ARKANSAS' EXECUTIVE CLEMENCY CARROT - A 25 YEAR NIGHTMARE - Part III - Government - http://maxpages.com/darkevilworld/The_Clemency_Carrot_Part

NINE BRIEF MONTHS OF LIFE WITH PAROLE

Against this backdrop the first milestone of inherent sentencing and clemency injustice was set in place in Arkansas in 1969, when the legislature implemented "parole" for life sentences for the first time in Arkansas' history, (Act 50 of 1969). However, as suddenly as it had been done, less than nine months later, still in 1969, the Arkansas General Assembly decided to eliminate parole on all life sentences again. This has remained the situation in Arkansas to this date.

In that brief nine month period, however, there were several scores of defendants sentenced to life terms all around the state, all of whom would by law begin being eligible for parole in about 1979. This parole-then-no-parole-again moment in history was probably the single most telling event in making Arkansas' criminal justice and executive clemency systems inherently unjust today, simply because it created a "snowballing" series of injustices that haven't begun to slow their momentum to this day.

What is important to recognize about this exact time in Arkansas' past is that up until the time of the Act making life sentences subject to parole for nine brief months, virtually all prisoners serving life terms in fact had to serve those terms until dead, unless they were one of the EXCEEDINGLY RARE offenders who had their sentences commuted by the governor. Traditionally, because Arkansas had, in fact always been tough on crime and criminals, the governors of the state had been denying executive clemency to virtually all lifers, including those who had already served 20, 25 or 30 years or more. In essence, therefore, a distorted and inherently unjust "dual justice" system was created by Act 50 of 1969, because those several dozen defendants who by windfall were "fortunate" enough to be convicted while life sentences were briefly subject to parole, would in fact eventually parole, although many of their crimes were much more malicious, calculating or cruel than the offenses of those pre-1969 lifers who had already been locked up for decades, and who had been denied even well-deserved clemency all along. However, the moral and ethical dilemma that this "dual system of justice" posed to lawmakers, corrections officials, parole boards and other authorities of "the system" actually would not have to be faced until ten years later, when beginning in 1979 the 1969 lifers with parole eligibility would actually begin appearing for parole hearings.

I think the average person, and even the hard-liners on crime and punishment would agree that it was inherently unjust to have denied clemency to dozens of lifers who had served 20, 25, 30 years or more by 1979 with no parole eligibility and then have several scores of offenders become eligible for parole within 10 years of 1969, simply because they had been "lucky" enough to have been convicted while life sentences were briefly subject to parole eligibility. Law and justice simply should not have such arbitrary and capricious results or such dual standards. I refuse to believe that the common person thinks that this is just.

Was murder or rape less serious for nine months in 1969 than both before and after that time? Was it inherently just to allow many offenders convicted in 1969 to parole in 10 years, while requiring all others to die in prison for the same, or even less serious offenses, even after they had served three or four times as much time? I think not. However, despite this self-evident injustice and dual standard of the Arkansas system, virtually none of the pre-1969 lifers were granted clemency in the next ten years.

The next milestone in Arkansas' inherently unjust sentencing history was passed in 1976 to 1977. After a long and relentless sensationalist media and political propaganda campaign of reporting on cases of crime and punishment all around the country, the broader Arkansas public began to demand "truth in sentencing", because it was beginning to believe the lie about sentencing in Arkansas. In response, the Arkansas Legislature comprehensively re-wrote the Arkansas Criminal Code, and many crimes formerly subject to harsh but realistic terms of imprisonment were potentially subject to life or life-equivalent terms. I define "life-equivalent" to mean any sentence upon which an offender would have to serve 10 or more years actually incarcerated, regardless if that sentence was for a minor property crime or for murder, and because only 1969 lifers could actually parole after 10 years on a life term.

