APPARENT ILLEGALITIES OF SENTENCING & EXECUTIVE CLEMENCY PRACTICES IN ARKANSAS - Apparent Illegalities Part 5 - Government - http://maxpages.com/darkevilworld/Apparent_Illegalities_Part

DISCUSSION OF PRACTICAL RESULTS & GAMBITS

Given this jumbled and twisted state of affairs, it should be fariirly evident that regardless of the strength and accuracy of the legal issues involved, it would be a rare court that would exhibit the courage to actually advance this kind of action. It threatens to step on too many good ol’ boy toes, from the trial courts to the appellate courts, to the prosecutors, to the Attorney General and his staff, and to those of the Executive Clemency Board. It would unravel 30 years of legal rulings that, although they are just so much useless verbiage in the first place, nevertheeless continue to be the official force of law (e.g., HENDERSON V. STATE).

However, assuming that a really competent attorney or law firm could accomplish the uphill climb, AND the case actually found its way into a fair judge, an actual legal judgment might have very little practical effect. One or a few prisoners with disparate sentences might actually get the sentences reduced to something that is comparable for comparable criminal conduct, and a few policies, laws and practices might be abolished; like Acts 5 of 1993 and Act 498 of 1999, or the “must serve twelve years before being “favorably considered” policy, or the practice of the Board voting to grant or reject clemency based on criteria CREATED BY THE BOARD (instead of just preparing an objective report from which the Governor can make up his own unilateral decision unhampered by the “political” impact of the Board’s vote).

Such a lawsuit would likely take several years to resolve, within which time the plaintiff may well be dead and the issue mooted. Nevertheless, if nothing at all is done to stand up to the twisted system, it will continue as it always has. Even a governor who is not one of the good ol’ boys and who would see the inherent injustice and perversity of it all might think twice before he turns a blind eye if multiple thousands or millions of dollars in personal liability may be on the line.

Beyond that, litigation of this kind may well also arm a governor to gain a leverage against political opponents in a way that will silence them. Currently, if the governor went to lawmakers and asked them to do something about this clemency mess, like rewriting the criminal code or making all sentences in Arkansas subject to parole eligibility at some (even distant) time, certain lawmakers would be up in arms about it and would doubtless publicly accuse him of being a “bleeding heart liberal.”

The ADC ever has been a nice treasury for muddy and bloody hands to pilfer, and as the second or third largest employer in the entire state of Arkansas, there is every vested interest not only in keeping the monster going, but to help it grow. However, if the governor’s own integrity, civil liability, and pocket book is on the line, none of his opponents can fault him for compelling needed changes in the laws, and no one would dare to. Governor Huckabee has shown an inclination to use the law against opponents, and this clemency situation may be no different. He refused to disclose to the Attorney General’s office the names of the parties who were giving the Governor “Hot Line” information on corruption in state government, and he sued the State Ethics Committee regarding some of their acts or omissions.

VII. POTENTIAL ILLEGALITIES OF THE 1969 PAROLE ON LIFE & ELIMINATION OF PAROLE LAWS

The reader is cautioned that what is said immediately below about Acts 50 and 1168 is largely SPECULATIVE. Whether this issue should be legally pursued be determined after a proper investigation by a qualified researcher with access to records and authorities that prisoners simply may not access.

In 1969, in Act 50 of that year, the Arkansas General Assembly made all life sentences in Arkansas subject to parole in 15 years. However, under Act 50 a prisoner could also earn up to, but not more than five years worth of good time credits to apply toward that fifteen year term, thereby allowing parole on a life term in as early as ten years.

As stated earlier, it could never be ascertained WHY Arkansas suddenly decided to do this. More, making life sentences subject to parole BY WAY OF ACT 50 per se itself curious, because Act 50 basically deals mainly with administrative and other duties of the Arkansas Department of Corrections UNRELATED to anything dealing with criminal sentences! Right at the end of the Act, however, a clause then appeared making life sentences subject to parole that was wholly out of context to the remainder of the Act.

