Make Arkansas safe

By Taylor Handford
AAC Law Clerk

Introduction

The goals of a criminal justice system are retribution, deterrence, incapacitation and rehabilitation. Pursuit of these goals aims to increase public safety, decrease crime and return incarcerated individuals back to communities as productive, transformed citizens. Despite the work of dedicated, diligent public servants, the criminal justice system in Arkansas is failing to protect citizens, prevent crime and rehabilitate the incarcerated population.

According to the FBI’s 2019 Uniform Crime Report, on a per capita basis of 100,000 inhabitants, Arkansas has the fourth highest rate of violent crime and the fifth highest rate of property crime. Further, Arkansas has the second highest rate of rape, the fourth highest rate of aggravated assault and the eighth highest rate of murder and nonnegligent manslaughter in the country. Additionally, Arkansas has the fourth highest rate of burglary and the sixth highest rate of larceny-theft, which includes the theft of vehicle parts such as catalytic converters.

Alongside high rates of violent crime and property crime, Arkansas state prisons and county jails are routinely overcrowded — and have been for decades. According to the National Institute of Corrections, the Arkansas state prison system’s design capacity is 15,431. At the end of July 2022, the state prison population was 17,109, and the county jail backup averaged 1,541 state inmates per day.

The state legislature passed acts to address state prison overcrowding commencing in 1987 and to address county jail overcrowding since 2003, with state prisons operating above a 98 percent rated capacity threshold and county jails regularly holding more than 500 state inmates.

While state prisons and county jails chronically face overcrowding issues, the state’s recidivism rate is one of the highest in the country. The higher a recidivism rate, the more individuals will return to state and county facilities. JFA Associates (JFA), an expert group that has forecasted Arkansas state prison populations for over 28 years, estimates that Arkansas’ prison population will grow by 1.4 percent per year. A 1.4 percent per year growth results in 18,100 state inmates in 2026 and 19,160 state inmates in 2031.

These factors create a revolving prison door that causes high crime, low rehabilitation and no deterrence. To address these issues, there must be a three-pronged approach:

1. More state capacity to hold state inmates.
2. More state capacity to reduce recidivism.
3. Use new state capacity to implement what works, discard what does not work.

Prong One: More State Capacity to Hold Inmates
County Jail Overcrowding Isn’t Sustainable

In 1987, the state legislature passed Act 418, the Prison Overcrowding and Emergency Powers Act (EPA). The EPA allows the Board of Corrections and the director of the Department of Corrections to identify and release eligible state inmates early. In 2003, the state legislature passed Act 1721, amending the EPA to address county jail backlogs. When county jails have a backlog of more than 500 state inmates, the EPA can be used to release inmates and temporarily alleviate county jails. Excluding special COVID-19 releases in 2020, over 2,000 state inmates have been released every year since 2010, due to state and county facilities being overcrowded. These releases are primarily driven by Act 418, which has accounted for 89 percent of EPA releases since 2010.

County jails have never been intended to be long-term holding facilities for state inmates. State inmates under judgments of conviction for felonies are directed by the courts and by laws to the Arkansas Division of Corrections (ADC) or Arkansas Division of Community Correction (ACC). County jails are only supposed to hold state inmates in circumscribed roles: for relocation to other facilities or when the inmate is needed in court to testify. Instead, county jails are holding state inmates on a long-term basis. Counties on average hold state prisoners for months (state inmates commonly serve much of or their entirety of the sentences in our county jails.) In response to the growing state and jail population, county jails have added more than 2,150 beds since 2015. This isn’t a problem that can be solved or should be solved at the county level, however.

Sebastian County Sheriff Hobe Runion stated, “On any given day, we could have 175 state prisoners in our jail, which reduces capacity by 25 to 33 percent.”

When a county jail loses that much capacity because of holding state inmates, the effects ripple throughout the criminal justice system.

“Because we are housing state felons in particular, we don’t have room for misdemeanors, which takes the ability of judges to correct behavior out of their hands,” Runion said.

The only misdemeanors Sebastian County currently can attempt to hold are those individuals who are an immediate threat to themselves or to the public.

In speaking with other sheriffs, it was clear that this reality and concern is not isolated to Sebastian County.

