Frequently Asked Questions

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Related Information and Questions

Sentencing Order
Departure From the Sentencing Standards Grid
First Offender Act
Community Punishment Act
Probation
Arkansas Parole Board
Transfer Eligibility
DNA Detection
Sex Offenders
Extended Juvenile Jurisdiction
Expungement
Firearms, Pardons, and Clemency
Victims' Rights
Sentencing Changes
More Sentencing Information

1. SENTENCING ORDER

What is the Sentencing Order and what does it do?

The Sentencing Order (Order) replaces and combines the current Judgment and Commitment, Judgment and Disposition, and Departure Report forms. Its purpose is to document the disposition of criminal cases processed in the State's circuit courts. It provides the Arkansas Department of Correction (ADC) and the Department of Community Correction (DCC) with the legal basis for the custody and community supervision of an offender. Courts are required to use the Order beginning January 1, 2012. See A.C.A. § 16-90-402 and A.C.A. § 16-90-801(d)(11)(B).

Who developed it?

A working group composed of members from the criminal justice community was established to develop the Order. A.C.A. § 16-90-402 requires representatives from the ADC, the Arkansas Judicial Council and the Arkansas Prosecuting Attorneys' Association to develop a standardized judgment and commitment form. Act 570 of 2011 (Act 570) directed the Arkansas Sentencing Commission (the Commission) and the Administrative Office of the Courts (AOC) to develop and implement an integrated sentencing and departure form. The Act, however, did not repeal the provision in A.C.A. § 16-90-402.

Who completes the Order?

Pursuant to Arkansas Supreme Court Administrative Order Number 8 (Forms for Reporting Case Information in all Arkansas Trial Courts), the office of the prosecuting attorney is responsible for completing the Order. A copy of the Order may be downloaded from the AOC web site at http://courts.state.ar.us/aoc/forms.cfm. A certified copy of the Order is to be delivered by the sheriff with the Defendant to the proper correctional department.

How do I differentiate between incarceration in ADC and other sanctions on the Order?

For each offense, there is a section to indicate the Defendant's sentence. Each sentence option is listed within that section. See below for a discussion of when to use a particular sanction.

Imposed: This option is to be used when an offender is sentenced to a term of incarceration. Check boxes indicate whether the imposed sentence is a term of incarceration in an ADC facility; a sentence to the ADC with a judicial transfer to a DCC facility (Jud. Tran.); or a term of incarceration in a County Jail. Under the check boxes, indicate the number of months imposed. Please note: Do not subtract Suspended Imposition of Sentence (SIS) months from imposed months. A.C.A. § 5-4-104(e)(1)(B)(ii) prohibits the suspension of the execution of a sentence.
Probation: This option is to be used when an offender is placed on probation. Indicate the number of months on probation. If a sentence of probation includes a term of incarceration (Probation Plus), the Order has a section for entering the amount of incarceration time in either days or months.
SIS: This option is to be used when the offender is placed on Suspended Imposition of Sentence.
Other: This option is to be used when an offender receives a sentence of Life, Life Without Parole (LWOP), or Death. If the offender receives a death sentence, enter the execution date pronounced in court in the Sentence Options section.

Sentencing Order Elements

Act 570 mandated additional reporting on sentencing practices. Therefore, it is very important to enter all information formerly required on the judgment forms and departure report as well as all new information required by the Act.

New Elements: The Order incorporates new data elements necessary to fulfill reporting requirements by the Act. In addition to those elements, other changes were made, including the following:

i. Legal Statements: The statements in this section reflect the legal statements that appeared on the previous judgment forms. Also, there is a statement to indicate when the Court defers further proceedings and places the Defendant on probation.

ii. A.C.A. Number of Original Charged Offense: Whether the code provision changes or remains the same, this section reflects what the A.C.A. number of the charged offense was as it originally appeared on the Criminal Information.

iii. Defendant/Victim Information: These sections collect demographic information on age, gender, race and ethnicity for the Defendant and victim(s). The Order provides a separate page for multiple victims.

iv. Offense was nolle prossed, dismissed or acquitted.

v. Appeal from District Court.

