APPARENT ILLEGALITIES OF SENTENCING & EXECUTIVE CLEMENCY PRACTICES IN ARKANSAS - Apparent Illegalities Part 3 - Government - http://maxpages.com/darkevilworld/Apparent_Illegalities_Part

It cannot be emphasized enough that even though these precedents (RUMMEL & SOLEM and progeny) regarding other jurisdictions were completely reasonable and proper elsewhere in the United States, it was innately wrong to apply them in Arkakansas. This is so because, again, in Arkansas the jury itself was the sentencing authority, not the trial judge. Not only can common jurors not be “presumed” to know the myriad of laws that qualify any sentence like could a court, but the public, from which jurors are drawn, has historically suffered under a pervading and insidious lie and misconception about the true execution terms of sentences in this state - caused almost exclusively by sensationalized media reporting and political hyperbole. The reader should fairly acknowledge that the common person is not a student of law in general, nor studies his state’s criminal code in detail, so the common source for information about “crime and punishment” is almost exclusively the evening news or newspapers.

Second, to compound the injustice that jurors rarely, if ever, could impose a truly “knowing and intended” punishment in ANY case, simply because they lacked knowledge about all the hidden and other laws that qualify every sentence. Jurors insanely also could NOT BE TOLD AT TRIAL about how any sentence would actually be executed. It was illegal for the courts to fulfill the jurors’ request. This perversity in law was finally changed in 1993, in part as a result of my own legal efforts, and jurors are now required to be given at least a FEW facts qualifying the sentence.

And, third, it was improper to apply these extrajurisdictional authorities to Arkansas precisely because, unlike the legislatures in any of the other U.S. jurisdictions, the Arkansas General Assembly specifically empowered and commanded the Arkansas courts to “draw lines on a case by case basis” to determine whether a sentence in a given case was “disparate for comparable criminal conduct”, and then to eradicate it if it was. That was precisely what other courts ruled should NOT be their SELF-ASSUMED function. They did not confront the situation where the legislature expressly commanded this to be done in order to provide a “check and balance” against wayward jury-imposed sentences. Moreover, this was a lawfully implemented check and balance by which the Arkansas Legislature would continue to allow jurors to have a great discretion in, and great range of punishment available from which to “tailor” a proper sentence in each case. Abuses were to be guarded against by the courts, not only in individual cases, but state-wide and over time. The statistical “clusters” that would objectively demonstrate whether any offender’s sentence was “disparate” would only form over time, and by the keeping of accurate sentencing records, at least comprehensively including cases actually heard on appeal, like HENDERSON. If an offender’s sentence radically deviated from the baseline cluster, then it was disparate.

The following example demonstrates what constitutes a disparate sentence, so that the reader can understand the meaning of the various principles at issue in applied terms in regard to other sentences:

When I was sentenced to life imprisonment without possibility of parole, in 1981 for robbing a fast-food restaurant of $274 while armed with a water pistol, I was the first defendant in the history of the state of Arkansas to be given such a sentence for “comparable criminal conduct.” This was so, in part because, until the 1977 criminal code revision, the maximum penalty for ANY robbery offense was 21 years, even where real weapons were used, or where actual violence was perpetrated against the victim(s). In 1977 the General Assembly created the offense of “aggravated robbery” wherein an offender would be technically guilty of this Class A (now Class Y) crime even if he merely “represented by word or conduct” that he was armed. A hand in ones pocket, or an object protruding (like a wallet or a pack of cigarettes) would technically make the offense an aggravated robbery. Several lawmakers protested this law because of its potential for abuse, especially the fact that the SUBJECTIVE impression of a victim could determine the charge, instead of the objective conduct by the offender. (See Ark. Law Review, Legislative Notes, Vol. 30, p. 209 (1977).) Aggravated robbery also carried a possible sentence of EITHER a $15,000 fine, OR from 10 to 40 years, OR life imprisonment (without parole) OR BOTH.