This anomaly regarding Act 50 of 1969 has every earmark of the possibility that a few lawmakers who thought the sentencing system to be unjust simply slipped in the “lifer” clause and TRICKED fellow lawmakers into voting for Act 50 thinking that it dealt with entirely different issues (it was fairly long for a bill,) only to then discover the “trick” and that they in fact HAD ALSO MADE life sentences subject to parole in as little as ten years by Act 50!
I advance this speculation in part because of what also followed:

LESS THAN NINE MONTHS after Act 50 was signed into law and became effective, a new and inexplicable bill was introduced, by which to ELIMINATE parole on life sentences again! However, as is typical for “rush” legislation, or for many of Arkansas’ laws in general, for that matter, Act 1168 of 1969 was so poorly drafted that in the first clauses it in fact DID ELIMINATE parole on life terms, but then in the later clauses, it RE-CREATED parole on life terms yet again!

What a laughable state of affairs, had it not dealt with such a serious matter. This insane situation and example of legislative incompetence was created by the way lawmakers were trying to manipulate the “dates” involved, because once life terms were subject to parole in ten years by Act 50, ALL ADC felons’ life terms were subject to parole if the lawmakers did not expressly exclude all life terms from BEFORE Act 50, AND after the abolition of the offending clause in Act 50. However, the way the newer law read everyone was still eligible for parole on life BEGINNING WITH THE EFFECTIVE DATE of the Act 1168 of 1969 itself!

Obviously, the lawmakers had to go back to the drawing boards because they looked pretty stupid just about now. HOWEVER, the legislative SESSION was almost over, and it had been a long-standing constitutional principle that “extended sessions” were unconstitutional. So, it appeared to be too late to introduce yet another new bill for eliminating parole on life terms under Act 50, which had only been re-implemented by Act 1168 because of poor calculations and careless language. Apparently, the Legislature was ALREADY in an illegal extended session when this came up.

When all was said and done, the lawmakers decided to simply “append” the desired clauses regarding life sentences onto a wholly UNRELATED bill, as had been the case with Act 50 itself. Earlier in the session the Assembly had introduced a bill for granting leniency to “first and youthful offenders” who could be given probation and have their records expunged if satisfying the terms of suspended or probated sentences. This bill was then tabled for a while for some reason, and was then to be voted on later in the session. However, from the point that it was tabled, to the point at which it was taken off the table, “someone” had added the clauses that would eliminate parole on life sentences. These clauses were NOT a part of the original youthful offender bill, that is a certainty.

So, it appears that the law which actually took parole OFF life sentences in 1969 was illegally “amended” into the transition of the “youthful offender” bill, which itself was being considered in a possibly illegal “extended session”. If this is so, eliminating parole on life terms was unconstitutionally done, in which case once the law is declared unconstitutional, the law would “revert back” to the lawfully legislated law on the same subject that immediately predates it, or back to Act 50 of 1969. There is, therefore every reason to believe that all non-capital life terms in Arkansas actually have been “with parole” in ten to fifteen years simply because the flim-flam legislation between Act 50, Act 1168, and the final Act appears to be illegal. The entire Arkansas Rules of Civil Procedure were later declared unconstitutionally passed in the extended term of the Legislature, in RICARTE V. STATE, 290 ARK. 100. 717 S.W.2d 488 (1986)

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which discusses the key constitutional issues regarding lawful and illegally extended legislative sessions.