vi. Probation/SIS Revocation: This section indicates if a particular conviction is the result of a probation or SIS revocation. An affirmative answer to this question applies to the current offense only and not to any new crime committed while on probation or parole. Please note: If the commitment is the result of a probation revocation, the seriousness level must still be entered. Although the sentencing guidelines are not applicable to revocations, transfer eligibility is still determined by the seriousness level of the offense.

vii. Durational or Dispositional Departure: If the departure is durational, the number of months above or below the presumptive sentence must be stated. See "Departure from the Sentencing Grid" on page 83 for further explanation.

viii. Extended Juvenile Jurisdiction (EJJ) applied: This section is for identifying whether the sentence is due to adjudication subject to EJJ. See "Extended Juvenile Jurisdiction" on page 90 for further explanation.

ix. Defendant has previously failed a drug court program: This section is for identifying whether the Defendant has failed a drug court program.

x. Consecutive/Concurrent Sentences: This section now appears with each offense. It is for identifying whether the sentence will run consecutive or concurrent with other offenses on the same Order or with sentences from another case. If the sentences for multiple counts on the same offense are consecutive, this information must be indicated in the Additional Information section of the Order.
Arkansas Sentencing Commission Report: Act 570 requires the Commission to report annually on compliance with the guidelines. See "Arkansas Sentencing Commission Annual Reports" on page 93 for more information. Therefore, the following information must appear on the Order.
Criminal History Score: The criminal history score represents the horizontal axis of the Sentencing Standards Grid (the Grid). Missing or inaccurate criminal history scores could cause perceived disparities in sentencing. A copy of the Criminal History Worksheet and instructions for completing the worksheet may be found on page 95 of this manual. A copy is also available online at http://www.arkansas.gov/asc/forms.html. See A.C.A. § 16-90-803(b)(2).
Seriousness Level: The seriousness level represents the vertical axis of the Grid. It determines the transfer eligibility of an offense, except in the case of a statutory override.
Presumptive Sentence: The presumptive sentence for an offense may be found on the Grid where the criminal history score and the seriousness level axes intersect. All available sanctions for an offense are listed in the cell where the two intersect and must be listed on the Order. Although the seriousness level must be entered for probation revocations, the sentencing guidelines do not apply to those proceedings. Therefore, the presumptive sentence information is not required for revocations. See A.C.A. § 16-90-803.
Frequently Omitted or Incorrect Elements: The following information is often omitted or incorrect and results in delays processing the final Order. This is not an all-inclusive list. It is for instructional purposes only.
Offense Date: Release eligibility is determined by the date of the offense. Without it, an offender's release date cannot be determined.
Inchoate Offenses: Citing the inchoate statute instead of the statute for the substantive offense does not give sufficient information as to why the person is being convicted. In this situation, indicate the substantive statute in the A.C.A. Number of Offense/Name of Offense section of the Order and check the appropriate box identifying the inchoate offense committed.
Seriousness Level: Transfer eligibility is determined by the seriousness level of the offense. While probation revocations are not subject to the sentencing guidelines, the seriousness level is still required to calculate the offender's transfer eligibility.
Total Time to Serve: This section is necessary in determining how long the offender is to be held. It is especially important to avoid problems when additional suspended sentences are imposed, multiple counts or cases are run consecutively, or there is an additional term of incarceration due to an enhancement.
DNA Sample Fee: If a defendant has been adjudicated guilty of a qualifying or repeat offense, as defined in A.C.A. § 12-12-1103(9), a DNA sample must be collected. Unless a DNA profile already exists, the Defendant must pay a $250 fee and have a DNA sample drawn. The Order must reflect the $250 fee.
Parole Revocations: Parole revocations are processed through the Arkansas Parole Board (Parole Board). Therefore, these should not appear on the Order.

What information is required to be on the Order or the offender will not be accepted by ADC/DCC?

The Order provides the correctional departments with their legal authority for taking custody of an offender. Therefore, it is critical that the information on the Order is accurate. A copy of a completed, signed Order must be sent to ADC before the offender can be placed on the waiting list. ADC checks the Orders for accuracy. Omissions or inaccuracies must be corrected before the ADC can take custody of an offender.

