COMMONWEALTH OF KENTUCKY V. EDSEL EUGENE HALE, JR .
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1999-SC-0120-DG
COMMONWEALTH OF KENTUCKY
BATEa---,--6~-(~---1
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1998-CA-1796
LAUREL CIRCUIT COURT NO. 97-CI-00806
V.
APPELLEE
EDSEL EUGENE HALE, JR.
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REMANDING
I. INTRODUCTION
While in Kentucky on work release from a federal prison sentence, Appellee
committed and was convicted of a Kentucky felony offense for which the Pulaski Circuit
Court sentenced him to serve four (4) years in the custody of the Kentucky Department
of Corrections .
Following Appellee's final sentencing for the Kentucky conviction,
Pulaski County Detention Center ("PCDC") employees, acting without authorization,
delivered Appellee into the custody of federal authorities who subsequently transported
Appellee to a federal prison to recommence service of his federal sentence .
Approximately seven (7) years later, the federal authorities released Appellee to a
Kentucky detainer for service of the Kentucky sentence imposed by the Pulaski Circuit
Court . While incarcerated at a Kentucky Correctional Facility in Laurel County,
Kentucky, Appellee filed a habeas corpus action alleging that his imprisonment was
unlawful and that he was entitled to immediate release from the Pulaski Circuit Court
sentence because the Commonwealth of Kentucky, by relinquishing its custody of
Appellee to federal authorities, had forfeited its right to enforce the Pulaski Circuit Court
sentence. Relying upon a "Forfeiture of Sentence Rule" ("forfeiture rule") announced in
Jones v. Rayborn ' and further defined in its progeny, both the Laurel Circuit Court and
the Kentucky Court of Appeals held that Appellee was entitled to a writ of habeas
corpus. On the Commonwealth's motion, we granted discretionary review to
reexamine the forfeiture rule . We conclude that this "rule" -- which is not compelled by
any federal or state constitutional provision, and, in fact, lacks any identifiable
underlying principle consistent with its past application -- is simply an antiquated,
judicially-created policy, and, because we can discern no persuasive reason to continue
the policy, we now abandon it. We therefore hold that the Commonwealth of Kentucky
did not forfeit its right to enforce Appellee's sentence when its agents improperly
relinquished custody of Appellee to federal authorities, and we thus reverse the
decision of the Court of Appeals and remand this case to the trial court for it to enter an
order denying Appellee's petition .
II. FACTUAL AND PROCEDURAL BACKGROUND
The matter now before the Court began with Appellee's filing of a Petition for a
Writ of Habeas Corpus alleging that his present imprisonment was unlawful and that he
was entitled to immediate release from service of the sentence imposed by the Pulaski
Circuit Court. In his affidavit, Appellee made no allegation that the Commonwealth or
its agents had, through deliberately oppressive actions, violated his substantive due
'Ky., 346 S .W .2d 743 (1961) .
process rights, and instead alleged only that Kentucky had "forfeited jurisdiction and
custody over [him] as it relates to further service of the Pulaski County sentence" by
"violat[ing] statutory procedures when [PCDC employees] released him to the
jurisdiction of the federal authorities ."
In its order granting habeas relief, the trial court made findings of fact as to the
nature of Appellee's confinement, and these findings, which we find supported by
substantial evidence, adequately outline the factual and procedural background to this
case:
1.
2.
3.
4.
5.
6.
The Petitioner received a federal sentence of twentyfour (24) years on August 15, 1979 .
On or about June 2, 1987, the Petitioner was
transferred by the federal authorities to the Big John
Bowling House in East Bernstadt, Kentucky, and was
permitted to participate in the Work Release Program .
While out on work release, Petitioner was arrested in
Pulaski County, Kentucky, on or about August 21,
1987, for the charges of Theft by Unlawful Taking
over $100 in violation of KRS 514.030, and lodged in
the Pulaski County Detention Center.
On or about August 21, 1987, while Petitioner
remained incarcerated in the Pulaski County
Detention Center, a Detainer was lodged against the
Petitioner by the Federal Authorities so that Petitioner
would be returned to Federal Custody upon
completion of the pending Pulaski County action and
any sentence he may receive therefrom .
The Petitioner remained in the custody of Pulaski
County pursuant to these charges and a plea of guilty
to Theft by Unlawful Taking was entered on January
20, 1988, whereby it was Ordered that Petitioner be
sentenced to imprisonment for a period of four (4)
years. Additionally, the Pulaski Circuit Court noted
that the recommendation of the Commonwealth was
a sentence of imprisonment for a term of four (4)
years to run consecutively with any other sentence he
had received .
Although there had been a detainer lodged against
the Petitioner by the Federal Authorities, there was
never any request for custody of the Petitioner
pursuant to KRS 440 .450-440 .510, Kentucky's
7.
[8]
[9]
[10 .]
[11 .]
[12 .]
Interstate Agreement on Detainers Act, nor was there
any action taken in accordance with KRS 440 .15044.420, Kentucky's Uniform Criminal Extradition Act.
On January 20, 1988, after Petitioner had entered a
plea of guilty before the Pulaski Circuit Court he was
taken back to the Pulaski County Detention Center,
whereby he was then delivered by officials at the
Detention Center into the custody of the Federal
Authorities .