By the time I was able to appear in federal court, seven years later, (in 1988) I adduced STATISTICAL proof that not only was I the only defendant in the Fort Smith trial district ever to have received life imprisonment for comparable criminal conduct, but anywhere in the state of Arkansas (to that date) as well. I was also the only defendant in at least 44 other U.S. jurisdictions that had been sentenced to life imprisonment without parole for a robbery in which no real gun was used. This was so because in those other 44 states a life sentence was not even possible under their statutes for this kind of offense. Then, although an equivalent sentence was in fact “possible” in the remaining five states and three territories, I could not find a single incidence of it having actually been imposed, and the STATE’S attorneys could not come up with one to counter my evidence.

On a philosophical level this data implied that I was the only offender in the entire United States that was currently serving a life without parole sentence for a water pistol robbery where no actual threats were made and where no one was physically harmed. There simply is NOTHING about my offense, my past, or my person that warrants THIS DEGREE of “selectiveness” of punishment even on a NATIONAL scale.

Still other elements speaking to the disparity of my sentence included the fact that my four “accomplices” were each given five years suspended, that even robbery-murder defendants appearing before the SAME judge and prosecutor that tried me had received SUBSTANTIALLY less time, and that some of my own jurors admitted that they had had no intention of sentencing me to die in prison for my offense. They had believed that I should be required to serve the six or seven years it would take for me to become eligible for parole on a life term. Also, although I had been in trouble before as a young man, those offenses likewise did not involve overt threats or violence,

View Kaestel v. State

My sentence actually and technically EXCEEDED the legally authorized sentence for a multiple-victim capital murder, except where a death sentence was imposed!

Finally, in 1988 it was statistically shown that the standard deviation of my sentence was 12.90 (.005 being scientifically significant), and that the average sentence imposed upon Arkansas defendants was 30 years imprisonment. This figure INCLUDES sentences imposed for multiple counts of aggravated robbery (or several mixed offenses in the same episode), robberies where real weapons were used, robberies where victims were shot, stabbed, beaten, or even killed, and robberies by offenders with up to 18 prior felony convictions.

Without question, NO ONE can deny that this sentence constitutes one that is disparate for comparable criminal conduct and, thereby, is the object of eradication by legislative command. I know that the reader may wonder why this insane sentence has not been corrected even after 18 years, but that account should be given at another time. Suffice it to say only that the ADC (which was under a declaration of being unconstitutional AS A SYSTEM en toto, and upon which federal court ruling the name of this site is based) forbade me access to a typewriter, while the appellate court REFUSED to file handwritten pleadings on appeal, thereby creating a technical “procedural block” in later courts. Then, the courts overruled several major precedents that had been in my favor by 1988.

The United States Marshall’s Service “lost” my petition to the United States Supreme Court for three weeks, thereby making it jurisdictionally “untimely” received, and even though I produced proof of certified mail receipts showing timely mailing to and receipt by all other parties, the Justices would not issue the order to compel the Clerk to file the petition belatedly (although Justices dissented from that denial). ONLY THEN was I contacted by the Marshall’s Service telling me “Oops, sorry” that the envelope with my petition had been in their building there in Washington, D.C. all the time and that they had then (belatedly) sent it to the Clerk upon discovering their error.

It must be acknowledged that prison and other officials and clemency boards get VERY UPSET when “criminals” expose their corrupt and illegal acts (such as by way of this web site and through litigation) and that the basis for legal avenues by which to be vindicated once the DIRECT court battle was over, were not discovered until years and years of research later. Clinton’s election as President and Jim Guy Tucker’s criminal convictions for all practical purposes mooted the claims against them. So, the first nine years were lost due to the lack of a typewriter mail lost in the U.S. Marshall’s office, and the second nine years was lost due to good ol’ boy events. However, this is a new day, a new time and a new forum, impossible for “the system” to obstruct, manipulate or suppress.