For offenders sentenced to the ADC, the following basic information is required on the Order: Defendant's name, date of birth, gender, race and ethnicity, the name and A.C.A. provision of each offense, the seriousness level of each offense, the length of sentence for each offense, the total time to be served for all offenses, the case number, and the court that sentenced the offender.
For offenders sentenced to a DCC facility, the same basic information is required to be on the Order. Additionally, offenders must have been convicted of a target offense and have no prior violent or sexual offenses in their history. If contacted prior to sentencing, DCC officials within each jurisdiction may offer assistance in determining the eligibility of an offender. If the local officials cannot make a determination, the DCC Court Referral Coordinator may be reached by telephone at
1-501-682-9563.
The number entered as an offender's total time to serve must equal the amount of time an offender is sentenced to the ADC or to the ADC with judicial transfer to the DCC for each offense. When calculating total time to serve, always consider enhancements and concurrent/consecutive sentencing.

How are inchoate offenses handled on the Order?

Attempt, solicitation or conspiracy to commit a substantive crime is ranked one seriousness level below the ranking of the substantive offense. See A.C.A. § 16-90-803(b)(1)(E). The effect of this is that the inchoate offense will have a different (lower) presumptive sentence than the substantive crime. For substantive crimes with a seriousness ranking just above the Transfer Eligibility Line, an offender who commits an inchoate offense will be eligible for release earlier because his or her crime will fall below the Transfer Eligibility Line.

For statutory classification purposes, an inchoate crime is classified one level below the substantive offense, i.e. a Class B felony would become a Class C felony. See A.C.A. §§ 5-3-201, 301, and 404. This reduction in felony class may be significant for eligibility for admission to a Community Correction Center (CCC). For example, a Class Y felony controlled substance offense is not a target offense, whereas Class A felony and B felony controlled substance offenses are in the target offense group. See A.C.A. § 16-93-1202(10)(A).
Please note: With the exception of capital murder, inchoate offenses are not listed on the Seriousness Reference Table. Since capital murder is statutorily exempt from the sentencing guidelines, the related inchoate offenses are specifically ranked.

Habitual Offender

Habitual offender status subjects the Defendant to an extended statutory range of punishment. Therefore, this must specifically be noted on the Order to inform ADC of the applicability of the statute. See A.C.A. § 5-4-501.

2. DEPARTURE FROM THE SENTENCING STANDARDS GRID

When do I need a departure reason?

Act 570 requires the Order to include information on any departure from the sentencing guidelines on placement and sentence length, the number of months above or below the presumptive sentence, and justification for the departure. See A.C.A. § 16-90-802(d)(11).

Where do I put the departure reason(s) and what information is required?
There is a section located near the end of each offense to indicate whether a sentence is a departure. Indicate either an Aggravating Departure Reason or a Mitigating Departure Reason, but never both for the same offense. If the sentence is higher than the presumptive sentence, indicate the Aggravating Departure Reason number. If the sentence is lower than the presumptive sentence, indicate the Mitigating Departure Reason number. Also, indicate if the sentence departure is durational or dispositional. If the departure is durational, indicate the number of months above or below the presumptive sentence.

What is the difference between a durational and dispositional departure?
A durational departure occurs when the imposed months are higher or lower than the presumptive ADC time. A dispositional departure occurs when the type of sanction given (AS, CCC, or ADC) is not listed as an option for the presumptive sentence.

When is a departure reason unnecessary?

The following are common examples of when a departure reason is unnecessary:

i. When the imposed sentence does not depart from the presumptive sentence;

ii. When the imposed sentence is the result of a probation/SIS revocation proceeding (See A.C.A. § 16-90-803(a)(1)(B));

iii. When a jury has recommended a sentence to the trial judge (See A.C.A. § 16-90-803(b)(4));

iv. Felony DWI (See discussion below);

v. Capital murder (See A.C.A. § 16-90-803(b)(5)); and

vi. When the offense is nolle prossed or dismissed, or the offender is acquitted.
Felony DWI: The Commission recognized that the mandatory prison sentences for felony DWI 4, ranked at a level 3, and DWI 5, ranked at a level 4, are above the presumptive sentence. The Grid does not recommend penitentiary time in the first two criminal history columns (score of 0 or 1) for DWI 4. For DWI 5, while penitentiary time is recommended when the offender has a criminal history score of 1, the recommended time is below the mandatory prison sentence set out in the statute. The Commission recognized these exceptions and does not require a departure reason for either of these.