Although there had been a detainer lodged against the
Petitioner by the Federal Authorities, there was never any
request for custody of the Petitioner pursuant to KRS
440 .450-440 .510, Kentucky's Interstate Agreement on
Detainers Act, nor was there any action taken in accordance
with KRS 440.150-440 .420, Kentucky's Uniform Criminal
Extradition Act.
On or about May 25, 1988, Pulaski County placed a
detainer on the Petitioner with the Federal Authorities
so that Petitioner would be placed in the custody of
Pulaski County upon his release from federal custody
for execution of the four (4) year sentence obtained
by Pulaski County.
On October 27, 1995, Petitioner was released from
the custody of the federal authorities in Manchester,
Kentucky into the custody of Pulaski County for
service of the Pulaski County sentence.
Since October 27, 1995, Petitioner has been
incarcerated pursuant to the Pulaski County
sentence .
On October 9, 1997, the date on which his Petition for
Habeas Corpus was filed, Petitioner was incarcerated
in Laurel County Detention Center pursuant to the
four (4) year sentence imposed in Pulaski County.
After analyzing these factual findings in light of Kentucky case law, the trial court
found two (2) separate and independent bases to support the conclusion that Appellant
was "being detained without lawful authority,
,2
and therefore entitled to the relief he
sought . First, the trial court concluded that, because there was no statutory
authorization for PCDC employees to transfer custody of Appellee to the federal
2
KRS 419 .020.
authorities, the transfer was illegal and, under Kentucky precedent, therefore "forfeited
Kentucky's right to enforce the execution and to insist upon the Petitioner's completion
of his sentence[.]" However, the trial court also concluded that "the four (4) year
sentence imposed by the Pulaski Circuit Court in Indictment Number 87-CR-110-3 was
to have run concurrently with the federal sentence the Petitioner was then already
serving" and thus reasoned that Appellee's Pulaski County sentence "was completed
when he was released from the custody of the Federal Institution . . . [and] [h]e should
not have been reincarcerated on the Pulaski County sentence ." Accordingly, the trial
court issued a writ of habeas corpus directing that Appellee "shall be immediately
released from being incarcerated pursuant to the Pulaski County Sentence."
The Commonwealth then appealed the trial court's order, and the Court of
Appeals separately addressed the trial court's alternative grounds for granting the writ.
First, the panel held that Appellant's Pulaski Circuit Court sentence ran consecutive to
his federal sentence, and thus rejected the fundamental premise of the trial court's
conclusion that Appellee's continued incarceration under a fully-exhausted Pulaski
Circuit Court sentence was unlawful . As to the forfeiture rule theory, however, the
Court of Appeals held that, because it had no authority to "either reverse or modify"
existing Kentucky precedent, it was "compelled to affirm" the trial court's issuance of
the writ.
The panel, however, encouraged this Court to reexamine the forfeiture rule
and expressed its belief that the applicable Kentucky precedent has mistaken the
nature of the federal-state relationship with regard to criminal jurisdiction :
We would be remiss if we did not point out the problem we
have with Jones and Davis . In both cases, Kentucky's
highest court applied extradition principles to a transfer from
state to federal authorities when such a transfer is not
actually an extradition . In both Jones and Davis , as here,
the jurisdictions involved are overlapping . Yet, the
authorities relied on by the Court in those cases involved a
state-to-state extradition and jurisdictions that are separate
and equal . It seems to us that neither local officials nor the
Governor has any discretion to decline the transfer. When a
federal marshal serves an arrest warrant the person named
must be turned over without delay. Furthermore, in Davis
the Court relied on KRS 440 .330 for part of its rationale,
ignoring the fact that the United States Government is not a
signatory to the Uniform Criminal Extradition Act, KRS
440.150 to 440.420 . None of the provisions of the Uniform
Criminal Extradition Act, including KRS 440.330, have any
application to a transfer of a prisoner from state to federal
authorities . We hope that the Supreme Court of Kentucky
will take another look at the forfeiture of jurisdiction problem .
We granted the Commonwealth's motion for discretionary review in which it had
designated one (1) question of law, "Whether the Kentucky Courts Should Overrule the
Forfeiture of Sentence Rule[.]" Appellee did not file a CR 76 .21 Cross-Motion for
Discretionary Review designating any additional issues for our consideration ,3 and thus
the sole issue before the Court is whether the Commonwealth lost its right to
incarcerate Appellee when Appellee was transferred to federal custody in an
unauthorized manner.
In analyzing this issue, we will first examine Kentucky's past
applications of this forfeiture rule and then determine whether the custody transfer in
this case falls within the scope of the rule . Finally, we will examine the theoretical
bases this Court has identified for Kentucky's forfeiture rule in order to assess whether
the rule continues to serve a valid purpose forty (40) years after its creation .
3See Commonwealth Transp . Cabinet Dep't of Highways v. Taub, Ky., 766
S .W .2d 49, 51-52 (1988) ; Green River Dist. Health Dep't v. Wigqinqton , Ky., 764
S .W .2d 475, 479 (1989) ("[T]he prevailing party in the Court of Appeals must follow [the
CR 76.21- procedure if he wishes our Court to further review other issues in addition to
those raised in the Motion for Discretionary Review ."), overruled on other rounds,
Withers v. University of Kentucky, Ky., 939 S .W .2d 340 (1997).