D. DUTIES AND ABSOLUTE QUALIFIED IMMUNITIES

Article VI, Sections 2 and 8 of the Arkansas Constitution make it a primary duty of the Office of the Governor to act as the magistrate for all affairs of state, and that includes the duty, by whatever lawful means, to cause to be administered whatever laws the Legislature passes. In other words, a governor’s primary and specific duty of office is to implement the legislative command. It does not matter that he may personally agree with a law or process, he must cause the “will of The People”, as voiced through the General Assembly, to be implemented. That’s his job and a big reason there’s a governor in the first place.

Generally, a governor has what is called “absolute immunity” from lawsuits for any actions or omissions that are done in his official capacity as governor. However, such immunity does not protect acts that constitute malfeasance of office or refusal or failure to perform a duty of office. Even a governor cannot use the official cloak of his office to evade a duty for personal or private reasons in his “individuality.” Because of the laws that do exist in Arkansas, a situation is created wherein a governor’s failure or refusal to correct of to eliminate an unjust sentence appears in fact, to leave him civilly liable.

Any legal claim filed against the governor in the context of denying executive clemency in a case of a disparate sentence must first assert and prove three objective things:

1) That the 1977 and 1993 General Assemblies expressly declared the legislative intent to “eradicate disparate punishment for comparable criminal conduct”, (which really means that a disparate sentence is illegal and has no authority for existing at all.)

2) That the plaintiff’s sentence is indeed objectively disparate for comparable criminal conduct, and is therefore illegal because it is the object of eradication.

and

3) That the governor’s primary constitutional duty of office is to implement the legislative command, that is, to eradicate disparate sentences and, conversely, to ASSURE the imposition of “comparable punishment for comparable criminal conduct."

If these three basic elements are proven by the plaintiff(s) as asserted, then the only significant remaining legal question of the governor is, “WHY are you not eradicating this disparate sentence as your duty of office?” True, the trial and appellate courts were charged with it and failed or refused to do it, and the Attorney General was charged with it and failed or refused to argue in favor of doing it, but neither of these entities can legally be removed from behind the 11th Amendment’s “absolute immunity” protections. More important, these others’ failure or refusal to do it or act toward doing it does not eliminate the governor’s duties, it merely calls them that more to the fore, simply because he is at the top of the constitutional pyramid. Others’ irresponsible passing of the buck to him can be left for him to deal with in some other way.

Those immediately below the governor, (i.e., the courts and the Attorney General) also cannot be sued because the legal rulings they make or follow in refusing to implement the legislative command are per se a function of their “official capacities” as judges or state lawyers, even if they are wrong, while being at the top of the constitutional pyramid, the governor’s “official” duty of office is to eradicate a disparate sentence by whatever lawful means are available. The most common and easiest means being the granting of clemency via the executive power. If the courts or the Attorney General REFUSE to do it, they are acting in their “official capacity” even if they improperly do it. If the governor refuses to do it, he is simply using the shield of office to avoid the duty of office for reason of his or her personal and individual interests, such as not getting the people angry with him, that they will re-elect him. However, the Constitution does not allow an evasion of the duty of public office to further one’s personal, political or other pursuits, and the 11th Amendment does not create a protection for those things.

In filing such a lawsuit against the governor, it would of course be silly for a plaintiff to ask the courts to order the governor to exercise the executive power, that is to per se grant a clemency in order to eradicate a disparate sentence. No court can order the governor to do that because of the separation of powers doctrine. However, a court CAN issue a “declaratory judgment” finding that the Legislature did declare the eradication of disparate punishment as a part of the statutory design, and that to implement that command is in fact an official duty of office of the governor. It can find that the petitioner’s sentence is objectively proven to be disparate for comparable criminal conduct, and that the governor’s refusal to cause the eradication of that disparate sentence (like by reducing it to one that is comparable for comparable criminal conduct) is not being done by virtue of his official capacity and, therefore, absolute or qualified immunity protections do not apply and damages may be obtained for the refusal and/or continued refusal to implement the legislative command. This declatory judgment then sets the stage for the next legal step; concurrent relief under the state’s mandamus or similar process.