“County sheriffs are not able to serve misdemeanor warrants, especially those of us with small to medium sized jails,” Clark County Sheriff Jason Watson said.

Jeremiah Edward Devon and Timothy Jay Robertson are great insights into the catch-and-release regime caused by state prison and county jail overcrowding. Devon, now 44 years old, from Springdale, Arkansas, was arrested 42 times in Benton County and 10 times in Washington County. On March 26, 2021, Devon was arrested for the murder of 48-year-old Wanda Reed, a mother of four. Devon is alleged to have killed Reed by repeatedly striking her head and then leaving her body in a creek near the Razorback Greenway walking and biking trail.

Preceding Devon’s alleged murder of Reed, he had a litany of felony offenses. In January 2019, Devon was arrested and charged with a Class D felony for possession of methamphetamines. Following two failure to appear charges in April and June 2019, Devon was arrested and charged in August 2019 for forgery, a Class C felony. In October 2019, Devon was charged with another Class D felony for possession of methamphetamine. Devon’s court cases were continued throughout 2020 due to the COVID-19 pandemic. In May 2021, two months after Reed’s death, Devon was sentenced on his prior possession felonies to 10 years at the Department of Corrections with five years suspended. In early August 2021, after having committed scores of crimes and serving only a handful of months of a 60-month sentence, a parole board unanimously released Devon to ACC supervision on parole. In December 2021 Devon was charged for the murder of Wanda Reed.

Timothy Jay Robertson, from 2010 to 2022, has 23 court cases charging him with offenses ranging from Class A misdemeanor charges to Class D felony charges. On May 7, 2018, Robertson gave a negotiated guilty plea to first-degree domestic battery, a Class B felony, and was sentenced to 24 months at ADC. By the time he was sentenced, he had already been found guilty on at least two other domestic battery charges. By August 2019, Robertson was out of ADC. Throughout 2019, Robertson was charged with and pleaded guilty to: driving on a suspended license, possession of drug paraphernalia, possession of a Schedule VI controlled substance, three counts of criminal trespass, failure to appear, resisting arrest, aggravated assault on a family or household member, and possession of firearms by certain persons. For those keeping count, that’s eight misdemeanors and two felonies in a year.

While being detained at the Polk County Detention Center in February 2020, Robertson escaped and fled on foot. After being reported at a nearby residence, Robertson tried escaping across a body of water, Ward Creek. Polk County Sheriff Scott Sawyer, along with other law enforcement officials, pursued Robertson into Ward Creek where a confrontation occurred. While apprehending Robertson, Sheriff Sawyer’s hand was broken. Robertson was charged with one count of escape from law enforcement, a Class B Felony. Due to COVID-19, Robertson had three court cases continued into May 2021 involving an aggravated assault on a family or household member, his firearm possession and his escape. Under a negotiated guilty plea, he was sentenced to 120 months at ADC. By March 2022, less than one year later, Robertson was out of ADC. In 2022, he was charged with two counts of public intoxication, driving on a suspended license, failure to appear, two counts of criminal trespass, and theft of property. According to the Administrative Office of the Courts (AOC) Public CourtConnect, as of Oct. 18, 2022, Robertson was in rehab at ADC. That begs the questions why was he not held long enough on prior convictions to complete rehabilitation or treatment programs while incarcerated? Or is it painfully apparent that he was released too quickly?

Washington County Sheriff Tim Helder has served in law enforcement for more than 42 years. He has repeatedly emphasized the urgent need for more state prison capacity and beds, particularly regarding northwest Arkansas’ population boom. As perfectly illustrated by Devon and Robertson, Sheriff Helder remarked that more beds at the state level would “provide relief at the county level, which would in turn free up beds so when local law enforcement officers are making arrests there is space to hold them.”

Sheriff Helder also confirmed what the ADC’s own statistics bear out. The state inmate population has shifted from most inmates being non-violent offenders to violent offenders. Until 2016, most ADC inmates were categorized as non-violent based on their convictions. In 2016, the trend reversed and has only increased. Since 2016 there has been a 24.8 percent increase in violent inmates and a 22.8 percent decrease of non-violent inmates. Currently, 59.8 percent of the ADC population is serving time for violent offenses and 40.2 percent is serving time for non-violent offenses.

