APPARENT ILLEGALITIES OF SENTENCING & EXECUTIVE CLEMENCY PRACTICES IN ARKANSAS - Apparent Illegalities Part 2 - Government - http://maxpages.com/darkevilworld/Apparent_Illegalities_Part

III. POTENTIAL LEGAL LIABILITY OF ARKANSAS GOVERNORS REGARDING EXECUTIVE CLEMENCY

Although the courts could never order a governor to exercise the executive power to grant or deny clemency per se, it appears that because Arkansas has such an odd legal system (as legal systems go), a governor in Arkansas may actually become civilly liable in a lawsuit for damages if he fails to act to correct or to eliminate a true and proven sentencing injustice for any offender in this state. The election of a person as Governor not only creates powers and privileges, but duties as well. Consequently, Arkansas’ Governor has a duty to correct all true sentencing injustices in a way that is not necessarily true for any of the other states’ governors, nor for the President, ESPECIALLY if the courts or the Attorney General have failed to do so in a given case. This is so because, unlike almost all other states, Arkansas has a “jury sentencing” system, wherein jurors are the official statutory sentencing authority; and because Arkansas seems to be the first and only state wherein the Legislature itself expressly COMMANDED THE COURTS to “eradicate disparate punishment for comparable criminal conduct” as a matter of legislative design, and because Arkansas appears to be the first state to have enacted laws by which to transfer that power and duty directly and explicitly to the courts.

The unusual situation in Arkansas, making a governor potentially civilly liable for refusing to act to correct an unjust sentence rests in part in the fact that prior to 1993 Arkansas jurors could not AS A MATTER OF LAW, be told at trial about the execution terms of any sentence they might impose, despite the fact that in Arkansas it is the jury itself, not the trial court, that is the sentencing authority. Jurors were told at trial, by force of law, that parole, good time credits, and a host of other sentence qualifiers were none of their business. Connect that to the pervasive lie that the public, and jurors drawn from the public has commonly believed that all sentences except those for capital murder were subject to parole eligibility. It is therefore not at all difficult to understand why sentencing injustices became so widespread in Arkansas, nor to understand why the Arkansas General Assembly declared the legislative intent to “eradicate disparate punishment for comparable criminal conduct” when comprehensively replacing the former criminal code with the 1977 Criminal Code and then expressly vesting the courts with that power and duty.

A governor’s potential civil liability relative to executive clemency in Arkansas also has root in two even more fundamental elements of the state Constitution. Under Article II, Declaration of Rights:

“Section 13. EVERY PERSON is entitled to a CERTAIN remedy in the laws for ALL injuries or WRONGS he may receive in his person, property or character: he ought to obtain justice freely, and without purchase, COMPLETELY, AND WITHOUT DENIAL, promptly and without delay.”

“Section 29. This enumeration of rights SHALL NOT BE CONSTRUED TO DENY or disparage others retained by the people: and to GUARD AGAINST ANY ENCROACHMENT on the rights herein retained, OR ANY TRANSGRESSION OF ANY HIGHER POWERS HEREIN DELEGATED, we declare that EVERYTHING IN THIS ARTICLE IS EXCEPTED OUT OF THE GENERAL POWERS OF THE GOVERNMENT, and SHALL FOREVER REMAIN INVIOLATE; and that ALL LAWS CONTRARY thereto, or other provisions herein contained SHALL BE VOID.” (Emphasis mine.)

What these two sections alone could do to dismantle the good ol’ boy system in Arkansas is astounding but, of course, the good ol’ boys generally don’t “see” these particular sections of the Constitution, nor understand the rather difficult language of these sections. Even more important, they generally run the courts as well. Yet, ALL means ALL, and SHALL means SHALL. Basic English 101. Indeed, based on these clear unambiguous clauses, I have often wondered if the framers did not include them precisely to prevent the good ol’ boys’ rise to power and was perhaps why it was declared that “government should be of laws rather than of men.” There are several hundred laws in Arkansas that by those clauses alone were void before they were even written.

