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AAC Research Corner
The Criminal Justice System in Arkansas: Where we’ve been and where we are heading
The criminal justice system in Arkansas has traditionally been reactionary. The few times the system attempted to be proactive the plans enacted into law were not fully funded or fully implemented. However, we have made significant strides bending the growth curve on criminal offenses in Arkansas.
The objective studies of our criminal justice system have consistently demonstrated the annual growth in crime, including violent crime, and the need for additional state prison beds, including additional maximum-security beds. This is primarily due to population growth and the high rate of violent crime in Arkansas.
Legislation such as Act 570 of 2011 — the “Public Safety Improvement Act” — and Act 423 of 2017 — the “Criminal Justice Efficiency and Safety Act” — sought to bend the corrections growth curve, not cause there to be zero growth. According to corrections officials, the crime rate in Arkansas has decreased from approximately 3.5 percent in 2015 to 1.2 percent in 2021. However, the growth curve in Arkansas has consistently and reliably reflected some level of growth in crime, including violent crime. In recent years violent crime in Arkansas has grown, on average, by 1.5 percent annually. Again, the key word is “growth.” It remains that Arkansas ranks 4th nationally in violent crime.
As stated by Governor Asa Hutchinson in his State of the State speech, “We are increasing support and affirming that the first duty of government is public safety.” He also expressed when he came into office that he planned to “improve the quality of life in Arkansas.” Governor Hutchinson and the General Assembly have made major strides in corrections, community corrections, and behavioral health.
Ask any Arkansan if they expect persons convicted of violent crimes to be incarcerated in accordance with their judgment of conviction, and the answer will be a resounding, “Yes.” Are they aware that the criminal justice system has been continually under-funded? Are they aware that violent criminals are released after serving a fraction of their sentence — sometimes 1/6th of their sentence? Are they aware that Arkansas ranks 4th nationally in the United States for violent crime?
Early release of violent state inmates due to prison overcrowding is a conscious decision based upon the capacity of maximum-security beds in the state prison system. We’ve made several strides in corrections and community corrections. However, we need far more maximum-security beds in the state prisons for holding violent criminals for the term of their sentence.
To compound matters, we now have unprecedented overcrowding in our county jails and an unprecedented case load upon our circuit courts, prosecuting attorneys, and public defenders. Due to COVID-19, there have been few jury trials over the past two years. There have been bottlenecks in the transfer of convicted felons from our county jails to the state prison system. Due to the overcrowded jails, the backlog of unserved warrants has swelled. The backlog of criminal cases and state inmates backed up in our county jails will persist for years.
History of State Prison Beds in Arkansas
The last time Arkansas opened a new prison was in 2003 with the Ouachita River Unit. Mike Huckabee was Governor. According to the 2021 U.S. Census, the population of Arkansas has increased from 2.72 million to 3.01 million since the prison was built. Currently, the state prison system has a total of approximately 16,000 prison beds spread among 17 state prisons.
JFA Institute has been engaged in studying and reporting on the criminal justice system in Arkansas for over a quarter of a century. According to the institute, Arkansans should anticipate prison population growth to increase to 18,100 by 2026 and reach over 19,000 by 2030. Where are the thousands of convicted felons, many of whom are violent felons, going to serve their sentences? In our county jails by default?
Because Arkansas is ranked 4th in the nation for reported violent crime rates, national organizations have focused studies on the prison population and how it is predicted to increase. JFA has released annual reports studying Arkansas, and those results consistently show a need for additional state prison beds. The reports also explain how violent crimes have been increasing by an average of 1 percent each year from 2010 to 2018. From the growth curve, JFA predicts what the population will become in the years that follow. When looking at the predictions and actual populations, the average percent difference between the predicted Arkansas Department of Corrections (ADC) population and the actual ADC population from 2009 to 2019 was 1.8 percent, according to JFA. This means JFA has reliably predicted the population the year prior and only overestimated the population by at most 500 people.
Since 2015 the state of Arkansas has increased the number of state prison beds by over 1,000. However, the state also closed
Jordyn Nykaza Law Clerk
over 700 beds. Given the openings and closures, the state has increased prison beds by only a few hundred since 2015.
Since 2015 county jails have added 2,154 beds. Counties have added 433 beds by adding onto existing jails, and they have added another 1,721 beds by building a new county jail with additional bed capacity. Counties are having to expand their jails, not to hold misdemeanors, but to hold the backlog of state inmates. The state prison system in Arkansas has been experiencing an average daily prison population of 15,606, with approximately 2,300 of those backed up in county jails. The backup has been reduced to 1,500 as of this year.
Holding inmates for the state of Arkansas is not the intended purpose of a county jail. A convicted felon is directed to be taken by the Sheriff to the custody of the state of Arkansas, Division of Corrections, or Division of Community Corrections to serve their sentence as per the judgment of conviction. Several sheriffs recently testified before the Senate Judiciary Committee that the current level of overcrowding of state detainees in county jails is unsustainable. This level of overcrowding makes segregation of detainees difficult. The number of violent state inmates in county jails is creating a safety risk to jailers and other detainees. These are some of the reasons counties like Benton, Washington, Sebastian, Craighead, Saline, and Stone are considering adding to their jails.