However, what is most anomalous of all about this entire legislative juggling act is that I cannot comprehend how life terms could in fact have been subject to parole for nine months of 1969. There is no conceivable way that the Legislature could have been in lawful session for NINE CONTINUOUS MONTHS (while they meet only every other year if no special session is called). At best, the Session of 1969 could only have started in January or February and ended in March or April. Also, since most laws generally don’t become effective until July of each year, there is no way that Act 50 could have been “engaged” for NINE MONTHS, if Act 1168 was passed in March (as it is date stamped by the Secretary of State), especially since new laws are generally not made “effective” until July following the session. EITHER Act 50 was passed into law and became effective in 1968 (in a special session) and for nine months was the law, until the next regular session began in early 1969, OR Act 1168 was not in fact SIGNED into law until late in the year of 1969, which would have been in an unconstitutional extended session. (More, it would mean that Act 1168 was also “back dated” to March of 1969).

From prison, I have just never been able to get to the source of this “curiosity.” Hopefully, someone can hire a legal researcher with access to vital records and authorities that prisoners simply cannot access.

IN CLOSING...

The reader is again alerted to the fact that what is said here regarding the host of apparent illegalities discussed has not been asserted and tested in a court of law. Suit was drafted against Bill Clinton, but before it could be filed his sudden elevation to the White House prevented an action of this kind from being prosecuted until he was no longer President, AND the legal force is somewhat mooted because, since he is not governor any more, he could not be the object of judicial decrees or orders. (The statute of limitations has also run.)

Suit was also drafted against Jim Guy Tucker, whose criminal conviction basically rendered the action File 13 material because the depravity of his “character” tended to taint the very issues of suit. The suit should be filed against the seated governor, and against the Arkansas Post-Prison Transfer Board, which also acts as the Arkansas Executive Clemency Board.

Needless to say, few ADC prisoners themselves would have the knowledge, motivation, money or expertise to challenge the governor or “the system” like this. There is a very real risk of angering not only the governor, but several good ol’ boys as well. However, that does not change the legal viability of the theory and the fact that asserting one’s legal rights can be a first step to getting Arkansas’ sentencing and clemency nightmare stopped and straightened out.

I also advise against any ADC prisoner filing suit like this pro se. The Attorney General’s Office would almost assuredly eat his proverbial pro se lunch. I have written this article for informational purposes for the parents, husbands, wives, brothers, sisters, friends, loved ones or supporters of a prisoner who does have the determination and resources to hire a quality attorney or law firm to litigate these issues. Consideration should be given to hire an attorney or law firm to initiate a “class action” suit so that the many, and possibly more ideal cases to be found within the ADC can become a part of such an action and thereby “cover” any hypothetical that the state will otherwise deny exists.

Finally, it is also hoped that at least several actions be initiated in different jurisdictions by different plaintiffs. It is a simple fact that Arkansas has truly good ol’ boy judges located in key places that would delay or generate illegitimate decisions in something like this. All it takes, however, is to put a single lawsuit into a court with integrity and let the matter be decided to the full on its true merits.

The reader should also know that despite the fact that many good ol’ boys are still in power, there are MANY Arkansans in high places who support and who will welcome the changes on the horizon. It’s just that politics are dirty business and those who want to change things are still a minority to the good ol’ boys.

Talk is cheap. Action speaks.

Good bless you.

CLEMENCY UPDATE:

In mid-September Zipperman Prez clinton announced that he would not honor a Congressional subpoena to give an account of why he granged clemencies to 14 of 16 F.L.A.N. terrorists, saying that the President's exercise of the executive power was beyond the reach of Congress to inquire into and, therefore, that he was entitled to assert "executive privilege" against honoring the subpoena. Not a word about it was on the mainstream news, though.

I think that he is absolutely correct about that, of course, and that Congress has no business intruding into the executive power. That is why the executive power exists in the first place; to be beyond the reach of the other branches of the government.

It is disturbing that while he was governor here in Arkansas clinton had no problem at all proclaiming that just about everybody in the world had the right to intrude into and to dictate the exercise of the executive power, the the General Assembly freely dictates rules and regulations regarding that power that clinton obviously knew all along were improper. It just serves to emphasize the points made in the previous legal discussion.

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LINDA TANT MILLER

WASHINGTON

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