III. ANALYSIS
A. JONES v. RAYBORN AND ITS PROGENY :
THE FORFEITURE RULE IN PRACTICE
Kentucky courts first applied a forfeiture of sentence rule in 1961, when our
predecessor rendered Jones v. Ravborn .4 In that case : (1) Rayborn, the inmate
seeking habeas corpus relief, had first received, and began serving, a life sentence in
Kentucky, and a year later received a concurrent twenty (20) year sentence in federal
court ; (2) less than six (6) years into -- and slightly more than two (2) years before he
was eligible for parole from -- the Kentucky life sentence, "the Director of the Division of
Corrections acting under orders from the Commissioner of the Department of Welfare
of this Commonwealth directed the warden of the Kentucky State Penitentiary to
release Rayborn to . . . federal officers ,5 without Rayborn's consent ; 6 (3) Rayborn then
served approximately seven (7) years in United States Penitentiaries in other states
before he became eligible for, and was granted, parole from his federal sentence; (4)
Rayborn attempted to fight his return to Kentucky,' but was nonetheless arrested as a
fugitive and returned to the Kentucky State Penitentiary; (5) where under an opinion
rendered by Kentucky's Attorney General approximately two (2) months before Rayborn
was released from federal custody, Rayborn would now have to serve two (2) years and
two (2) months before he would become eligible for parole from his life sentence in
Kentucky.
4Supra note 1 .
5Id. at 745 .
6See Ravborn v. Swope, 215 F.2d 604 (9th Cir. 1954) .
7See Ravborn v. Jones , 282 F.2d 410 (6th Cir. 1960) .
Upon Rayborn's petition, the circuit court granted a writ of habeas corpus "on the
ground that the transfer of Rayborn to the federal authorities in September 1952
resulted in a waiver of jurisdiction by the Commonwealth . "8 On appeal, our
predecessor court affirmed, and in its opinion : (1) invoked state and constitutional due
process protections and took the Commonwealth to task for its "arbitrary actions" and
"cavalier treatment" of Rayborn ; 9 (2) relied heavily upon an Illinois case, People ex rel .
Barrett v. Bartley, 10 as support "for the proposition that when a state honors the request
of another state for the extradition of a convict who is serving a prison sentence without
stipulation for his return, it thereby relinquishes jurisdiction to subject him to further
punishment" ;" and (3) found fault with the fact that Appellant was returned to Kentucky
custody pursuant to a fugitive warrant . 12
Just one year after Jones v. Rayborn , our predecessor applied the forfeiture rule
in two more cases . In Davis v . Harris, 13 the Court held that Kentucky had forfeited its
right to incarcerate an inmate when Kentucky officials, acting arbitrarily without either
consent or statutory authority for their actions, held the inmate in local custody until he
was tried and convicted of a federal offense and then released him to federal
authorities to serve his federal sentence instead of delivering him to the custody of the
$Jones v. Rayborn , supra note 1 at 745 .
9Id . at 747.
1050 N .E .2d 517 (111 . 1943) .
11
Jones v. Rayborn , supra note 1 at 745.
12
Id. at 748 ("We believe his present commitment under a fugitive warrant
resulted from improper extradition, because he was not a fugitive from justice.") .
13Ky 355 S .W.2d 147
.,
(1962).
Department of Corrections to commence service of his Kentucky sentence ." And, in
Thomas v. Schumaker, 15 the Court invoked the forfeiture rule when Kentucky "parol[ed]
. . . a convict to the authorities of another jurisdiction for trial upon a criminal charge[ .] 16
These three cases -- Jones , Davis , and Thomas -- are the foundation of Kentucky's
forfeiture rule jurisprudence and stand for the general proposition "that the state forfeits
its jurisdiction when local authorities release a prisoner to another state without
following proper administrative or statutory procedures . "17
Thus, the primary issues involved in subsequent cases addressing Kentucky's
forfeiture rule concerned either the process by which an inmate was released to
another sovereign or the nature of the confinement from which the inmate was
released . And, because in the Jones, Davis, and Thomas trinity, "[i]t was the
14
Id . at 148.
15Ky ., 360 S .W .2d 215 (1962) .
16
Id . at 215 . But see Baldridge v. Commonwealth , Ky., 473 S .W.2d 847 (1971)
(reaching the opposite result when a similar action was taken at the direction of the
Governor in accordance with KRS 440 .330) .
17Shull v. Wingo , Ky., 446 S .W .2d 645, 646 (1969) . See also Davis v. Harris,
supra note 13 at 148 ("The evil in this and the Rayborn case is not so much what was
done, but that it was done without authority .") ; Brewster v. Luby, Ky., 380 S.W.2d 261,
262 (1964) ("It was the unauthorized manner and method of Kentucky's surrender of
the prisoner to another sovereign which was determinative in Jones, Davis, and
Thomas ."); Turner v. Thomas, Ky., 383 S .W .2d 379 (1964) ("Jones, Davis , and
Thomas all were cases in which physical custody of the prisoner was given over to
another jurisdiction without statutory or other regulatory authority for the procedure.");
Balslev v. Commonwealth , Ky., 428 S.W.2d 614, 615-6 (1968) ("In Davis and Thomas
we held that the transfer of custody without statutory authority constituted arbitrary
treatment barring further enforcement of the sentence under which the prisoner was
being held by this state at the time of the transfer."); Commonwealth v. Hayes, Ky., 734
S.W .2d 467, 471 (1987) ("Balslev, Thomas , and Davis stand for the proposition that an
unauthorized release to a foreign jurisdiction, that is, the transfer of custody without
statutory authority, constitutes `arbitrary treatment barring further enforcement of the
sentence under which the prisoner was being held by this state at the time of the
transfer ."' quoting Balslev v. Commonwealth , supra ) .