Not only has the state inmate population changed but so have county jail populations. When state facilities cannot hold violent felons, they are left to be held by county jails, which are primarily meant for misdemeanor and non-violent charges. Sheriff Helder said there are currently 23 felony murderers in the Washington County Jail.

“It used to be a banner year if we had two or three [murderers],” Sheriff Helder said.

When a county jail must house violent offenders, it is nearly impossible to separate them from non-violent offenders. This is because county jails, unlike state facilities, were never designed to hold and separate such persons from the general population.

County jails cannot continue to hold state inmates on an indefinite basis without repercussions. County resources are limited and should be dedicated to protecting their jurisdiction – jurisdictions they are outfitted to serve. The more county resources used on state inmates, the fewer county resources available for crime reduction. Sheriff Runion believes county jails and the state criminal justice system are at “a tipping point” with the lack of state prison beds being “a roadblock in the whole justice system.”

EPA Releases and Early Access
to Parole Add to the Revolving Door

Both the EPA and the access to parole after serving a fraction of felony sentences contribute to Arkansas’ high crime and recidivism rates. Since 2010, thousands of inmates, such as Jeremiah Devon, have benefitted from early release from parole after serving shockingly little of their sentence. In the same time span, over 20,000 inmates have been released through the EPA, with many released after serving less than 20 percent of their sentence.

Corey Demond Smith benefitted from this exact kind of EPA release. In 1999, Corey Demond Smith was sentenced to five years for possession of a firearm by a certain person, aggravated assault and first-degree terroristic threatening. Smith also had his probation revoked on a possession drug charge. Within three years, Smith was out of prison. In 2002, he was charged with robbery and escape. Smith was given an enhanced sentence of 40 years as a habitual offender. Smith was approved to be released on parole on June 5, 2013, having served 11 years of the 40-year sentence. On Nov. 11, 2014, Smith was charged with aggravated assault on a family or household member and third-degree domestic battering. On June 9, 2015, Smith was convicted and sentenced to five years on the aggravated assault on a family or household member charge. Through the EPA, Smith, a habitual offender with a violent record, was released on Feb. 23, 2016, having served only nine months of his sentence.

On July 11, 2020, Smith shot his 26-year-old girlfriend, Angela Gipson, and 55-year-old Jamie Hathcoat, killing them. Gipson is survived by a 9-month-old son. Hathcoat is survived by a son and a grandson. Gipson intended on enrolling in nursing school. Hathcoat had spent years as a teacher. On April 20, 2022, Smith plead guilty to capital murder and was sentenced to life in prison.

While incarcerated, now for the fourth time, Smith has had no fewer than 24 disciplinary violations. In discussing Smith, Clark County Sheriff Watson suggested that looking at disciplinary records while a person is incarcerated provides insight into their current state.

“When you go to prison, and you continue to violate the rules, that’s a clue that shows you there isn’t respect for authority,” he said.

Afan Humphrey, another beneficiary of the EPA, was sentenced in February 2018 to six years in prison on two counts of residential burglary, two counts of theft of property, and one count of theft of property — a firearm. After completing only nine months of his sentence, Humphrey was released on Nov. 27, 2018. Just over a month after his release, Humphrey of Pulaski County shot 19-year-old Wesley McKinley Everett in the back of the head with another stolen firearm.

White County Sheriff Phillip Miller said he believes “more state prison capacity will lead to less early releases, which leads to less violent offenders being out.”

Sheriff Miller added that inmates are intentionally “disruptive and destructive in jail just to get to ADC faster in order to be released faster.”

“Early release is not working. Bed space is not being created because within months a lot of those released individuals are getting picked right back up,” Sheriff Miller said.

In addition to the state prison population growing on a yearly basis, the COVID-19 pandemic caused an unprecedented backlog in felony warrants and felony criminal cases in the state. As of August 2022, there are over 15,500 felony cases pending in Arkansas courts. In 2022, there have been over 12,600 active felony warrants issued in addition to over 38,400 other active warrants. In total, the state has over 170,000 warrants to be served.