Beginning in 1977, those convicted of robbery, kidnaping, arson, burglary, drug possession, even theft and a host of other offenses could all receive constructive life terms. I realize that these particular offenses have, by name alone become inflammatory to the public mind and emotion, but I'm not talking about the sensational and infamous offenses of which we all know. I'm talking about a skid row bum who runs up and snatches a few dollars out of someone's hand, or the mom who "kidnaps" her baby because she doesn't want her in-laws to get custody in a divorce, or the guy who in a desperate attempt to get the insurance money so that he can save his house, burns up his car. I'm referring to the guy who throws a brick through the window of a store to get some food from the grocery shelf, or the addict who just bought a fix and gets caught with it, ad infinitum. I'm speaking about the vast majority of everyday kinds of crimes which are, admittedly serious offenses deserving of punishment, but not crimes for which people should be sent to prison to die.

Regardless of what the sensationalism-frenzied media seeks ever to do, or regardless of what politicians seek to make the public believe at election time, the atrocious, malicious, infamous crimes that generally come to mind when people hear words like "murder", "robbery" or "kidnaping" are relatively rare incidents, and it is inherently wrong to brand or to stereotype or punish all offenders as if they were depraved animals.

Because the Arkansas Legislature generally knew that there is a "common" and least offensive way to commit a crime, which sometimes turns on little more than a technical definition, in 1977 it set a "minimum" penalty for the base and common offense and a "maximum" penalty for the most ‘aggravated" form of the offense for each statutory offense on the books. In that way, each Arkansas jury ideally had a wide range of punishments available for any given offense. In theory and by actual Legislative intent, this would assure punishment tailored to both the specific crime and the particular offender on a case-by-case basis.

In most other states the judge in a case is the sentencing authority. However, because Arkansas is a "jury sentencing" state, lawmakers fully intended for juries to in fact exercise truly fair penalty judgements along the scale of sentences they had so radically increased, while by design reserving the maximum possible sentences only for the most heinous, atrocious, or aggravated forms of the generic offense being prosecuted.

In the 1977 legislative session, lawmakers also noted that even under the relatively less severe penalty ranges under the former criminal code, widely disproportionate sentences for essentially the same criminal conduct were being meted out by juries all across Arkansas unfairly and unjustly. More, because, say a Fort Smith jury traditionally lived up to the "Hanging Judge Parker" mentality of that part of the state, the guy who stole a VCR there would get a more severe sentence than the man who committed rape or child molestation in Little Rock, or the guy who wrote a hot check would be more severely punished than the murderer in Jonesboro. On a state-wide basis, the intent of the entire criminal justice system was simply turned upside down and the magnitude of injustice that resulted is incomprehensible. In the early years of my incarceration I used to joke about wishing I had gone ahead and squirted my victim with the water in the water gun, since for attempted murder by drowning I would only have received a sentence of ten years or so. It's not, of course, funny for more than one reason.

Because of the abuses and sentencing injustices so prevalent under the prior criminal code, the 1977 Arkansas Legislature built a system of checks and balances into the new criminal code, making the courts responsible for "adjusting" any penalties imposed by a jury that the court felt "ought not to have been inflicted" in a given case. To my knowledge, no other state's General Assembly had previously specifically commanded its courts to act as a check and balance against potentially wayward jury sentences as a matter of legislative design. Recognizing also that jurors could easily be subject to the prejudices and passions that ideally should not be present in a "fair and impartial" criminal trial, the General Assembly also officially declared the legislative intent to "eradicate disparate punishment for comparable criminal conduct" under the new criminal code, and to "realize the imposition of comparable punishment for comparable criminal conduct."

Colorful terms, but ones that simply meant that it was recognized that a jury in a given case could, for any number of reasons, impose a sentence unjust under the circumstances, and the courts were commanded to remedy it if it happened. The potential for the new criminal code to become as distorted and abused as the prior code was of particular concern to some lawmakers because of the degree to which criminal penalties had so radically been increased under the new code.

