Dis­par­i­ties drive chal­lenges to law

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - JOHN MORITZ

Arkansas pris­on­ers sent away for life as teens were of­fered a new track to­ward pa­role el­i­gi­bil­ity ear­lier this year, but re­leases have been put on hold this sum­mer as some of these in­mates go to court to seek more fa­vor­able sen­tences.

The Fair Sen­tenc­ing of Mi­nors Act — en­acted by the Arkansas Leg­is­la­ture this spring in re­sponse to U.S. Supreme Court de­ci­sions — of­fered new terms to at least 42 con­victed mur­der­ers who had been sen­tenced to life with­out pa­role for crimes com­mit­ted be­fore their 18th birthdays.

The act would al­low them to be re­sen­tenced by a judge to life with the pos­si­bil­ity of pa­role. The in­mates would then have the op­por­tu­nity to go be­fore the Arkansas Board of Pa­role once they served 25 years for first-de­gree mur­der, or 30 years for cap­i­tal mur­der. Whether they are re­leased would be up to the board’s seven mem­bers.

In state pris­ons, eight in­mates have served enough time since their con­vic­tions as youths to be el­i­gi­ble for pa­role right away, ac­cord­ing to Gregg Par­rish, the state public de­fender co­or­di­na­tor.

Be­fore the new law took ef­fect, more than a dozen in­mates had al­ready re­ceived new sen­tences in state courts af­ter the U.S. Supreme Court’s 2012 de­ci­sion to out­law no-pa­role life sen­tences for mi­nors. In those sen­tence re­vi­sions, in­mates re­ceived ei­ther a term of up to 40 years or life with the pos­si­bil­ity of pa­role, lead­ing to sev­eral be­ing re­leased. No one has been re­leased un­der the new law.

The dis­parate treat­ments have raised ques­tions of fair­ness, and an­swers are be­ing sought from the Arkansas Supreme Court.

The Pa­role Board an­nounced June 27 that it was halt­ing all ac­tions un­der the new law, Act 539 of 2017, af­ter a pair of judges in Pu­laski County chal­lenged the retroac­tive ap­pli­ca­tion of sweep­ing sen­tence re­vi­sions.

In the more re­cent of the two cases, Cir­cuit Judge Wendell Grif­fen de­clared that Act 539 il­le­gally stripped the lif­ers of a chance to have their new sen­tences de­ter­mined by a judge or jury.

Grif­fen and Cir­cuit Judge Herb Wright have or­dered new sen­tenc­ing hear­ings in court for six in­mates, rather than giv­ing the sen­tence spec­i­fied in the new law.

Pu­laski County Chief Deputy Pros­e­cut­ing At­tor­ney John John­son has filed his in­ten­tion to ap­peal both cases to the Arkansas Supreme Court, which is in sum­mer re­cess.

At­tor­ney Gen­eral Les­lie Rut­ledge is eval­u­at­ing her of­fice’s op­tions, a spokesman said.

Kelly Knuck­les, an ex­ec­u­tive as­sis­tant to Pa­role Board Chair­man John Felts, said the agency had not yet pub­lished its July hear­ing sched­ule be­fore ceas­ing its work im­ple­ment­ing Act 539.

“The Pa­role Board will need to de­vise and im­ple­ment pol­icy changes pursuant to the new law,” Knuck­les said in an email. “Dis­cus­sions sur­round­ing any req­ui­site changes have be­gun and are now placed on hold un­til fur­ther rul­ing by the Courts.”

In Pu­laski County, John­son pro­vided the names of 17 De­part­ment of Cor­rec­tion in­mates sen­tenced to life with­out pa­role for crimes they com­mit­ted as mi­nors in the state’s largest county. (The list con­tained one name not counted by the state public de­fender co­or­di­na­tor’s of­fice).

Two of the names on John­son’s list had al­ready re­ceived re­duced sen­tences prior to Act 539, and one of the two was paroled.

Many of the con­victs were sent to prison in the 1990s, records show, when mur­der rates in Lit­tle Rock soared. Many face at least an­other decade in prison be­fore they are el­i­gi­ble for pa­role un­der Act 539. Only one in­mate from Pu­laski County would be el­i­gi­ble for pa­role this year un­der Act 539.

The U.S. Supreme Court out­lawed manda­tory life-with­out-pa­role sen­tences for mi­nors in 2012, in a case that over­turned the sen­tence of Arkansas in­mate Kun­trell Jack­son. The high court said in an­other rul­ing last year that its de­ci­sion ap­plied retroac­tively to more than 2,000 cases na­tion­wide.

Jack­son be­came the first pris­oner in Arkansas to be re­sen­tenced un­der the U.S. Supreme Court’s rul­ings. In 2014, he re­ceived a 20-year prison sen­tence from a Mis­sis­sippi County judge for his role in a deadly 1999 rob­bery, in which some­one else was ac­cused of shoot­ing a clerk. Jack­son, now 31, was re­leased from prison in Fe­bru­ary, ac­cord­ing to the Cor­rec­tion De­part­ment.