If the state of Arkansas had the adequate and necessary prison capacity, it is plausible that Devon, Smith, Humphrey and Robertson would not have served so little of their sentences. There are plenty of similar unnecessary and tragic cases. It is inevitable that with over 2,000 EPA releases a year and a broken parole system allowing state inmates to serve a fraction of their sentences due to lack of state prison capacity and overflowing county jails, that several of these felons will commit heinous crimes upon early access to release. What is also inevitable, however, is that if the lack of state prison beds and capacity is not addressed now, the crisis will only worsen.

Prong Two: More State Capacity
to Reduce Recidivism

According to the Arkansas Department of Corrections, Arkansas’ recidivism rate for the 2017 release cohort was 50.6 percent. Recidivism is defined by the state legislature through A.C.A § 5-4-101: “a criminal act that results in the rearrest, reconviction or return to incarceration of a person with or without a new sentence during a three-year period following the person’s release from custody.” Arkansas’ recidivism rate is the highest rate among other southern states. When compared to the nation, Arkansas ranks as having the sixth-highest recidivism rate. Of the 50.6 percent of released inmates that returned to ADC custody, half of those were reincarcerated within 13 months. Plainly our soft and early release system is not working. More state prison bed capacity would free up county resources, alleviate jail overcrowding, and reduce early access to release. It would also allow for more robust, efficient rehabilitation and treatment programming.

According to the ADC’s August 2022 Director’s Board Report, there are over 1,500 inmates on the waitlist for mental health treatment programs and over 3,000 inmates on the waitlist for substance abuse treatment programs. That’s an unacceptable failure. For fiscal year 2021, ADC admitted 5,182 inmates — a drastic decrease from 7,233 inmates admitted the previous year due to the COVID-19 pandemic — with 37.4 percent of them convicted for a drug offense. With over 1,900 inmates admitted because of a drug offense in 2021 and a total substance abuse treatment capacity of 787 beds, the waitlist will continue to grow.

The Substance Abuse Therapeutic Community Program (T.C.) has a capacity limited to 224 treatment beds for the 9-to-12-month program. The Substance Abuse Treatment Program (SATP) has a limited capacity of 563 treatment beds for the 4-to-6-month program. Investing in these programs is pivotal. The recidivism rate of individuals who completed the T.C. Program is 33.08 percent, 17 percent lower than the overall rate. The recidivism rate for individuals that completed SATP is 36.83 percent, 14 percent lower than the overall rate. How can we continue to release inmates who have not completed their necessary mental health and substance abuse treatments? Why are these vital programs under funded? The citizens deserve better.

There is another, more subtle way that the lack of state prison beds is driving a high recidivism rate: state inmates are spending the bulk or their entire sentences in county jails. When an inmate spends the bulk or entirety of their sentence at a county jail, they are not receiving rehabilitation or programming treatment. Counties are not equipped to provide rehabilitation and programming services akin to state facilities, especially while dealing with an overflowing jail population.

“When we are overcrowded to the point we have been the last few years, we haven’t been able to conduct programming on a regular basis,” Sheriff Helder said.

A state inmate does not receive any state resources, help or guidance until they are sent to the diagnostic unit at the Ouachita River Correctional Unit at Malvern, which is the newest state facility, established in 2003.

Sheriff Miller said he has, “frequently received notifications of parole for inmates who have stayed at the county jail for the entirety of their sentence.” Sheriff Watson testified to the same scenarios in Clark County, adding, “County jails are not suitable for holding individuals suffering from mental health problems. But you can’t get a bed at a state hospital once they are sentenced.”

Does public safety not demand that the state robustly increase state prison bed capacity? What will it take to properly fund our state prison system?

The record of Jared Lee Ball, another beneficiary, provides insight into how early access to release and lack of state prison capacity combine to prevent rehabilitation of inmates. On Sept. 28, 2008, Ball was sentenced to 42 months of probation for two counts of manufacturing, delivery, or possession of a controlled substance. Within seven months, on April 8, 2009, Ball’s probation was revoked, and he was sentenced to 36 months in ADC for possessing a firearm and for a failure to appear in Franklin County. Ball served eight months of his three-year sentence and was released on parole in late November 2009. On Jan. 13, 2012, Ball’s parole was revoked and he was yet again remanded to ADC custody.