unauthorized manner and method of Kentucky's surrender of the prisoner to another
sovereign which was determinative , ~8 the Court has declined to apply the forfeiture rule
in cases where the cross-jurisdictional custody transfer occurred under the aegis of
statutory authority, e.g., when Kentucky: (1) authorized another state to supervise a
Kentucky convict's parole under the Uniform Act;'9 (2) returned another state's parolee
pursuant to an Interstate Compact ;2°
(3)
properly extradited a defendant under the
statutory provisions of the Uniform Criminal Extradition Act ("UCEA") ;21 or (4)
temporarily surrendered custody over the defendant under the Interstate Agreement on
Detainers ("IAD") .22 Nor have we applied the rule in cases where the Commonwealth of
Kentucky has not actually delivered custody to another sovereign, e.g ., when another
sovereign obtains custody of a Kentucky probationer by arresting him after a Kentucky
court ordered his release ,23 or when custody is obtained not from Kentucky, but from a
third-party asylum state .24
Further, we have applied the forfeiture rule to a narrow class of "prisoners" -- i .e .,
inmates in the Commonwealth's actual custody who were, at the time of the
18Brewster v. Luby, supra note 17 at 262 .
' 9See Turner v. Thomas, supra note 17 .
20
See Shull v. Wingo, supra note 17 at 646.
21
See Zitt v. Wingo , Ky., 467 S .W .2d 370, 371 (1971) . In fact, the UCEA
contains an express anti-forfeiture clause . KRS 440 .330 ("[H]owever, in no case shall
surrender of such prisoner be construed as a complete relinquishment of jurisdiction by
this state, but such prisoner shall forthwith be returned to the custody of this state . . .
22S ee Gall v. Commonwealth
, Ky., 702 S .W .2d 37, 44 (1986) .
23S ee Hemdon v.
Wingo , Ky., 464 S.W.2d 453 (1966)
24 S
ee Chick v. Commonwealth , Ky., 405 S .W.2d 14 (1966) .
-10-
unauthorized custody transfer, serving the sentence for which forfeiture is sought.
Accordingly, we have found habeas relief unavailable in cases where: (1) the defendant
is released from "pre-conviction custody" in Kentucky to another sovereign and later
returned to Kentucky, convicted, and sentenced ;25 or (2) the defendant was
surrendered to another sovereign while incarcerated for an offense separate from the
offense for which forfeiture is sought .26 And, we have also held that the rule will not
require forfeiture of a capital sentence 27 or of a fine unaccompanied by a term of
imprisonment .28
Finally, this Court and its predecessor have limited the application of the
forfeiture rule to Kentucky convictions, and, in cases where defendants have sought
habeas relief from their detention under extradition warrants, we have declined to
decide whether another state forfeited its right to execute a criminal sentence when it
transferred custody of the defendant to another sovereign .29
25
See Prather v. Commonwealth , Ky., 368 S .W.2d 175 (1963); Simpson v. Black ,
Ky., 471 S .W .2d 739 (1971); Lynch v. Commonwealth , Ky., 472 S .W.2d 263 (1971).
26S
ee Baker v. Commonwealth , Ky., 378 S.W.2d 617 (1964) ; Messamore v.
Wingo , Ky., 408 S .W .2d 448 (1966) . But see Balsley v. Commonwealth , supra note 17.
27
See Gall v. Commonwealth , supra note 22 at 44 ("The jury returned a death
sentence for Gall, and therefore, the rationale underlying these cases Jones, Davis ,
Thomas, and Balsle is inapplicable to him .")
28See Commonwealth v. Hayes , supra note 17 at 471 ("[T]he threshold factor
before a prisoner can question an obligation to serve out the remainder of his sentence
is proof that he has commenced serving out that sentence and his service has then
been interrupted in an unauthorized manner. None of this relates to payment of the
fine in this case .") .
29See Crady v. Cranfill, Ky., 371 S .W .2d 640, 644 (1963) ("[T]he privilege of
determining whether South Carolina has lost [the right to enforce the sentences
imposed] should rest exclusively with the courts of that state ."); Brewster v. Luby,
supra note 17 at 262 ("[I]t would be inappropriate and contrary to sound policy for the
courts of this state to assume jurisdiction to determine whether the demanding
(Continued on next page)
B. LEGALITY OF CUSTODY TRANSFER IN CASE AT BAR
Because we have held that the forfeiture rule is implicated only when an
unauthorized custody transfer takes place, the Commonwealth follows the lead of the
Court of Appeals and argues that our existing precedent has erroneously equated a
transfer of custody between Kentucky and federal authorities with the extradition
process implicated in a state-to-state custody transfer. Accordingly, the Commonwealth
argues that language in both Davis v. Harris and Balslev v. Commonwealth to the effect
that the federal government can obtain custody of an inmate incarcerated by Kentucky
only under the UCEA30 is misguided because : (1) the federal government is not a party
to the UCEA; and (2) it is not a party for a good reason -- an inmate incarcerated in a
Kentucky prison remains within the territorial jurisdiction of the United States and thus
"extradition" is unnecessary. Although we agree with each of these premises and with
the Commonwealth's observation that, in the past, we have erroneously suggested that
the UCEA is the proper means to transfer custody of an inmate between the
Commonwealth of Kentucky and the federal government, we disagree with the
conclusion drawn by the Commonwealth .
jurisdiction (Michigan here) has forfeited its right to enforce its laws against the
petitioner .") ; Wright v. Renaker, Ky., 387 S.W.2d 588, 589 (1965) ("[S]hall the courts of
Kentucky or Tennessee determine this matter? The answer to this question . . . is
found in Cradv v. Cranfill . . . . " (citation omitted)); Nolan v. Cowan, Ky., 501 S.W.2d
586, 588 (1973) ("[I]t is not the policy of this court to declare the effect of such a
violation under the laws of another state.").
