Exploring the need for new prison space in absence of misdemeanor justice

By: Taylor Handford
AAC Legal Counsel

The prison population in Arkansas has grown by an average of 2.1 percent annually since 2005 according to CGL (formerly JFA), which has studied, tracked, and forecasted the Arkansas prison population for over 20 years. In 2005, the jurisdictional prison population was 13,469 (ADC Annual Report 2005). At the end of 2024, the jurisdictional prison population of the Arkansas Division of Correction (ADC) was 19,436 (CGL Ten-Year Adult Secure Population, December 2024). Throughout 2024, the average number of ADC inmates held in county jails at any given time was 1,987.

This article aims to discuss the damage done by the ADC backup to deterrence and the misdemeanor justice system; the differences between jails and prisons; and the duty to care for state inmates. Until the state prison system is right-sized to meet current and future needs, the misdemeanor justice system will continue to suffer deleterious effects caused by ADC’s inability to house state inmates court-ordered to its custody.

Deterrence

In Deterrence in the Twenty-First Century, Daniel S. Nagin writes, “the deterrent effect … of the certainty of punishment is far more convincing” than evidence of other deterrent effects. Nagin then explains that the certainty of punishment is the product of other conditions, such as the probability of apprehension after committing a crime, the probability of prosecution, and the probability of sanction after conviction. Of these three probabilities the most important is the probability of apprehension.

“The evidence in support of certainty’s deterrent effect pertains almost exclusively to apprehension probability,” writes Nagin.

Of course, if a crime has been committed, deterrence has failed. Any time a crime has been committed, the individual that committed the crime was not deterred. The certainty of punishment and the certainty of apprehension would have a deterrent effect on others, not on the person that committed the crime. The effect of the perception of apprehension being highly likely is itself likely to deter crimes from being committed. If an individual knows or believes that certainty of punishment and certainty of apprehension are likely, that individual is less likely to commit a crime. When certainty of punishment and apprehension increases, the rate of crime decreases.

In Arkansas, there is very little deterrent effect as the certainty of punishment and the probability of apprehension are often rendered toothless by the county jail back-up. In many counties, law enforcement officers, prosecutors, and judges are left without the option of incarceration or detainment in a county jail. Often, this results in law enforcement officers apprehending a person that has committed a crime and unless that crime is a violent misdemeanor, it is likely that the misdemeanant will be cited for an offense, given a court date, and released on their own recognizance. Rule 5.1 of the Arkansas Rules of Criminal Procedure defines “release on own recognizance” as “the release of a defendant without bail upon his promise to appear at all appropriate times, sometimes referred to as ‘personal recognizance.’” Essentially, own recognizance means you are taking a person at their word, a person just cited for a crime.

This is not working well in Arkansas. According to the Arkansas Crime Information Center (ACIC), as of June 4, 2025, there were 33,108 failure to appear warrants and 143,466 misdemeanor warrants to be served. In many district courts it is not unusual for at least half of the docket to not appear. Over 1,000 individuals have two failure to appear warrants. Almost 500 individuals have three failure to appear warrants. Across Arkansas, almost 2,000 individuals have between two and 10 FTA warrants. If the certainty of punishment and the likeliness of apprehension are the two most important prongs of deterrence, the state of Arkansas is embedding expectations of avoiding punishment for committing crimes. This avoidance is seen with felony warrants as well, as there are 26,239 outstanding felony warrants.

On August 13, a joint hearing of the Senate and House City, County, Local Committee was held. Officials from the Department of Corrections, sheriffs, and county judges spoke at the hearing, testifying on the current state of Arkansas’ misdemeanor justice system and the need for a new state prison and additional capacity. Benton County Sheriff Shawn Holloway stated, “Right now we have a broken criminal justice system, and that starts at the bottom in district courts with misdemeanors. Our misdemeanor system is totally

broken.” Sheriff Holloway testified that district courts and the misdemeanor justice system is the “first line of defense to change a person’s behavior so they don’t become a future felon. Right now, that is just not happening.” This is something Sheriff Holloway sees daily, as Benton County has the most failure to appear warrants in the state at 3,721.

“No one is coming to court because they know there are not consequences for an action,” Sheriff Holloway said.

If the Department of Corrections had adequate capacity, the county jail back-up would be greatly reduced. This means there would be more beds in county jails for misdemeanants to be held. The inability of district court judges to sentence a misdemeanant to jail removes one of the most potent and critical tools in our criminal justice system. Lonoke County Sheriff John Staley captured this reality: “The lack of available prison beds is a major concern across our state. When post-adjudicated felons — many of whom are violent or serious offenders — remain in county jails due to the prison system being at capacity, it creates a dangerous backlog. This not only prevents us from holding misdemeanor offenders who pose a threat to the community, but it also puts our detention staff and other inmates at risk.”

Role and Purpose of Jail vs. Prison

The purposes of a jail are different from the purposes of a prison. While jails have various functions, they generally are meant to house individuals for short periods of time. “County jails are not designed to house long-term, high-risk inmates. We need immediate attention to the prison bed shortage so our local jails can function as they were intended — to hold short-term detainees and keep our communities safe,” stated Sheriff Staley.

For the state of Arkansas, county jails detain individuals with pre-adjudicated felony charges, post-adjudicated felons waiting for placement with the Department of Corrections, and inmates that are necessary for court proceedings under A.C.A. § 12-29-111. When post-adjudicated felons occupy capacity meant for misdemeanants and individuals deemed immediate threats to others or their families, the ability of law enforcement to provide for the safety of their communities is drastically hampered.