What happens when there is a statutory override?

The statutory minimum or maximum ranges for a particular crime shall govern over a presumptive sentence if the presumptive sentence should fall below or above such ranges. See A.C.A. § 16-90-803(b)(3)(C).

3. FIRST OFFENDER ACT: ACT 346 OF 1975, CODIFIED AT A.C.A. §§ 16-93-301 – 16-93-303

Applicability: Act 346 applies to an offender who has not previously availed himself or herself of the provisions in this Act. In other words, this Act may only be used once. If an offender falsely swears that he or she has not used these provisions previously, he or she is guilty of a Class D felony. In addition, the statute does not require or compel any court to establish first offender procedures, nor does it give any defendant the benefits of these provisions as a matter of right. Please note: The provisions found in this Act are inapplicable to bench or jury trials.
Expungement: In order to get a record expunged or sealed under Act 346, the offender must plead guilty or nolo contendere. The judge of the circuit court or district court, without making a finding of guilt or entering a judgment of guilt, may defer further proceedings and place the Defendant on probation. The court may impose a fine of up to $3,500 and assess court costs without negating the benefits provided under this section and without causing the probation placed on the offender to constitute a conviction, except as provided in A.C.A. §§ 16-93-303(c)-(e).
Upon successful completion of the probation term, an offender is eligible for expungement or sealing of his or her record. If the offender violates a term or condition of probation, the court may enter an adjudication of guilt and proceed as would otherwise be the case.
Ineligible Offenders: The provisions in Act 346 are unavailable to those offenders committing sex offenses in which the victim was under eighteen. Act 1233 of 2011 stipulates that offenders convicted of a serious felony involving violence or a felony involving violence as defined in A.C.A. § 5-4-501 are not eligible for expungement under Act 346. See A.C.A. §§ 16-93-303(a)(1)(A). There may be other offenders who are disqualified under other specific statutes. Please refer to the Act for further information.

4. COMMUNITY PUNISHMENT ACT: ACT 531 OF 1993, CODIFIED AT A.C.A. §§ 16-93-1201 – 16-93-1210

(NOTE: A.C.A. § 16-93-1206, Sentencing alternative, was repealed by Act 570. This section included provisions on judicial transfers, presentence investigation, placement in a community correction program, trial court jurisdiction, etc. Portions have been rewritten at A.C.A. §§ 5-4-312 and 16-93-310.)

Applicability: Act 531 created the Department of Community Correction, which oversees three major areas: probation, parole, and the CCCs. This Act also provides that an offender who has been convicted of a target group offense may have his or her record expunged. For every offender sentenced under Act 531, the sentencing court shall issue a written order or commitment, whichever is appropriate. See A.C.A. § 16-93-1207 for further information on contents of the Order.
How many times may the provisions in Act 531 be accessed? In the application of this Act to probation or admission to a CCC, there are no statutory restrictions on the number of times an offender may access one of these provisions. However, for expungement purposes, A.C.A. § 16-93-1207(b)(1) places the following restrictions on the use of Act 531: the current offense must be a target offense; the offender must successfully complete probation, a commitment to the ADC with judicial transfer to the DCC, or a commitment to a county jail for one (1) of the designated target offenses; and the offender has no more than one (1) previous felony conviction and that previous felony conviction was not one of the specified offenses (i.e. a capital offense, murder in the first or second degree, first degree rape, kidnapping, aggravated robbery, or delivering controlled substances to a minor as prohibited in the former A.C.A. § 5-64-410).
Target group offenses: Offenses designated as "target offenses" are defined in A.C.A. § 16-93-1202(10)(A). Generally, these offenses are non-violent and non-sexual felony offenses. Misdemeanor offenses may also fall within the target group with two exceptions: a misdemeanor offense requiring registration as a sex offender or misdemeanor DWI. Please refer to the statute for further information.
Department of Community Correction: DCC is responsible for overseeing probation, parole, and the Community Correction Centers.
Community Correction Center: DCC operates these centers, which were formerly known as Regional Correctional Facilities (RCF). These centers offer structure, supervision, surveillance, drug/alcohol treatment, education and vocational programs, employment counseling, socialization and life skills programs, community work transition and/or forms of treatment and programs. For general information, contact 1-501-682-9510 or www.dcc.arkansas.gov. For information concerning admittance to a CCC or whether a particular offense qualifies as a target offense, contact the Court Referral Coordinator at 1-501-682-9563.
Expungement: In order to get a conviction expunged under Act 531, the offender must be an eligible "target offender." To be eligible the offense must be non-violent and non-sexual and the offender must be a member of the "target group" as defined by the statute. For a definition of "target offense" for purposes of expungement, please refer to the statute. Misdemeanor DWI offenders are excluded as per the text of the statute and other offenders may be excluded by the statute as well. If the offender successfully completes his sentence (probation, a commitment to the ADC with judicial transfer to the DCC, or commitment to a county jail for one of the target offenses), the trial court may order expungement of the record.