For many reasons discussed in the sister article, Apparent Illegalities of Sentencing and Executive Clemency Practices In Arkansas, the Arkansas courts simply refused to make the "proportionality" reviews that the Legislature intended; indeed, commanded. I feel that part of this refusal lies in the fact that at the trial level, both the judge and the prosecutor are elected officials, while only registered voters are permitted to sit on juries in Arkansas. Therefore, if a given jury indeed imposed a wayward sentence due to inflammation or for other unlawful reasons, an Arkansas judge would be in the untenable position of "accusing" his own voter constituency jury of having imposed an excessive sentence, that is, one that would be shown to violate the legislative intent to ‘eradicate disparate punishments for comparable criminal conduct."

What made the 1977 criminal code and its potential for abuse so particularly aggravated and inherently unjust is that, as I said, jurors were imposing maximum penalties in virtually all cases across the board, simply because they believed a media and politician-created lie that even life terms were subject to parole in seven years. Because of this belief, they were inflicting insane penalties that they neither understood nor intended to inflict, in many cases. Consequently, excessive punishment became the norm, rather than the rare exception in Arkansas, and the express intent of the 1977 General Assembly was utterly defeated, in large part by the courts themselves.

Since that time, the criminal sentencing system has been out of control, with virtually no checks and balances against wayward and arbitrary juror-imposed sentences, and also without legal remedy for those who proved they had been sentenced to disproportionate or excessive punishment. Indeed, as explained below, it is the Governor of Arkansas alone who has now been shouldered with the mind-boggling responsibility of correcting the widespread injustices and the excessive sentences of several thousand of the current 12,000 ADC prisoners.

Because the trial courts were so reluctant to "regulate" the penalties imposed by jurors with little or no idea what they were doing, jurors around the state were sentencing people to 20, 30 and 40 year sentences for the theft of a VCR or writing a hot check over $100, ad infinitum, mistakenly believing that the offender would serve two to four years before parole. In fact, however, these sentences were often without parole eligibility altogether, due to the existence of hidden laws never brought out at trial, which meant that these men and women would actually die in prison. Even in those rare cases when a jury inquired about the actual execution terms of a sentence they were considering, they were by force of law, told by the court that it "is none of your business. Just render a verdict, and the prison system will concern itself with that." Little wonder sentencing injustices became the status quo.

Worse, because Arkansas trials were also bifurcated, meaning at an innocence or guilt phase and then a separate penalty phase, countless jurors were in a sense "duped" into condemning people to die in prison because it was only after a verdict of guilt of the offense was returned, it would then be "sprung" upon the jurors that they were now required to impose a mandatory minimum term. The mandatory minimum terms required were usually a term far exceeding what the jurors had thought was just and proper under the facts and circumstances of the case. By law, where they refused to impose the sentence because it was wholly unjust, the power to sentence would be reverted, of course to the court.

This widespread, uninformed and unintended imposition of truly disproportionate and excessive sentences by good-intentioned jurors all around the state soon led to a veritable river or influx of life- equivalent terms into the ADC, and that flood has not ceased since. When I arrived in 1981, only four years after the 1977 code revision, there were 2,900 inmates in the ADC. Today there are almost 13,000, and I estimate that some three to four thousand or more are serving life or life- equivalent terms. That means they are expected to die in prison, when in almost all of those cases the juries had no idea that they had imposed such a perverted sentence.

Even from these few factors, it should not be difficult to understand that as the rivers of life- equivalent terms flooded into the local jails and the ADC, overcrowding soon became a serious "internal" systemic problem. By the early 1980s two "lifers" were being committed to the ADC for every new bed being built. Thus, not only was the ADC not making headway with creating bed space for new offenders, it was actually losing ground to lifers who were taking up bed space faster than it could be built. On average, about four new life terms are now imposed in Arkansas every month, while less than one prison cell is being built to house them.