In the context of the inherent injustices of Arkansas’ sentencing and executive clemency nightmare, Section 13 does need to be “interpreted” in a couple of areas. After all, “certain” remedy can mean a lot of things, as well as what constitutes a “wrong”. To cut to the quick, for purposes here, a prisoner’s right relative to AND the potential legal liability of a governor in the context of executive clemency are both contained in the declare legislative intent to “eradicate disparate punishment for comparable criminal conduct”, or inversely, “to realize the imposition of comparable punishment for comparable criminal conduct”. Surely a legal “wrong” suffered by someone under Section 13 of Article II of the Constitution would be one that the Legislature itself has declared to be wrong, and one it commands to be eradicated if it is discovered. In fact, looking at it another way, in any case where a person can objectively prove that a criminal sentence was “disparate for comparable criminal conduct” there is NO LEGISLATIVE AUTHORITY either to have initially imposed, or to maintain such a sentence. I cannot emphasize that enough.

B. ARKANSAS’ LEGISLATIVE COMMAND TO ERADICATE DISPARATE SENTENCES

As explained in the sister article to this one, (“Arkansas’ Clemency Carrot”) the reason the 1977, and later, the 1993 Legislatures even expressed the intent to eradicate disparate punishment is because, when rewriting the criminal code, lawmakers had noted that under the less extreme (but still harsh) former criminal code, felons in different parts of the state were being sentenced to radically different sentences for essentially the same criminal conduct, in a manner that made evident that ethnic, social and other factors often dictated the sentence, rather than the law.

In Fort Smith, for example, a community that has traditionally felt compelled to implement the “Hanging Judge Parker” mentality, born out of the western era. Virtually every offender (and especially those not from that area) would be given maximum or near-maximum sentences for every offense across the board, regardless of the “range” of penalties from which jurors were supposed to “tailor” each sentence to fit the specific crime and offender. In places like Little Rock, however, offenders appeared to be more “individually” and fairly sentenced according to the inherent nature of the offense itself, or pursuant to their individual offender histories. “Hard-liners” say this only evidences that they are “bleed heart liberals.”

On a state-wide basis, the common extremes in sentencing occurring in Fort Smith and several other Arkansas “tough on crime and criminals” communities resulted in the untenable and inherently unjust situation that a petty thief in Fort Smith would often be given a much greater sentence than a murder defendant in Little Rock or Hot Springs; an embezzler in Jonesboro would be sentenced to two and three times the punishment that the child molester or rapist in Texarkana or West Memphis would receive. In other words, it is not an issue that some Arkansas juries were “tough on crime and criminals”, and thereby applauded by some, nor that people in Little Rock were “liberal”, and therefore scorned by some. Rather, the people of Fort Smith and similar places simply disregarded (or never knew about), the legislative intent to impose just and “tailored” sentences on every offender according to his crime and history, while Little Rock was, in fact, IMPLEMENTING that legislative intent, although not consciously aware of the legislative intent.

The net and tragic result was that the entire criminal code AND the legislative intent was turned upside down and was rendered INHERENTLY UNJUST, simply because defendants around the state were not only getting disparately punished for COMPARABLE criminal conduct, but were irrationally punished more severely than offenders perpetrating vastly more heinous or aggravated crimes. This condition in Arkansas is why I, myself received a sentence more severe for a robbery involving a water pistol and the theft of $264, than several multiple-victim murderers or serial rapists have received. It becomes a serious matter indeed when one considers not some isolated incident, but the STAGGERING VOLUME of injustice being perpetrated across the entire state of Arkansas during the past 25 years or more.

It is THIS inherently unjust situation that compelled the 1977 Legislature to declare the intent to eradicate any disparate sentence under the new criminal code, especially where the penalties available to jurors for all offenses were so RADICALLY INCREASED under the new code. Recognizing that jurors likely always would at least be potentially subject to localized or private passions in sentencing offenders, the Arkansas courts were expressly charged with the power and duty to serve as “check and balance” against future abuses of the sentencing code by jurors, so that the irrational, perverse and unintended juxtaposed penalties so commonly manifested under the former criminal code would not resurface under the new. Jurors were expected to impose sentences on the minimum end of the ranges for common and unaggravated incidences of the generic offense, while reserving the maximum penalties for the most heinous, aggravated and malicious offenses.