30S ee Davis
v. Harris, supra note 13 at 148 ("Given a liberal and practical
construction, as we believe it should have, this statute [KRS 440.330] is broad enough
to authorize a transfer by the Governor of this state on request of the Attorney General
of the United States or his duly authorized representative.") ; Balslev v. Commonwealth ,
supra note 17 at 616 ("[I]f the statute [KRS 440.330] does not apply then there is, of
course, no authority whatever under which a prisoner of this state could be released
conditionally for trial on a federal offense .").
- 1 2-
The Commonwealth has cited us no authority to support its contention that the
Supremacy Clause of the United States Constitution 31 not only authorizes, but actually
requires, Kentucky to surrender custody of an inmate to federal authorities bearing valid
federal process . And, in fact, the authority we have located is directly to the contrary
because, as the United States Supreme Court held in Covell v. Heyman , 32 state and
federal courts exercise the authority of separate sovereigns:
These courts [federal and state] do not belong to the same
system, so far as their jurisdiction is concurrent ; and
although they co-exist in the same space, they are
independent, and have no common superior . They exercise
jurisdiction, it is true, within the same territory, but not in the
same plane; and when one takes into its jurisdiction a
specific thing, that res is as much withdrawn from the judicial
power of the other, as if it had been carried physically into a
different territorial sovereignty . To attempt to seize it by a
foreign process is futile and void . 33
In order to "preserved our two systems of courts from actual conflict of jurisdiction ,
the United States Supreme Court has held that either sovereign -- federal or state -31 U .S.
32
CONST.
art. I, § 2, cl . 2.
111 U.S . 176, 4 S.Ct. 355, 28 L.Ed . 390 (1884).
33
Id . at 111 U.S . 176, 182, 4 S .Ct. 355, 358 28 L .Ed. 390, 393. Cf. Ableman v.
Booth , 62 U .S . 506, 516, 21 How. 506, 516, 16 L . Ed . 169, 173 (1858):
[T]he powers of the General Government, and of the
State, although both exist and are exercised within the same
territorial limits, are yet separate and distinct sovereignties,
acting separately and independently of each other, within
their respective spheres. And the sphere of action
appropriated to the United States is as far beyond the reach
of the judicial process issued by a State judge or a State
court, as if the line of division was traced by landmarks and
monuments visible to the eye .
34 P onzi v. Fessenden
, 258 U .S. 254, 260, 42 S .Ct. 309, 310, 66 L .Ed. 607, 611
(Continued on next page)
-1 3-
has the right to exclusive custody of a prisoner who has been convicted of violating the
laws of that sovereign and is "permitted to exhaust its remedy . . . before the other court
shall attempt to take it for its purpose . 35 Accordingly, when the Commonwealth of
Kentucky took custody of Appellee for a violation of our Penal Code, it had a right as a
separate sovereign to require Appellee to serve the entirety of his four (4) year
sentence before it relinquished custody . And thus, even if the PCDC records
demonstrated that Appellee was released to the federal authorities holding a federal
arrest warrant -- and they do not36 -- no notion of "federal supremacy" would have
authorized the transfer of custody .
When an individual has violated the criminal laws of more than one jurisdiction, a
sovereign may, however, at its sole discretion, elect to waive its right to "exclusive
custody . . . in order that the other may also subject him to conviction of crime against
it. "37 And, while the Balsley Court correctly observed in 1968 that no Kentucky statute (1922).
35 1d .
361n fact the certified PCDC
custody documents that Appellee submitted to the
trial court contain no information regarding the circumstances under which Appellee
was released to the federal authorities despite the fact that administrative regulations
require that before they release a prisoner, jail officials must : (1) receive written legal
authorization for the release ; (2) verify the identity of the receiving authority; (3) keep a
written record "of the time, purpose, date, and authority for release or removal from
confinement, and into whose custody the prisoner is released or removed" ; (4) obtain
the receiving authority's signature on an authorized release form ; and (5) "consult with
the appropriate prosecutorial office in the county" before releasing the prisoner to a outof-state jurisdiction. See 501 KAR 10 :120(5) .
37Ponzi v. Fessenden , supra note 34 at 258 U.S . 254, 260, 42 S .Ct. 309, 310, 66
L. Ed . 607, 611 (emphasis added) . But, a sovereign's right of exclusive custody gives
an inmate no right to direct the manner in which he serves sentences owed to separate
sovereigns, and instead merely "gives the . . . sovereign the right, under the law of
comity to object to the interference of its jurisdiction of the person of the accused until it
has exhausted its remedy against him." Rawls v. United States , 166 F.2d 532 (10th Cir.
