refuse a prisoner if the criminal charge was a pretext for mental health detention?

Plain-English summary

Kentucky's Attorney General concluded in 1994 that a jailer could not reject a person lawfully committed on a pending criminal charge solely because the jailer believed the charge was a pretext for holding a mentally ill person until a mental health petition could be filed. The newly enacted KRS 202A.251 prohibited charges placed solely or primarily to avoid transportation to a hospital or psychiatric facility, but the AG said it did not give the jailer authority to judge that purpose and refuse booking.

The opinion read that rule alongside KRS 71.040, which directed jailers to receive lawfully committed people and contained a separate exception for someone needing emergency medical attention. The AG did not approve pretextual criminal charges; it addressed the jailer's authority when a charge was already pending.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Jailers asked to accept a charged person

The question described a person charged with a crime while a mental health petition was being pursued. The AG said the pending criminal charge met the condition in the newly enacted statute for jail detention and that the statute did not authorize the jailer to treat the apparent motive behind the charge as a basis to refuse custody.

Peace officers and transportation

The opinion quoted KRS 202A.251's separate command barring a peace officer or other person from placing charges against a mentally ill person in need of hospitalization solely or primarily to avoid transportation to a hospital or psychiatric facility. The AG distinguished that prohibition from a jailer's booking authority.

Emergency medical attention

The AG quoted KRS 71.040's requirement that a jailer receive lawfully committed persons, except where the person needed emergency medical attention. In that event, the quoted statute required the arresting officer to obtain medical attention before delivery to jail. The opinion said the suspected pretext for charges was not another exception.

Common questions

Could the jailer refuse booking because the charge seemed pretextual?

The AG answered no under the 1994 statutes it analyzed. It found no authority for the jailer to make that determination and reject a prisoner on that ground.

Did the new mental health statute allow jail detention when criminal charges were pending?

The AG read KRS 202A.251 as allowing detention under its terms when criminal charges were also pending. It did not say that a pretextual charge was lawful.

What if the person needed emergency medical attention?

The opinion identified that as a different statutory situation. KRS 71.040, as quoted, required the arresting officer to obtain medical attention before delivery to the jail.

Background and statutory framework

The 1994 legislation codified as KRS 202A.251 addressed jail detention under Kentucky's mental health chapter and charges used to avoid hospital transport. The AG emphasized that the provision imposed a restriction on those placing charges, while KRS 71.040 governed the jailer's receipt of a lawfully committed person. Because the latter had an emergency medical exception but no pretext exception, the AG concluded the jailer could not refuse custody for the reason posed.

Citations and references

• KRS 202A.251: jail detention where charges are pending and prohibition on charges meant to avoid hospital transportation.
• KRS 71.040: jailer's booking duty and emergency medical attention exception.
• OAG 92-84: earlier opinion referenced on the emergency medical issue.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-062.htm

Original opinion text

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