Needless to say, Arkansas lawmakers, judges, prosecutors, police and other officials soon realized that jurors were not imposing sentences within the true intent of the General Assembly of 1977. In far too many cases the maximum punishments were being imposed for all offenses across the board, simply because jurors mistakenly and tragically thought that all offenders were getting slaps on the wrists and would parole in no time at all, when they'd only intended to implement a better justice and make serious offenders serve at least some reasonable time confined before being paroled.

However, after years of media hype and public deception for the sake of ratings and politics, lawmakers still had to deal with the hard realities of maintaining a criminal justice system. It was one thing to cater to the public's emotionalism and reactionary outcries for the sake of getting elected or for increasing ratings or selling newspapers, but these things had little place in the real world of crime and punishment. Also, by the time this "overkill" sentencing nightmare had grown out of control. In about 1980 it was indeed already political suicide for lawmakers to propose that they return to "truth in sentencing" and to correct the new sentencing abuses going on, because in order to do that they would again have to downgrade statutory penalties across the board. This, of course, would be interpreted by the inflamed public, who believed a lie that they were getting soft on crime and criminals "like those Westerners and Yankees had done."

Nevertheless, simply because the criminal justice and prison systems could not possibly continue to absorb the influx of life terms multiple times in excess of the bed space being built, the only "option" lawmakers had, (other than to act courageously and by what they are sworn to do) was to outwardly maintain this hypocritical "We're tough on crime and criminals' facade, while they were busy behind the scenes, legislating good time laws, special release acts, and a panoply of laws hidden from the public by which to slip hundreds of prisoners out the back door of the system. I must emphasize, however, that these insane windfall laws did not apply to the thousands of prisoners who had been rotting in the ADC all along; only to the newly convicted ones whom the lawmakers were using as the pressure valve. In all probability, lawmakers knew that this political flim-flam would eventually blow up in their faces, just as it had in California, Texas and New York, but most of them didn't care. After all, by the time the entire mess inevitably exploded they would have long since "hit their lick" and left public office.

What is particularly twisted about all this is that when the Arkansas public did become predictably outraged about ADC inmates getting slipped out the back door, and over-gaining good time credits and other benefits that even criminals would adjudge to be distorted and ridiculous, the public never understood that these "lie in sentencing" laws had been passed solely because of the unrealistic 1977 criminal code and the fact that, due largely to a single insidious lie and belief regarding parole on life terms, lawmakers had been forced to legislate these perverted slap-on-the-wrists and "fast-tracking" back door laws simply because they were too afraid to squarely face and correct the backfiring of the 1977 criminal code. In other words, lawmakers had, in a way, become the victims of their own media-fed propaganda and election strategies.

Of course, all the citizens in the streets saw was that some new offender they had just sent to prison last week was already up for parole, or the prisoner they had seen placed into the prison transport bus yesterday was today riding around in the Sheriff's car while working as a cook or trustee at the country jail. The public naturally became outraged over these things, believing the entire Arkansas justice system as a whole to be unjustly lenient, when in fact, a hidden mass of several thousand prisoners whom jurors had unwittingly and unintentionally condemned to death in prison from 1977 on were the very reason these "new age" offenders could be slipped out the back door. The public has never to this day "seen" this great mass of human beings who, for decades have been rotting in the prisons, many of whom deserve release. Things are so twisted now that the more decades a prisoner has been rotting in prison, the longer and more harsh it becomes because of the perpetual waves of "truth in sentencing" laws that each new body of newly-elected lawmakers passes, all of which are nothing more than a twisted lie in sentencing. That is not a euphemism, but a real fact of Arkansas' criminal justice system. SB 112 is the latest example.

The new-age slap-on-the-wristers and fast-trackers are not representative of the system at large, they are simply the beneficiaries of the windfall of political cowardice and private "prison enterprise" agendas while thousands of us continue to rot in the ADC's prisons, with the public clamoring for even more "truth in sentencing." It will be a great shame, indeed when Arkansas finally realizes what a perverted system of "justice" it truly has.

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LINDA TANT MILLER

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Page Updated Thu Jan 24, 2008 6:54am EST