County jails cannot be the default residence for convicted violent felons. If the state wants to decrease the Arkansas crime rate and keep citizens safe, it will put violent criminals into a new state prison and not allow for early release. Washington County Sheriff Tim Helder, a law enforcement officer with 43 years of experience, accurately described the position that most county jails are in: “[We] simply do not have the space to house other people’s prisoners.”
An additional 498 beds will be added in Brickey’s state prison near Calico Rock in 2024. These new beds are not a substitute for the new state prison that was proposed in 2013 but not funded, but they will serve as a temporary relief to the evergrowing problem. This is a band aid type of fix, not a cure.
State officials have been aware of the problem Arkansas has with crime and have taken measures to reduce the growth curve. Act 570 of 2011, the “Public Safety Improvement Act,” was passed to reduce inmate population growth and provide more complete services to offenders in the community. The changes Act 570 implemented were assumed to reduce the overall net sentences for Level 1 through 5 offenders by 20 percent. The prison population decreased from 15,035 to 14,627 the following year. However, this reduction did not last. In 2013, two years after Act 570 was implemented, the prison population increased to 17,850 inmates. The number of convicted felons directed to the state of Arkansas has continued to rise. Act 570 created a mass release of state inmates. Parole officers suddenly had a significant increase in parolees, and it became unmanageable with the resources they had. The state has since added more parole officers.
After Act 570 was implemented, the Legislature voted on adding a new state prison to the joint budget in 2013. A supermajority is needed to pass a budget item, and this proposal did not have it. The Legislature recognized that while Act 570 may have reduced the growth curve, it was not going to eliminate growth and the need for additional state prison beds. A new state prison was necessary, yet the vote to fund it failed.
Act 423 of 2017 implemented new programs for sanctioned parolees and probationers to attempt to curb the increasing prison population. These programs would send people who violated their parole for minor offenses to community corrections to be held for 60, 90 or 120 days rather than having their parole revoked and being held by the state prison to serve their remaining original sentence. Act 423 of 2017 specifically directed that community corrections would hold these sanctioned parolees and probationers. On paper the act sought a laudable initiative. However, many of those directed to serve a parole sanction by the law or the parole board are being detained for the period of their sanction in county jails.
Act 423 of 2017 also said parolees sanctioned under the law or parole board would be directed to the community correction facilities to receive treatment, counseling, and programming. Because parolees are being detained in county jails, they are not receiving the intended treatment, counseling, and programming. Not only are the counties burdened by holding parolees, but the parolees are being dealt a disservice. These are people who need rehabilitative help to stay out of the prison system. Parolees sanctioned under the law or the parole board are supposed to go to a community corrections facility or program to receive their necessary treatment from the state of Arkansas, but often this is not the reality. The state recently purchased the White River juvenile detention center, and it is being renovated to become a community correction facility. This Independence County location will be used for parolees and will hold 178 beds. It may take 18 months to open, but it will cycle hundreds of parolees that would otherwise go to a county jail. This is an excellent development. We are hopeful this facility will allow parolees to serve their sanctions with community corrections and receive their directed programming and treatment.
On Monday, March 28, 2022, Wendy Ware, the JFA consultant that has been engaged in making state inmate population
Justice
predictions for the past 28 years, testified before a subcommittee of the Senate Judiciary Committee. She indicated that the efforts of Act 570 of 2011 and Act 423 of 2017 are not showing up in the numbers. These acts are not making big strides in reducing the growth curve. They were never intended to eliminate the growth curve but were intended to reduce the growth curve, yet no reduction is apparent. Further testimony indicated that approximately 55 percent of the felony offenders in our prisons are violent offenders. There’s a persistent and erroneous misconception that the majority of offenders in our state prisons are non-violent. According to the Arkansas Division of Corrections, the breakdown of violent crimes is as follows: 8.3 percent are battery/assault offenses, 4.7 percent are violent/firearm offenses, 14.5 percent are homicide offenses, 18.7 percent are sexual offenses, and 25.8 percent are robbery/ burglary offenses.