(Continued on next page)
-1 4-
- except, in its view, the UCEA38 -- authorized Kentucky to surrender a prisoner to
federal authorities for trial, the Kentucky General Assembly has subsequently enacted
the provisions of the IAD ,39 to which the United States Government is a party. The IAD
authorizes temporary custody transfers for exactly that purpose .4o
In the case at bar, however, Appellee was not transferred to federal custody
under the provisions of the IAD. Nor was the custody transfer accomplished for the
purpose of permitting a trial on a pending indictment . Instead, the federal authorities
took custody of Appellee so that he could recommence service of an already-imposed
federal prison sentence. The Commonwealth has not cited us to any statute that
authorized it to release Appellee to federal authorities under those terms, and we thus
conclude that the surrender of custody that occurred in this case would, under existing
precedent, mandate forfeiture of Appellee's four (4) year prison sentence imposed by
the Pulaski Circuit Court. Thus, we squarely face the issue upon which we accepted
discretionary review and must decide whether we should overrule existing precedent
and discard the forfeiture rule .
C. THE FORFEITURE RULE IN THEORY:
UNDERPINNINGS AND OBSOLESCENCE
The underlying theoretical basis for the forfeiture rule applied by Kentucky courts
is nothing if not murky. At the forfeiture rule's genesis in Jones v. Ra reborn , the Court
suggested all of the following: (1) an unauthorized transfer of custody constituted a
1948) .
38KRS 440 .150 - 440 .420 .
39KRS 440 .450 - 440 .510 .
40S
ee KRS 440.450(Art . III)(1) .
- 1 5-
relinquishment of jurisdiction akin to a pardon or a commutation of sentence 41
--
and, in
the process of so holding, the Court deprived that explanation of any possible
normative consistency by: (a) identifying an analytical flaw in the articulation for this
explanation and using that flaw to justify some alternative (and unspecified) articulation
of this "waiver" explanation ;42 and (b) sidestepping the fact that the same court that had
rendered the primary authority upon which the Jones Court relied later explicitly
declined to apply the forfeiture rule to an unauthorized release of custody ; 43 (2)
transferring Rayborn to federal custody -- and/or perhaps returning him from federal
custody -- constituted arbitrary action that violated Rayborn's rights under the 14th
Amendment of the United States Constitution; 44 (3) given the fact that Kentucky
transferred him out of the jurisdiction against his will, Rayborn was not a fugitive, and it
was thus improper to extradite Rayborn to Kentucky on a fugitive warrant; 45 and (4)
some combination of the above conduct was a violation of Rayborn's rights under
Section 2 of the Kentucky Constitution .46
41
Although, this opacity has continued in
Jones v. Ravborn , supra note 1 at 745-747.
42
Id . ("And, if the Governor may waive a right of the State when he is not
attempting to exercise his right to pardon and is acting in another field, we see no
reason why other officials of the State should not also bind the State by their official
acts .") .
43
People ex rel . Milburn v. Niersheimer , 82 N.E .2d 438, 440 (III . 1948) ("In order
to constitute petitioner's delivery to Federal authorities a waiver of jurisdiction over him
and thus, in effect, a pardon or commutation of his sentence, it was necessary that the
delivery be made pursuant to the direction of the Governor. No showing having been
made that the Governor authorized his release to Federal authorities, petitioner's
contention cannot prevail .").
44 Jo
nes v. Ravborn , supra note 1 at 747 .
41
Id . at 747-8.
46
Id .
-1 6-
subsequent cases, and the Court has failed to identify a consistent, underlying principle
for the forfeiture rule, the most clearly articulated explanations are : (1) that an
unauthorized transfer of custody constitutes a de facto commutation of sentence
because no mechanism exists for Kentucky to reclaim custody of the inmate ;4' and (2)
that Kentucky violates an inmate's Kentucky Constitutional right to be free from arbitrary
treatment when it transfers custody of the inmate without statutory authorization to do
so . 48 After examining these stated grounds, we conclude that neither principle justifies
the rule.
47
See Prather v. Commonwealth , supra note 25 at 176 ("In Jones v. Rayborn
and Davis v. Harris. . . . we held that Kentucky had waived its rights to a return of the
prisoners to this state .") ; Crady v. Cranfill, supra note 29 at 643 :
When a prisoner of one state is transferred without
reservation, and without his consent, to another state in
order that he may be subjected to confinement in the latter,
there is some reason to say that upon his release in the
second state he is not a `fugitive from justice' and thus
cannot properly be extradited . Quite possibly, the waiver
principle originated in that theory .
48See Yost v. Smith , Ky., 862 S .W .2d 852, 854 (1993):
The Corrections Department's transfer of Yost . . . was in
direct violation of Section 2 of the Constitution of the
Commonwealth of Kentucky. Such capricious and dilatory
tactics were unreasonable and completely failed to follow a
statutory or judicial scheme .
Therefore, we hold the transfer of Appellant Yost, without
proper statutory authority, operated as a forfeiture of the
Commonwealth of Kentucky's right to enforce the
completion of the sentence under which it was holding him
at the time of the transfer.