5. PROBATION

Probation Plus

Probation Plus is when an offender is sentenced to probation plus a period of confinement as a condition of the probation. If an offender is confined in a DCC facility, the maximum period of confinement is 12 months. If an offender is confined in a county jail, city jail, or other authorized local detention, correctional, or rehabilitative facility, the maximum period of confinement is 120 days. See A.C.A. § 5-4-304.

ADC & Probation

An offender may not be sentenced to a term of imprisonment to be followed by a period of probation. However, a court has the authority to sentence an offender to a term of imprisonment to be followed by a period of SIS. See commentary to A.C.A. § 5-4-104.

Can Class Y drug offenders receive probation?

Much confusion has arisen in the interpretation of A.C.A. § 5-4-104(e)(1), Authorized sentences generally, and A.C.A § 5-4-301(a)(1), Crimes for which suspension or probation is prohibited, as they relate to whether Class Y drug offenders may receive suspension or probation. Act 192 of 1993 amended both provisions to permit suspension and probation as alternative sentences for Class Y drug offenses. See Vanesch v. State, 343 Ark.381 (2001), Buckley v. State, 341 Ark. 864 (2000), Elders v. State, 321 Ark. 60 (1995), State v. Williams, 315 Ark. 464 (1994), State v. Galyean, 315 Ark. 699 (1994), State v. Whale, 314 Ark. 576 (1993). Please note: A habitual Class Y drug offender shall not be placed on probation. See discussion of A.C.A. § 5-4-301(a)(2) and State v. Joslin, 364 Ark. 545 (2006) below.

Can a habitual offender receive probation?

A.C.A. § 5-4-301(a)(2) specifically prohibits a habitual offender, as determined by A.C.A. § 5-4-502, from being placed on probation or suspended imposition of sentence. See State v. Joslin, 364 Ark. 545 (2006).

6. ARKANSAS PAROLE BOARD

The Parole Board is the release authority for persons sentenced to a term of incarceration in the ADC. Act 570 amended various provisions relating to the Parole Board, including: qualifications, training requirements, and duties of members; jurisdiction; and parole procedures. See A.C.A. §§ 16-93-201 et seq. and 16-93-615 – 617.

The Parole Board refers to the Prosecutor's Short Report for information on a case. Any information is helpful in making the decision to grant parole. Therefore, please include any information about the case, such as the facts of the crime and/or a brief history of an offender's opportunities at probation.

Parole eligibility procedures and standards of review are codified at A.C.A. § 16-93-615. Please note: These procedures were formerly codified at A.C.A. § 16-93-206.

7. TRANSFER ELIGIBILITY

Four Levels of Release Eligibility

One of the duties of the Commission is to establish transfer eligibility for offenses. The Commission has set the transfer eligibility line between seriousness levels six and seven. Offenders sentenced to a term of incarceration for offenses above the transfer eligibility line must serve one-half of their sentence before they are eligible for transfer. Offenders sentenced for offenses below the line must serve one-third of their sentence before they are eligible for transfer. Also, there are two statutory overrides which affect transfer eligibility. The four levels of transfer eligibility are listed below.