After his subsequent release, Ball was apprehended in July 2014 and convicted for breaking and entering in Franklin County. Ball was sentenced to one year but was paroled by late September 2014. In 2016, Ball was sentenced to three years of probation for another drug-related crime, this time in Logan County. In May 2018, Ball absconded, and a warrant was issued. In July 2019, Ball was sentenced to three years at ADC with 36 months suspended for two failure to appear convictions in Johnson County. In August 2019, Ball’s probation for the Logan County drug charges was revoked, resulting in a three-year sentence and an 84-month suspended sentence. On Dec. 2, 2019, Ball was released on parole with the special condition of completing alcohol or drug counseling and aftercare. On Dec. 8, 2020, a year later, Ball had another abscond warrant issued resulting in his incarceration on Jan. 4, 2021. Ball was released 8 days later. In October 2021, Ball was discharged from Harbor House, his alcohol and drug treatment program, because of unexcused absences. After being dismissed from his treatment program, Ball was arrested for domestic battering, and then on Jan. 20, 2022, he was arrested for allegedly murdering his girlfriend’s 1-year old child, punching the baby with enough force to cause a heart laceration. When Ball was arrested, officers found kratom, a Schedule 1 controlled substance, and drug paraphernalia.

Ball’s history highlights the impact of the revolving state prison door on parole and probation officers. According to Sheriff Helder, it is not unusual for parole officers to average 120 clients at a time. An Arkansas parole or probation officer should be able to provide “constant 24-hour on-call duty required and exposure to personal injury,” according to the state’s own job description. The functions of a parole or probation officer include making home or community visits, referring parolees or probationers to counseling and drug treatment centers, conducting drug tests, and completing investigations into violations, as well as other exhaustive, time-consuming tasks. Admittedly the very limited parole officer staffing prevents them from fulfilling these necessary tasks with the number of parolees and probationers they are assigned to supervise.

The capability to hold habitual offenders like Ball, to ensure they receive the necessary treatment for mental health and drug issues, only happens if the state prison capacity increases and state resources for such programs increase as well. Of the five states with higher recidivism rates than Arkansas, only one, Pennsylvania, has a larger prison population than Arkansas. Pairing Arkansas’ fast growing prison population with a high recidivism rate means that every year more and more individuals will be shuffled through the revolving door between county jails and state prisons, eventually ending up as the 24 responsibilities of a parole or probation officer who has over 100 other individuals to worry about as well.

Prong Three: Use New State Capacity to Take What Works, Leave What Doesn’t

The current state of Arkansas’ prison system does not allow for new approaches to be fully implemented and evaluated, much less to flourish. The reality is that of a stagnated, debilitated system: overcrowded prisons and jails lead to felons being released before serving even 20 percent of their sentences, missing any chance of rehabilitation or needed treatments, then reoffending, going back to county jails, taxing county resources, and then either spending their entire sentence in county jail or going back to ADC before being shortly released again. When all you know how to do is tread water, swimming to safety seems impossible, even as you slowly sink farther and farther. Fortunately, other states have learned to swim. It is imperative that we also add capacity in order to swim as well.

States that have built new prisons have also passed policies aimed at addressing pressing issues, such as high recidivism rates and ineffective parole systems. In 2021, as the state of Alabama approved investing $1.3 billion on two 4,000-bed prisons, the legislature also passed a bill requiring the Alabama Department of Corrections to provide inmates preparing to reenter society with a nondriver state identification card, a birth certificate, and a Social Security card. These documents help inmates reentering society to gain housing and jobs. Sixteen other states also provide inmates with identification cards upon release or shortly afterwards. Addressing these barriers to reentry and reintegration is a low-cost remedy for a common problem.

Some non-profit organizations, like The Bail Project, attempt to reduce the number of individuals in jail for pre-trial detention. In January 2020, The Bail Project posted bail for Zack Whitcomb in Washington County. Whitcomb was awaiting trial on misdemeanor charges. After The Bail Project paid his bail, he failed to appear for subsequent court dates, resulting in an arrest warrant being issued. While out on bail, Whitcomb was arrested for participating as an accomplice in the murder of 23-year-old Lavonte Jackson in February 2020 in Benton County. After The Bail Project assists in the release of an individual, they aim to provide “Court Support” and help them “return to court and resolve their cases.” In the name of ending the cash bail system, The Bail Project and similar cash bail non-profits circulate money in paying bails across the country, counterintuitively perpetuating the system, and releasing potentially dangerous individuals.