- 1 7-
We see a number of problems with the first rationale
,49
not the least of which is
that its initial premise -- that state-to-state extradition is available for only a narrow class
of "fugitives" who have actually voluntarily fled the requesting state to avoid prosecution
-- is inconsistent with existing judicial interpretation . In order "[t]o be a fugitive from
justice . . . the accused need only be absent from the demanding state when it seeks to
have him answer for the crime, and be found within the jurisdiction of another state,
50
and "[a]n alleged offender's status as a fugitive from justice is not affected by the fact
that he has been brought into the asylum state involuntarily, or even unlawful I Y. ,51
However, even if this rationale's initial premise were not flawed, this explanation fails to
hold water because our past application of the forfeiture rule has not been consistent
with it. Specifically, if an inmate who is surrendered involuntarily to another jurisdiction
cannot be a fugitive from justice and therefore cannot be returned to the original
jurisdiction, it stands to reason that Kentucky courts : (1) would not extradite a person to
a sister state if that jurisdiction had previously relinquished custody over him to another
jurisdiction ; (2) would apply the forfeiture rule in cases where Kentucky officials
surrendered custody over a defendant prior to his trial on Kentucky charges or a
defendant incarcerated for another offense ; and (3) would apply the forfeiture rule to
any criminal sentence -- including a sentence of death . Of course, as described above
49 We would observe that, because Appellee completed service of his federal
sentence in a federal prison located in Manchester, Kentucky, the Commonwealth of
Kentucky could obtain custody of Appellee without resort to the extradition process, and
this rationale is thus not germane to Appellee's situation . Accordingly, this case
illustrates that the "inability to extradite" rationale fails to justify application of the
forfeiture rule in all cases .
5031 A AM. JUR . 2D
Extradition § 22 (2002) .
51 Id .
§ 24.
-1 8-
in Part III(A), Kentucky courts have applied the forfeiture rule in none of those
circumstances .52
With respect to the "violation of Kentucky Constitutional rights" rationale, the
forfeiture rule appears to constitute its own "island" of due process jurisprudence in
which simple negligence on the part of county-level jail officials will constitute a
constitutional rights violation with its own, singularly harsh and, from all appearances,
unexamined, remedy . In the context of other alleged due process violations, we have
held that Kentucky Constitution § 2 prohibits only conscious violations
53
and have
distinguished between simple negligence and due process violations by requiring a
claimant to demonstrate bad faith .54 Similarly, and in accordance with recent United
States Supreme Court's due process jurisprudence ,55 other jurisdictions have required
heightened-culpability showings as a precondition to habeas relief.56 Our forfeiture rule
52 S
ee notes 25-27 and 29, infra , and surrounding text.
53 S
ee Standard Oil Co. v. Boone Co . Board of Supervisors , Ky., 562 S .W.2d 83,
85 (1978); Kentucky Milk Marketing v. Kroger Co . , Ky., 691 S.W .2d 893, 899 (1985).
54 S
ee Collins v. Commonwealth , Ky., 951 S .W.2d 569, 571-573 (1997).
55 S
ee County of Sacramento v. Lewis , 523 U .S . 833, 118 S .Ct. 1708, 140
L .Ed .2d 1043 (1998); Washington v. Glucksberg , 521 U .S . 702, 138 L.Ed .2d 772, 117
S .Ct . 2258 (1997).
56
S ee Hawkins v. Freeman , 195 F
.3d 732, 746 (4' Cir. 1999) :
(Continued an next page)
To declare the Parole Commission's decision [to revoke
Appellant's mistakenly-granted parole and reincarcerate him
on his sentence almost two (2) years after his release] so
"egregious and outrageous" as to "shock the contemporary
conscience" under these circumstances, we would have to
believe that it was infected or driven by something much
worse -- more blameworthy -- than mere negligence, or lack
of proper compassion, or sense of fairness, or than might
invoke common law principles of estoppel or fair criminal
procedure to hold the state to its error. To keep things in
- 1 9-
cases, however, have not required parties seeking habeas relief to make any such
showing before the rule will operate to jettison sentences lawfully imposed by Kentucky
circuit courts .5' Further, we would again observe that the forfeiture rule has not been
applied consistently with its purported theoretical foundation -- after all, if the forfeiture
rule is the appropriate remedy when inmates are treated capriciously, why is the
remedy unavailable to "arbitrarily treated" pre-trial detainees or defendants who have
been sentenced to death? Additionally, the moral force of this alleged basis for the rule
suffers substantially from the fact that, Kentucky courts have, in every context other
than unauthorized custody transfers between sovereigns, applied the prevailing rule
that "a writ of habeas corpus will not lie to challenge the conviction or imprisonment of
one who was brought by unlawful means into the jurisdiction where he was
convicted . ,58 In particular, it appears that Kentucky courts are in lockstep with their
constitutional perspective, we would have to see in it a
mindless "abuse of power," or a deliberate exercise of power
"as an instrument of oppression ." . . .
We do not believe the Parole Commission's decision can
be declared one meeting that stringent threshold
constitutional test. Nothing about it suggests any element of
vindictiveness or of power exercised simply to oppress.
Id . (citations omitted) ; Hunterson v. DiSabato , 308 F .3d 236, 246-7 (3rd Cir . 2002) ("The
relevant level of arbitrariness required in order to find a substantive due process
violation involves not merely action that is unreasonable but, rather, something more
egregious, which we have termed at times `conscience shocking,' or `deliberately
indifferent ."') ; Kelly v . State, 61 S.W .3d 341 (Tenn . Crim . App. 2000).
57
See Yost v. Smith , supra note 48 at 856 (Spain, J ., dissenting) .