The writ of mandamus is exclusively for the purpose of compelling officials (entities of government) to perform official duties that are ALREADY ESTABLISHED at law, not to establish new duties) or, in this case, to compel a governor to perform his duty to eradicate a disparate sentence. The premises proven, a court could and would be legally required to order the governor to do exactly that. Again, the court could not order the governor to specifically exercise the executive power in order to fulfill his legal duty, but that does not mean that the court can not generally order him to do his job, without reference to what specific means he will use to do it. A governor has many tools available by which to assert his powers and duties, including the veto power, the power to propose legislation, the power to call special sessions, or the power to commute a sentence via clemency. Legally, it doesn’t matter how the governor eradicated the unlawful sentence, only that he does it. Otherwise, he must answer to civil liability for malfeasance, or for contempt of court and the like.

The only real difficulty in proving the three elements of the basic issues is that it would take a lot of work and homework for any litigant to actually prove that his or her sentence is disparate for comparable criminal conduct. The Legislative intent to eradicate disparate sentences and to realize the imposition of comparable punishment for comparable conduct may be found in several sources, beginning with Arkansas Law Review, Legislative Notes, Vol. 30, p. 209 (1977) and Ark. Code Annotated 16-90-801(b)(1)(1993). The duty of a governor to implement the legislative command as the third element begins in Article VI of the Arkansas Constitution and has been thoroughly delineated elsewhere at law.

Also, everyone must understand that in order to initially determine whether one’s sentence is disparate, it absolutely must be compared to as large a body of other people’s sentences for the same essential offense as possible. (Like HENDERSON v. STATE.)

View this decision:

The plaintiff’s sentence must be shown to be one of a kind, or that he is one of only a tiny handful of people who were sentenced radically different from all other offenders for that general crime, or in contrast to other, greater crimes, AT LEAST WITHIN THE TRIAL DISTRICT, but preferably within the entire state of Arkansas, and even on a national level, as shown by the example of my own sentence.

In other words, it must be objectively and STATISTICALLY shown what the “cluster” for the common sentence for the crime is or was, and thereby that the sentence stands far out from that “norm” cluster for no legitimate and objective reason. Only if the sentence radically deviates from that cluster would it be “disparate for comparable criminal conduct” and the object of eradication by legislative command. It would thus become the duty of the office of the governor to eradicate by constitutional demand.

I should also point out again that sentencing abuses have gone unchecked in Arkansas for almost 30 years and have so obscured what would otherwise be a statistically provable “comparable punishment for comparable criminal conduct” scale, that it would be exceedingly difficult for anyone sentenced in the past few years to prove a disparate sentence. After all, when excessive sentences have become the status quo, even in complete defiance of the legislative intent, it is rather hard to show that any given sentence significantly “deviates” from the norm and is thereby disparate for comparable criminal conduct. HOWEVER, anyone sentenced to prison in Arkansas since 1977 who can prove that his or her sentence was disparate for comparable criminal conduct AT THE TIME IT WAS IMPOSED still has a valid legal claim, because the duty of the governor to eradicate a disparate sentence, that is, to implement the legislative command, is perpetual. It does not matter WHEN the disparate sentence was imposed, only that WHENEVER it is discovered or brought to the governor’s attention it must, by legislative command, be eradicated. I deliberately omit the fact that the courts likewise would be compelled to correct it, but due to procedural requirements courts either would not or could not “hear” the claim under any common vehicle for litigation. This means outside an action against some party like the governor. The disparity of a sentence proven to be such WHEN IT WAS IMPOSED is not made less disparate simply because it would no longer be disparate if it were imposed today.

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