One-Half: A person sentenced to ADC for a felony ranked in seriousness levels seven through ten on the Seriousness Reference Table will become eligible for transfer to community supervision after serving one-half (1/2) of his or her sentence with credit for meritorious good time. For example, a person receiving a seventy-two (72) month sentence with optimal meritorious good time credits will be eligible for transfer to community supervision in eighteen (18) months.
One-Third: A person sentenced to ADC for a felony ranked in seriousness levels one through six on the Seriousness Reference Table will become eligible for transfer to community supervision after serving one-third (1/3) of his or her sentence with credit for meritorious good time. For example, a person receiving a seventy-two (72) month sentence with optimal meritorious good time credits will be eligible for transfer to community supervision in twelve (12) months.
100% Time Served – Statutory Override: Any person who commits a violent felony offense or any felony sex offense subsequent to August 13, 2001, and who has previously been found guilty of or pleaded guilty or nolo contendere to any violent felony offense or any felony sex offense shall not be eligible for release on parole by the Parole Board. For purposes of this section, a violent felony offense or any felony sex offense means those offenses listed in A.C.A. § 5-4-501(d)(2). In other words, an offender who is guilty of a violent or sexual felony offense must serve 100% of their time if this is their second or subsequent violent or sexual offense. For example, an inmate sentenced to a five year sentence must serve five years or a forty year sentence must serve forty years. See A.C.A. § 16-93-609.

When an offender has been committed to the ADC for a violent or sexual felony offense, ADC personnel run a criminal background check. After verifying that he or she has a previous conviction which falls under A.C.A. § 5-4-501(d)(2),ADC will automatically set their time to serve at 100%. Since this is an eligibility issue and not a sentence enhancement, it does not have to be alleged on the Criminal Information or noted on the Order.
70% Parole Eligibility – Statutory Override: For certain offenses, offenders are required to serve 70% of their sentence before reaching transfer eligibility. These offenses are: Murder in the first degree, § 5-10-102; Kidnapping, Felony Class Y, § 5-11-102; Aggravated robbery, § 5-12-103; Rape, § 5-14-103; Causing a catastrophe, § 5-38-202; Manufacturing methamphetamine, § 5-64-423(a) or the former § 5-64-401; Trafficking methamphetamine, § 5-64-440(b)(1); or Possession of drug paraphernalia with the purpose to manufacture methamphetamine, the former § 5-64-403(c)(5). Attempt, conspiracy, or solicitation to commit one of these offenses is not subject to 70% parole eligibility. Please note: Act 570 removed Possession of drug paraphernalia with the purpose to manufacture methamphetamine, now codified at A.C.A. § 5-64-443(b), from 70% parole eligibility. Offenders sentenced under the former § 5-64-403(c)(5) are still subject to 70% parole eligibility.

Only the methamphetamine offenses are subject to meritorious good time credits. However, in no event shall the time served by any person who is found guilty of or pleads guilty or nolo contendere to one of these methamphetamine offenses be reduced to less than 50% of the person's sentence. ADC time computation cards will still reflect 70% transfer eligibility status, but the transfer eligibility date will be calculated on the projected earned good time. Offenders sentenced to CCC via judicial transfer for drug related crimes that are target offenses are still subject to 70% parole eligibility with good time that will not reduce time served to less than 50% of their original sentence. See A.C.A. § 16-93-618 and the former A.C.A. § 16-93-611.

How is release eligibility affected by enhanced sentences or habitual offender status?

Enhancements: Release eligibility for sentence enhancements is generally determined by the specific code provision defining the enhancement. Unless otherwise noted in the specific enhancement statute, the percentage of time served shall be calculated the same as the underlying offense. Enhancements on underlying offenses above the transfer eligibility line would serve one-half (1/2) less good time. Enhancements on underlying offenses below the transfer eligibility line would serve one-third (1/3) less good time. For convictions subject to a statutory override, transfer eligibility of the enhancement portion of the sentence will be the same as the underlying offense.
Habitual Offender Status: The "two and three strikes" sections of the habitual offender statute, codified at A.C.A. §§ 5-4-501 (c) and (d) respectively, must also be specifically noted on commitments for the ADC to be aware of their applicability. A.C.A. § 16-93-615(h) states that an inmate who is sentenced under these provisions for a serious violent felony or a felony involving violence may be considered eligible for parole or for community correction transfer upon reaching regular parole or transfer eligibility, but only after reaching a minimum age of fifty-five (55) years.