Notably, and perhaps most relevant to Arkansas’ current catch-and-release reality, with more prison capacity, the sentence handed down is more likely to be the sentence that is served. Passing Truth in Sentencing reforms would ensure that individuals serve the sentence a judge gives them. For the last 20 years, individuals like Brian Bliss Travis from Mena have been in and out of ADC, never serving their full time. Between 2000 and 2019, Travis had five stints in ADC. In 2000, Travis received a 72-month sentence for commercial burglary. In 2005, he was sentenced to 36 months for theft of property and had his probation revoked. Then in 2007, he was sentenced to 120 months on two counts of commercial burglary, one count of theft of property, and one count failure to appear. After serving less than three years, Travis was convicted of one count residential burglary and one count theft of property in 2010, receiving a 30-year sentence. Travis was released in August 2016 on parole. Just eight months after being released from a 30-year sentence on parole, Travis was arrested in Polk County for murdering his 43-year-old girlfriend, Bethany Jo Wester, her son, Reilly James Scarbrough, 9, and daughter, Acelynn Carrie Wester, 2, as well as Wester’s uncle, Steven J. Payne, 66.

Speaking about Travis, Polk County Sheriff Scott Sawyer said, “From the time Travis was 19 to 37, you could see the change from non-violent crimes to violent crimes.”

Yet every time Travis was sentenced, he would be out early, even when charged under habitual offender laws. According to Sheriff Sawyer, Travis was released under EPA three times and paroled at least twice instead of discharging his sentence. With these results, can we continue our broken parole system?

Sheriff Watson believes Truth in Sentencing would deter crime through ensuring the severity of the punishment is upheld.

“There has to be fear in sentencing. Individuals are laughing on their way to the ADC, saying they’ll be free in a matter of months, not years, regardless of their sentence,” he said.

Sheriff Runion also believes movement toward Truth in Sentencing is essential toward restoring the deterrent effect of the criminal justice system. Truth in Sentencing legislation can be crafted in many ways, but ultimately, like other reforms, the ability to fully implement such legislation is dependent upon the capacity of state prisons to hold and detain inmates.

Conclusion

According to Professor Daniel S. Nagin, the author of “Deterrence in the Twenty-First Century,” the theory of deterrence involves three factors: severity of punishment, certainty of punishment, and celerity of punishment. For decades now, underinvestment and half-measures have reduced the ability of Arkansas’ law enforcement and criminal justice officials to uphold the severity of punishment and the certainty of punishment for lawbreakers, particularly felons. With COVID-19 came a perfect storm, causing thousands of court cases and warrants to be backlogged, reducing the celerity, or swiftness, of punishment.

Arkansas’ criminal justice system does not operate in a vacuum. The system is a product of governance, investment and cooperation between state and local officials. Elected officials have recognized prison overcrowding and lack of state prison capacity as an emergency since at least 1987.

Since 1987, some steps have been taken to address overcrowding, including building new facilities and passing legislation. In 2013, then Gov. Mike Beebe and a majority of state legislators voted to approve new funding for a state prison but fell short of the requisite supermajority. Between 2003 to date, the state prison population has continued to rapidly grow, and no new state facilities with maximum security beds have been established during those two decades. The eventual addition of 500 beds at the North Central Unit in Calico Rock is a welcome start. But it is only a start. Again, note the projections of JFA: Arkansas’ prison population will grow by 1.4 percent per year. A 1.4 percent per year growth results in 18,100 state inmates in 2026 (an additional 1,000 state inmates) and 19,160 state inmates in 2031 (an additional 2,000 state inmates). Our county jails are currently holding approximately 2,000 state inmates. No reasonable person should discard these facts and deny the obvious — we need thousands of additional state prisons beds.

The paramount duty of government is to provide for the safety and security of its citizenry. With Arkansas placing at fourth highest in violent crime and fifth highest for property crime on a per capita basis, according to the FBI, it is no wonder, as Sheriff Watson said, “people don’t feel safe anymore.” There is little doubt in the minds of our sheriffs that public safety should be priority No. 1 for the incoming administration and state legislature.