In reality, however, jurors in Fort Smith and similarly “conservative” communities STILL were going to be tough on crime and criminals to extremes, while Little Rock and other places continued to fairly tailor sentences to fit the crime and the offender, as intended. Within two or three years of the new code, hundreds of offenders sentenced to the Arkansas Department of Corrections (ADC) were serving constructive death sentences in prison for relatively minor offenses, while many killers, rapists and child molesters could parole in some reasonable time, simply because the had the “fortune” of having committed their offenses in areas of the state more free from certain fears, hates, prejudices and hypocrisies.

C. JUDICIAL EVASION OF THE LEGISLATIVE COMMAND AND INTENT

In order to empower the courts with the ability to implement the legislative intent to eradicate the injustice of jurors imposing disparate sentences for comparable criminal conduct all around the state, former Criminal Rule 33.22, long since quietly abolished, was implemented. In essence, this Rule allowed any court to alter any sentence that it felt “ought not to have been inflicted” in a given case EVEN if the sentence was otherwise within the statutory range of penalties available for the offense, and EVEN if the trial was otherwise free of error.

However, despite laws such as this, the Arkansas good ol’ boy courts thereafter simply WOULD NOT eradicate a disparate punishment for comparable criminal conduct even when it was OBJECTIVELY PROVEN or manifestly evident that the sentence imposed did violate the legislative intent, and continued disparate punishment for comparable criminal conduct.

For a recent example see HENDERSON V. STATE, 322 ARK. 402, 910 S.W.2d 656 (1995)

In this case the majority of the state Supreme Court affirms a life without possibility of parole sentence for a first offense of selling a $20 “rock” of cocaine (.238 grams), but the dissenting Justice exposes the inherent injustice and perversity of the extreme sentence.

On a local level, trial courts would not correct disparate sentences in large part, I believe, because judges are elected to office by the voters, and in Arkansas registered voters are the only persons allowed to sit on juries. So, no matter how a trial court phrased it, in order to eradicate an excessive and unjust sentence in any case the judge would actually be telling his own voter constituents, “You messed up, and you broke the law by imposing such a disparate sentence in this case.” That is obviously a politically untenable thing to do, especially given that when a disparate sentence was in fact imposed, it was likely the result of passion and prejudice of the jury in the first place, rather than an unwitting result based on a lack of sentencing information. It would be a rare judge, indeed who would risk upsetting his own voters for the sake of an offender, especially where the trial was otherwise fair and proper. However, what kind of justice would there be if a defendant convicted of “loitering” received a FLAWLESSLY fair trial and then was sentenced to the electric chair?

At the Arkansas Supreme Court and Court of Appeals level, the judges refused to implement the legislative command in large part because it meant doing a lot of work. Proportionality reviews take time, and require the keeping of painstaking and detailed trial district and state-wide sentencing pattern records, etceteras. The Arkansas Supreme Court also had a “convenient” apparent legal excuse for not doing what the Arkansas General Assembly commanded it to do. In a nutshell:

During the civil, human and prisoners’ rights movements in America, spanning well into the 1980s, several precedents had issued from the United States Supreme Court regarding concepts like “cruel and unusual punishment”, and the role of the judiciary in the criminal sentencing process. The 8th Amendment, it was said, did not concern itself so much with the DURATION of a punishment, but with the KIND of punishment. Loosely translated, this meant that depriving someone of food, water, or shelter could be “cruel and unusual”, while sentencing offenders to prison terms until dead did not.

A more subtle example: A teenage offender sentenced to 20 years in prison could, barring unforeseen circumstances, eventually regain his place in the community, while a 65 year old man sentences to prison for 20 years would likely die in prison due to general life expectancy averages. Since capital sentences bore an irreversible finality, they also came under 8th Amendment scrutiny because of the KIND of punishment that a death sentence constitutes.