The Leg­is­la­ture de­clined to re­vise the life-with­out-pa­role sen­tenc­ing law for mi­nors in 2015. That left it up to the courts, pros­e­cu­tors and de­fense at­tor­neys to go through cases in­di­vid­u­ally and ap­ply new sen­tences.

With life-with­out-pa­role sen­tences and the death penalty off the ta­ble for mi­nors be­cause of the U.S. Supreme Court de­ci­sions, the in­mates re­sen­tenced be­fore the pas­sage of Act 539 were given the range of penal­ties for a Class Y felony, from 10 to 40 years or life.

Par­rish, the public de­fender co­or­di­na­tor, said in most cases the new sen­tences prior to Act 539 amounted to 40 years, with el­i­gi­bil­ity for pa­role.

Law­mak­ers who pushed for pas­sage of Act 539 said it would bring the state in com­pli­ance with the Supreme Court de­ci­sion and also spoke of the lack of de­vel­op­ment in the minds of young offenders.

The law re­quires men­tal-health eval­u­a­tions for youth­ful offenders be­fore they en­ter prison, with fol­low-ups when they are made el­i­gi­ble for pa­role.

But Par­rish — who keeps a lam­i­nated chart of all the cases af­fected by the Supreme Court’s de­ci­sion — noted that those still wait­ing for new sen­tences will not be able to go back in time to re­ceive eval­u­a­tions.

Af­ter Act 539 be­came law, de­fense at­tor­neys con­tin­ued to push for new sen­tenc­ing hear­ings. They ar­gue the law — and its strict 25- or 30-year pa­role el­i­gi­bil­ity stan­dards — gives an un­fair deal to in­mates who missed the op­por­tu­nity for a sen­tence in a term of years.

In the 2nd Ju­di­cial Cir­cuit in north­east Arkansas, for in­stance, four in­mates — in­clud­ing Jack­son — re­ceived new sen­tences prior to Act 539, ac­cord­ing to Pros­e­cut­ing At­tor­ney Scott Elling­ton’s of­fice. None of the four re­mained listed in the De­part­ment of Cor­rec­tion in­mate ros­ter last week, in­di­cat­ing they had been re­leased.

An­other four in­mates in the six-county cir­cuit re­main el­i­gi­ble for new sen­tences, but, if sen­tenced in ac­cor­dance with Act 539, they would still have to spend years in prison be­fore they are el­i­gi­ble for pa­role.

“They’re not all be­ing treated alike,” Par­rish said. “We con­sider these to be a group.”

Act 539 pro­hibits credit for “good time” in prison from be­ing cal­cu­lated into pa­role el­i­gi­bil­ity. The law re­quires the Pa­role Board to con­sider how the mi­nors be­have dif­fer­ently from adults.

Pros­e­cut­ing at­tor­neys, as well as the vic­tim’s fam­ily, are of­fered the op­por­tu­nity to op­pose pa­role at a hear­ing be­fore the board.

“What some of these in­di­vid­u­als did, they ought to never get out,” said Wash­ing­ton County Pros­e­cut­ing At­tor­ney Matt Dur­rett. “No court said they had to be re­leased, but the court did say they had to have the op­por­tu­nity for re­lease.”

Two Wash­ing­ton County men who have served a to­tal of more than 68 years in prison for mur­ders they com­mit­ted as teens were made el­i­gi­ble for pa­role this sum­mer un­der the law.

Christo­pher Segerstrom led a 4-year-old girl into the woods in 1986, where he sex­u­ally as­saulted and killed her. Segerstrom was 15 at the time.

In the other case, Cir­cuit Judge Mark Lind­say re­sen­tenced James Van­cleave to life with a chance of pa­role un­der the new law. Van­cleave was con­victed of stab­bing a con­ve­nience store clerk to death in 1978, when Van­cleave was 16.

Judges are pro­ceed­ing along dif­fer­ent routes han­dling Act 539 cases, said Lori Kumpuris, the deputy pros­e­cu­tor co­or­di­na­tor for the Arkansas Pros­e­cut­ing At­tor­neys As­so­ci­a­tion.

They are ei­ther im­pos­ing the sen­tences in the law as in the Wash­ing­ton County cases, or­der­ing re­sen­tenc­ing hear­ings as is the case for two Pu­laski County judges, or wait­ing on di­rec­tion from the Arkansas Supreme Court when it rules on the Pu­laski County cases.

In ad­di­tion to va­cat­ing no-pa­role sen­tences given to mi­nors, Act 539 also made in­mates serv­ing decades or life in prison for non­homi­cide of­fenses el­i­gi­ble for pa­role af­ter 20 years.

The De­part­ment of Cor­rec­tion has iden­ti­fied 92 in­mates whose cases would be af­fected by that part of the law, in some form, ac­cord­ing to prison spokesman Solomon Graves.

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