58
Riley v. Commonwealth , Ky., 539 S.W .2d 285, 286 (1976) (where the Court
affirmed a denial of habeas relief after "accept[ing] as undenied appellant's contention
that he was kidnaped from the state of Michigan by Graves County authorities without
any sort of extradition papers and returned to the Commonwealth of Kentucky to stand
trial in the Graves Circuit Court ." _Id. at 285.) . See also Lyons v. Thomas, Ky., 378
S .W .2d 798 (1964).
-2 0-
federal counterparts as to "irregular rendition
S,,59
and therefore must have elected to
ignore a closely-related class of arbitrary treatment when we held that "neither the
jurisdiction of the court nor the right to put him on trial for the offense charged is
impaired by the manner in which he was brought from another jurisdiction, whether by
kidnaping, illegal arrest, abduction, or irregular extradition proceedings. ,60
After an examination of these stated rationales, we must agree with a conclusion
our predecessor reached four (4) decades ago in Crady v. Cranfill -- the forfeiture rule is
simply the product of judicial fiat :
In any event, considering the traditional definition of
"waiver" as a unilateral and intentional relinquishment of a
known right, it is apparent that as a description of the
process by which a state may inadvertently lose its right over
a prisoner because he has been unfairly handled by its
officers, the term is a misnomer. Actually, the process is
more in the nature of a forfeiture, judicially invoked to secure
fair treatment of the prisoner by the state . . . . [O]ur Jones
t"
opinion mentions in passing both the 14 Amendment of the
U .S . Constitution and § 2 of the Kentucky Constitution, but
does not categorically place the decision of the case on
either. On further reflection, we have concluded that the
question is not one of constitutional rights, but of state
policy . 61
59See Ker v. Illinois , 119 U .S . 436, 7 S .Ct. 225, 30 L .Ed . 421 (1886) (finding no
violation of due process under the federal constitution when defendant was "forcibly
and with violence" abducted from Peru and brought to Illinois for trial) ; Frisbie v. Collins ,
342 U .S . 519, 72 S.Ct . 509, 96 L.Ed . 541 (1952) (affirming state's denial of habeas
relief when defendant was "forcibly seized, handcuffed, blackjacked" and taken from
Illinois to Michigan for trial) ; United States v. Alvarez-Machain , 504 U .S . 65, 112 S .Ct.
2188, 119 L.Ed .2d 441 (1992) (forcible abduction from Mexico).
60 R
iley v. Commonwealth , supra note 58 at 286 . See also Roberts v.
Commonwealth , Ky., 417 S .W .2d 234 (1967) (holding that an illegal arrest will not affect
a subsequent conviction) .
61 C
rady v. Cranfill , supra note 29 at 643 (citations and footnotes omitted) .
-2 1-
And, our review of the relevant precedent leads us to the conclusion that this harsh
remedy, which, for all practical purposes, empowers deputy jailers to countermand our
circuit courts' judgments, is a relic that has outlived its usefulness. While the forfeiture
rule may have had a place as a prophylactic measure designed to prevent regression in
the midst of a paradigmatic change in correctional philosophy, 62 we can discern no
similarly compelling reason for a forfeiture rule in the 21 St Century . Accordingly, we
abandon the forfeiture rule previously applied by this Court and specifically overrule
Jones v. Ravborn , Davis v. Harris, Thomas v. Schumaker, Balsley v. Commonwealth ,
and Yost v. Smith to the extent that those opinions hold that Kentucky forfeits its
sentence any time its officials, acting without statutory authorization, transfer custody of
an inmate serving a Kentucky sentence to another sovereign .
Without the forfeiture rule, Appellee's petition lacks any grounds warranting
habeas relief. Although the trial court acted properly when it followed existing
precedent and granted Appellee's petition for a writ of habeas corpus releasing him
from his Pulaski Circuit Court sentence, upon reconsideration of the policy at issue
here, we find that the trial court's legal conclusion was erroneous and hold that the
Commonwealth of Kentucky did not forfeit its right to require Appellee to satisfy his
sentence . Appellee was found guilty of violating the law of two (2) sovereigns, and was
thus subject to two (2) sentences, which, under the law of this case, were to be served
62 S
ee Jones v. Ravborn , supra note 1 at 748, citing Ex Parte Drake, 283 P .2d
931, 935 (Cal . Dist. Ct . App . 1951) (in which the Court held that "[d]uring the past two
decades great progress has been made in penal treatment, by putting into ever
widening practice the ideas that thinking penologists have striven for centuries to
realize . We know now that the prison administrator's task is to rehabilitate the offender
and make plans for him to return to the community . . . . "); Gall v. Commonwealth ,
supra note 22 at 44 ("The underlying purpose of limiting transfer in these cases was to
prevent the interruption of the rehabilitative function of the penal system .").
-22-
consecutively. While Appellee had satisfied his federal sentence at the time he sought
habeas relief from the Laurel Circuit Court, he had yet to satisfy the sentence imposed
by the Pulaski Circuit Court, and thus Appellee was not entitled to a writ of habeas
corpus .
IV. CONCLUSION
For the above reasons, we reverse the decision of the Court of Appeals and
remand this matter to the Laurel Circuit Court for it to enter an order denying Appellee's
petition for a writ of habeas corpus.
All concur.
COUNSEL FOR APPELLANT :
A. B . Chandler, III
Attorney General
Perry T. Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Kathryn G . Wood
310 West Columbia Street
Somerset, Kentucky 42501
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