In regard to the judiciary’s traditional role in the sentencing process, it was first a legal principle that judges are “presumed to know” the law, and to properly apply the law in cases over which they preside. Since in most U.S. jurisdiction the judge, not the jury is the official sentencing authority, appellate level courts all around the country ruled that a trial judge is in a much better position to know the details and circumstances of both an offender and the particular offense being prosecuted, so that when the court imposes any given sentence it is presumed that the judge accurately knew any “sentence qualifying” laws that applied; such as how much good time the offender could earn or when parole whether or not parole was possible. Therefore, it would be presumed that a judge-imposed sentence was individualized to the particular offense and offender history. For this reason, as long as a trial court’s imposed sentence did not exceed a penalty exceeding a penalty authorized by the sentencing code, per se, the judiciary was NOT to “engage in line drawing between sentences on a case-by-case” basis to decide which sentence might be a little severe or possibly somewhat extreme. Moreover, these principles as applied to a sentencing COURT were reasonable and just. They were NOT responsible in Arkansas where the generally uninformed jury was the sentencing authority.

In 1983, in the case of Solem v. Helm, 463 U.S. 277 (1983) originating in South Dakota,

View this U.S. Supreme Court decision

the Supreme Court was compelled to change its position somewhat, holding that the 8th Amendment’s “cruel and unusual punishment” proscription perhaps could sometimes involve the DURATION of a sentence. In a manner similar to Arkansas, more and more state legislatures were implementing laws so general and so severe in potential penalty that real injustices were occurring all around the country. Solem had been sentenced to MANDATORY life imprisonment WITHOUT POSSIBILITY OF PAROLE for writing a “hot check” just pennies over the statutory line between felony offenses and misdemeanors. However, it was Solem’s “third strike”, and state law required his mandatory imprisonment without possibility of parole. Had each of the forged checks been only a few CENTS less in value, Solem would maybe have gone to county jail for a few months or simply have been ordered to pay restitution. So, the court declared Solem’s MANDATORY life imprisonment “cruel and unusual punishment”, both because it was a mandatory sentence in which the trial court had no discretion, AND because it was “without possibility of parole.” That decision also established objective criteria that other courts would then use in ‘testing” other sentences under other circumstances that might constitute cruel and unusual punishment.

Shortly before Solem was decided, a Texas “first time offender” had challenged his own life sentence alleging that it was “cruel and unusual” punishment. In RUMMEL V. ESTELLE, 445 U.S. 263 (1980) the United States Supreme Court held that Rummel’s life sentence was subject to parole eligibility in as few as twelve years.

View this decision

This separated it from the sentence in SOLEM both in duration and kind. RUMMEL has also reaffirmed the long-standing principle that judges should generally not engage in “line drawing” between sentences IMPOSED BY OTHER JUDGES, and as long as the sentence was generally within the limits set by the legislatures, the higher courts would not intrude upon the penalty judgment of the trial courts.

In the meantime, in Arkansas both the SOLEM and RUMMEL principles were routinely violated simply because Arkansas jurors were unwittingly condemning people to prison to die even for minor offenses, while life terms and many constructive life sentences in Arkansas could NOT be paroled, regardless of the offense for which they were imposed. Of course, in Arkansas either of these holdings would further be qualified by the fact that no sentence needed to be as “extreme” as that in SOLEM to be illegal in the first place, simply because the Arkansas legislature intended to see eradicated ANY sentence that was “merely” disparate for comparable criminal conduct. The issue of “parole” per se was not even relevant. The General Assembly simply wanted offenders with the same essential crimes and offender histories to be fairly equally punished, while PREVENTING situations where persons convicted of relatively minor or mitigated crimes would be punished vastly MORE severely than felons committing truly heinous or malicious offenses.

Yet, it is these principles and decisions (SOLEM and RUMMEL and their progeny), upon which the Arkansas good ol’ boy courts then relied when REFUSING to correct excessive sentences in Arkansas; that is, sentences that were clearly disparate for comparable criminal conduct,

See again Henderson v. State

They repeatedly held that many other courts had ruled that courts were not to engage in case-by-case line-drawing between sentences, and that as long as the sentence imposed upon an Arkansas defendant was within the “range” of sentenced authorized for the generic crime by the statutes, they would not alter even “harsh or extreme” sentences(carefully avoiding the
words “excessive”, “disproportionate” or “disparate”).

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