Early Release

Offenders are generally kept until their transfer eligibility date. There are some exceptions that may allow for early release, including:

Prison Overcrowding Emergency Powers Act (EPA): The EPA is codified at A.C.A. §§ 12-28-601 et seq. The Board of Corrections may declare a prison overcrowding state of emergency in two situations. First, they may declare an emergency whenever the population of the prison system exceeds 98% of the rated capacity for thirty (30) consecutive days. In this case, inmates who meet the criteria set out in the statute may have their incarceration time shortened by no more than three months. Second, they may declare an emergency whenever the number of inmates on the county jail backlog exceeds 500 inmates. In this case, inmates who have been incarcerated for a nonviolent offense and have served a minimum of six months in an ADC facility may have their transfer eligibility date moved up one year. Criteria for release eligibility may be found at A.C.A. § 12-28-604.
Arkansas Boot Camp Act: The Arkansas Boot Camp Act is codified at A.C.A. §§ 12-28-701 et seq. Boot Camp is an ADC program, not a sentencing alternative. Eligibility is determined both by statute and ADC programming requirements. Offenders may be eligible for early release upon completion of the program. Questions concerning this program should be directed to the ADC Boot Camp Coordinator at 1-870-267-6999.
Parole Alternative for Terminally Ill or Permanently Incapacitated Inmates: Act 570 modified A.C.A. § 16-93-708, Parole alternative – Home detention. This provision allows terminally ill or permanently incapacitated inmates to be considered for transfer to parole supervision.
Parole Alternatives for Electronic Monitoring of Parolees (120 days): Act 570 created A.C.A. § 16-93-711, Parole alternatives – Electronic monitoring of parolees. This provision allows certain inmates to be released on electronic monitoring after serving 120 days in an ADC facility. The Board of Corrections is responsible for promulgating rules that will establish policy and procedures for implementation of the electronic monitoring program. Questions concerning this program should be directed to the Board of Corrections at 1-870-267-6754.

8. DNA DETECTION

Act 737 of 1997 set up a DNA database and data bank with the State Crime Laboratory to assist in "detecting recidivist acts." If an offender is convicted of certain "qualifying offenses," as re-defined by Act 1470 of 2003, they are required to give a DNA sample. The definition of "qualifying offense" is "any offense as defined in the A.C.A. §§ 5-1-101 et seq., or a sexual offense classified as a misdemeanor as defined by A.C.A. §§ 5-1-101 et seq., or a repeat offense as defined in this section." Refusal to provide a DNA sample is a Class D felony.

Juli's Law, codified at A.C.A. § 12-12-1006(a)(2), requires that a DNA sample be collected from a person arrested for certain crimes, including, capital murder, kidnapping, and sexual assault. Act 699 of 2011 amended this law to include rape among the crimes for which DNA must be collected upon arrest.

9. SEX OFFENDERS

The following Acts relating to sex offenders were passed during the 88th General Assembly. For specific questions concerning sex offender registration or restrictions, please contact the Arkansas Crime Information Center (ACIC) at 1-501-682-2222, or visit their website at http://www.acic.org/.

Registration

Act 64 of 2011 – Requires sex offenders to verify registration every six months after their initial registration date. Verification shall be done in person at the local law enforcement agency. The offender and law enforcement officer must sign and date a uniform ACIC acknowledgment form which will be filed with ACIC either electronically or by certified mail. See A.C.A. § 12-12-909.
Act 100 of 2011 – Creates A.C.A. § 12-12-924, regarding out-of-state sex offenders moving to Arkansas. Allows law enforcement to make immediate disclosure of an offender's registration in another state prior to completion of the sex offender assessment, which assigns a community notification level.
Act 143 of 2011 – Mandates all sex offenders to report to law enforcement: all computers or other devices with Internet capability to which the sex offender has access; all e-mail addresses used by the sex offender; and all user names, screen names, or instant message names used by the sex offender to communicate in real time with another person using the Internet. See A.C.A. §§ 12-12-906 and 12-12-908.