Recent Affirmative Actions of the Governor and General Assembly
During the fiscal session of 2022 several significant measures were enacted to address these priority issues. These measures are greatly appreciated. Gov. Hutchinson and the General Assembly have announced and approved the following:
1. An additional 498 beds to be added in Brickey’s state prison near Calico Rock. There is a record backlog of state prisoners in county jails, which limits counties in their ability to enforce local laws. Because of this backlog, Governor Hutchinson recommends a one-time investment from the state’s surplus. This will greatly address the backup of state inmates in county jails. 2. The state has purchased the White River juvenile detention center, and it is being renovated to become a community correction facility. This Independence
County location will be used for parolees and will hold 178 beds. This may take 18 months to open, but it will cycle hundreds of parolees that would otherwise go to a county jail. We are hopeful this will allow for community corrections, not the jails, to detain parolees for their directed programming and treatment. 3. A $45 million, one-time stipend to provide $5,000 to every local city and county full-time certified law enforcement officers. This payment will be taken from the state’s surplus when the fiscal year ends. Gov. Hutchinson has expressed this stipend is to “reward and incentivize those dedicated officers who keep our streets safe and our homes protected.” Our full-time law enforcement officers are appreciative of this kind recognition of their
service. Counties will need to do their part to assure they close the compensation gap as needed to recruit, hire, and retain law enforcement officers in Arkansas. 4. The Governor also implemented Act 786 of 2021, the
“Public Safety Grant Program.” This Act is to increase trust between the police and our communities, and to enhance availability of equipment for greater transparency and enhanced safety. The Governor proposed in the fiscal session to appropriate $10 million to fund equipment grant requests for law enforcement. This will be divided up to fund $5 million in equipment grant requests and $5 million for future grant requests. This was a recommendation given by the Advancement of
Law Enforcement Task Force.
Emergency Powers Act Releases
Arkansas has an Emergency Powers Act (EPA), which allows the Board of Corrections to declare a prison overcrowding emergency. Through this declaration, current inmates eligible for parole are released early to make room for more recently convicted criminals. According to Ark. Code §12-28-604, current class 1 and 2 inmates qualify for an EPA early release of one year if they have served at least six months in a division facility for a nonviolent offense. When this Act was enacted, the Legislature did not imagine the backlog would be so high, which has caused problems in applying the EPA to release current inmates.
Three hundred eighty-seven inmates are being released in the next 90 days despite many of them being convicted of a violent felony. At least 132 inmates out of the 387 being released are in prison for a violent felony. These felonies include, but are not limited to, sexual assault, aggravated assault, and aggravated residential burglary.
The violent convictions are not the only aspect that violate the EPA. Inmates qualifying for the 90-day EPA can get released 90 days before their actual release date if they are already approved for parole. Inmates qualifying for the one-year EPA release can only be let out up to one year before their actual release day. Felons, including violent offenders, are being let out after serving only 1/5 or 1/6 of their sentence.
On the next page is a table indicating how many inmates have been released early due to the EPA over the last 10 years. Act 418 of 1987 creates a threshold that is triggered when the ADC prison population reaches 98 percent rated capacity. Individuals eligible for parole may have their release date moved up to 90 days when this Act is triggered. Act 1721 of 2003 addresses overcrowding in county jails. The provisions in this Act are triggered when the county jail backup exceeds
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500 offenders. These individuals eligible for parole may be released up to one year early when this Act is triggered. This chart indicates there has been an emergency prison overcrowding since at least 2010 and separates how many offenders have been released under each Act. To have thousands of criminals, some with violent crimes and felonies, released early is a public safety issue and counteracts efforts put in place to deter crime. If an inmate will be let out significantly early, it does not have the same level of deterrence for the commitment of future crimes.
The intent of the EPA is to operate in cases of an emergency to benefit our state. However, the EPA in Arkansas is not a benefit. It is invoked for thousands of offenders routinely and periodically every year. This is indication that something is wrong with our prison system. The solution is to ensure there is enough room in prisons to hold all offenders for the bulk of their full sentence. The JFA consultants and corrections officials have testified before the General Assembly as to these important needs.
Conclusion
We’ve made substantial strides in recent years in corrections, community corrections, and behavioral health. The accomplishments have been the result of a working partnership with county officials, state officials, the Governor, and the General Assembly. The state of Arkansas in partnership with the counties has made strides in reducing the growth of the rate of crime in general. However, it remains that Arkansas ranks 4th in the United States in violent crime. Those at JFA Institute have predictably projected the state inmate populations. While the growth rate of violent crime is more manageable, the rate of growth directs that additional maximum security state prison beds are necessary. The recent proposals for adding state prison beds at Calico Rock will be of assistance. The addition of more treatment beds at the new community corrections facility at White River will also be of assistance for addressing the needs of parolees. However, more maximum-security state prison beds will be needed to address the projections of growth in violent state inmates, particularly over the next decade. County jails cannot sustain the current level of overcrowding due to state inmates being backed up into those facilities. Additionally, the catch and release of misdemeanors due to the overcrowding is no way to run a society. More importantly, Arkansans expect public safety to be the paramount priority. Continued early release of violent felons is not acceptable and is a contributing factor to Arkansas’ high ranking for violent crime.
Gov. Asa Hutchinson held a signing ceremony in the Capitol rotunda fol-
lowing the fiscal session to sign into law several bills that benefit law enforcement officers. Among them are measures to grant one-time stipends of up to $5,000 to police and probation and parole officers; increase salaries for Arkansas State Troopers and other certified law enforcement officers of the Department of Public Safety; funding for prison construction at Calico Rock; funding for five more forensic professionals at the Arkansas Crime Lab to complete testing of sexual assault kits within 60 days; and funding for equipment to keep officers safe.