County jails have high rates of churn, meaning the detainees in the jail change frequently. Jails are meant to operate as short-term facilities, geared to hold misdemeanants. County jails are meant to detain, at the longest, a person for up to one year — the maximum sentence allowable for a misdemeanor offense. The necessity of having operational and functioning county jails cannot be overstated. It is an absolute essential for county jails to be able to operate as intended.

Prisons are long-term facilities. For inmates admitted to ADC custody in 2023, the average prison sentence was 125 months, over 10 years long. Prisons, due to the length of time the individuals are incarcerated in them, are meant to provide rehabilitation and programming. Rehabilitation for prisoners goes hand-in-hand with the length of sentences and the consequent opportunity presented. As the theory of incarceration has shifted to rehabilitation, the importance of preparing inmates for reentry has grown in importance. This opportunity for rehabilitation is lost while ADC inmates are housed in county jails. County jails are neither equipped nor meant to provide the kind of rehabilitative programming that ADC can and is obligated to do.

The General Assembly recognizes the importance of programming. A.C.A. § 12-28-101 Facilities states the Division of Correction “shall also provide education and other rehabilitation and treatment programs designed to prepare inmates … for productive and law-abiding lives upon release from the division.” The Protect Arkansas Act, passed in 2023, mandates evidence-based recidivism programming. The nexus between drug use, addiction, mental illness, and criminal

ity is best addressed through long-term programming and assistance that can only be provided by the Department of Corrections. The Department of Corrections is better suited by mission, law, and resources to provide these programs than county jails.

Due to the county jail back-up, county jails cannot serve their main purposes and functions. And the longer an individual waits in a county jail for a bed at the ADC or ACC, the longer the individual goes without the programming and treatment offered by the Department of Corrections. As it stands, without additional capacity for the DOC, neither county jails nor the Department can fulfill their purposes.

State Duty & Prison Population Growth

The state of Arkansas has a constitutional and statutory duty to provide for the protection and security of its people. Article 2, § 1 of the Arkansas Constitution declares, “All political power is inherent in the people and government is instituted for their protection, security and benefit…” Under A.C.A. § 12-28-101, the state has a duty to “provide appropriate incarceration facilities for women, youthful offenders, and other adult offenders committed to the division by the courts of this state.”

Department of Corrections inmates are a state duty, regardless of county of origin. Additionally, county governments are constitutionally forbidden from making “any act a felony” under Amendment 55 of the Arkansas Constitution. Under A.C.A. § 14-14-801 counties are empowered to “Preserve peace and order and secure freedom from dangerous or noxious activities. However, no act may be declared a felony.” The only governmental authority able to declare a felony is the state legislature.

To adequately fulfill its duty, the state of Arkansas needs to increase ADC’s capacity. Over the last two years, Gov. Sarah Sanders’ administration has brought beds back online and added beds across ADC facilities where possible. Without the close to 1,500 beds those efforts created, the county jail backup would be substantially worse. The only remaining option is for the state to construct a new prison with adequate capacity for our current jail backup and for future growth in the prison population.

In 2029, the prison population is projected to be 21,803 (CGL, Ten-Year Secure Population Report). Currently, there are 1,692 ADC inmates in county jails. There are an additional 95 detainees waiting for placement in the Division of Community Correction (DCC). As of September 19, there is a total of 1,891 DOC inmates in county jails, which are neither designed nor meant to operate like prisons or rehabilitation centers. As the jurisdictional population of the Department of Corrections grows, the county jail back-up will continue to grow, unless a new prison is constructed to allow the Department to expand capacity and operations.

Since 2015, county governments and county taxpayers have constructed 3,154 jail beds, expanding county jail capacity by 2,270 beds. This county jail growth is primarily in response to the backup of ADC inmates. County governments have responded to the growth in the state prison population. Now it is time for the State to act and continue acting to alleviate the county jail backup.

Conclusion

For decades, county jails have housed thousands of state inmates. Since 2015, the average number of Arkansas Division of Correction inmates being held in county jails is 1,698. If ADC had a facility housing 1,698 inmates, it would be the state’s third-largest facility by inmate population.

The lack of ADC capacity to hold prisoners that are court-ordered to the custody of the state has led to the disastrous decay of the misdemeanor justice system. State inmates staying indefinitely in county jails is the primary cause of this decline. While the costs and burdens caused by the state’s persistent failure to invest in infrastructure and add capacity are borne by all Arkansans, for many counties the financial costs are on pace with the judicial and criminal costs. At the August hearing, Benton County Judge Barry Moehring stated, “We don’t have misdemeanor justice because our jail is full of felons — a significant number of which should be in state prison — in Benton County. The felony population is eating up the budget of Benton County.”

According to crime statistics available from ACIC, between 2015 and 2023, crimes against persons increased in 48 of 75 counties; crimes against property increased in 27 counties; and crimes against society increased in 56 counties.

As prison sentences lengthen to more accurately reflect the will of juries and the state population grows, the state inmate population will grow as well, placing more state inmates in county jails, causing more harm to the misdemeanor justice system and our communities. A new prison will add capacity to the Department of Corrections. Capacity to hold inmates and capacity to increase programming and rehabilitative services.

If ground were to break on a new prison today, the first beds would, assuming a similar timeline as Ouachita Regional in 2003, be operational around 2029. Arkansas cannot continue to delay in constructing a new prison as time will only compound already prevalent problems.