Act 286 of 2011 – For a sex offender who has been assessed as a Level 4, sexually violent predator, law enforcement is allowed to notify the community of the offender's Level 4 status during the administrative appeal process of the sex offender assessment. See A.C.A. § 12-12-922.

Act 1009 of 2011 – Requires that sex offenders sentenced and required to register outside of Arkansas shall: submit to assessment by Sex Offender Screening and Risk Assessment; provide a DNA sample; and pay a $250 mandatory fee within 90 days from the date of registration. Failure to pay is a Class A misdemeanor. See A.C.A. § 12-12-906.
Restrictions

Act 344 of 2011 – Allows a parent to petition the court for a background check of any adult member of the household age 18 or older that resides with the parent for custody and visitation determination purposes. The Sex Offender Registry may be checked for this purpose. See A.C.A. §§ 9-13-101 and 9-13-105.

Act 816 of 2011 – Creates A.C.A. § 5-14-133, Registered offender prohibited from entering a water park owned or operated by a local government. Creates a Class D felony for a Level 3 or 4 registered sex offender to knowingly enter a water park (defined as a recreational facility open to the general public and featuring a swimming pool).

Act 1023 of 2011 – Amends the class of registered sex offenders prohibited from working with children to include Level 3 or 4 registered sex offenders who are self-employed, independent contractors, or an employee of either. See A.C.A. § 5-14-129.

10. EXTENDED JUVENILE JURISDICTION: CODIFIED AT A.C.A. §§ 9-27-501 ET SEQ.

The State may request an EJJ designation in a delinquency petition under the following circumstances:

If a juvenile under the age of 13 at the time of the alleged offense was charged with capital murder or murder in the first degree, and the state has overcome presumptions of lack of fitness and lack of capacity. However, if the juvenile is age 13, the burden shifts to the juvenile to establish lack of fitness to proceed or lack of capacity.
If a juvenile is age 14 or 15 at the time of the alleged offense and was charged with crimes listed in A.C.A. § 9-27-318(b) and (c)(2).
A juvenile adjudicated under EJJ shall be housed by the Division of Youth Services of the Department of Human Services until they reach 16 years of age. At the age of 16, the juvenile shall be transferred to ADC.

Juveniles sentenced pursuant to EJJ are subject to parole as any other inmate within the ADC. Juveniles adjudicated for capital murder or murder in the first degree are also subject to parole. Juveniles will be given credit for time served in a juvenile detention or juvenile facility against any adult sentence.

11. EXPUNGEMENT

For specific questions concerning expungement, please contact the ACIC at 1-501-682-2222, or visit their website at http://www.acic.org/.

12. FIREARMS, PARDONS AND CLEMENCY

Firearms

No person shall possess a firearm who has been convicted of a felony. (A.C.A. § 5-73-103(a)(1)). An expunged conviction may serve as the basis for a conviction under this statute if the offense was committed after March 12, 1995. See Act 595 of 1995; see also Attorney General's Op. 2002-173. Act 1491 of 2009 amended A.C.A. § 5-73-103(b)(2) and provided that if a person receives an expungement under the First Offender Act or Drug Court Act, the same does not qualify as a conviction for purposes of the felon in possession of a firearm statute.

The Governor may restore the right of a convicted felon or adjudicated delinquent to own and possess a firearm with a pardon expressly restoring the right or without a pardon under certain circumstances. (A.C.A. § 5-73-103(d)).

For information on restoration of firearm rights, please contact:

Pardon/Firearm Restoration Coordinator
2801 South Olive Street, Suite 6D
Pine Bluff, AR 71603
Phone: 1-870-543-1033, Fax 1-870-879-6725

Pardons and Clemency

The granting of a pardon or clemency is a power given to the Governor of the State. Instructions for filing a request for a pardon or clemency may be found on the Governor's web site at http://www.governor.arkansas.gov.

Act 1169 of 2011 extends the time period for those persons denied executive clemency to file a new application from six to eight years. See A.C.A. § 16-93-207(d)(1).

13. VICTIMS' RIGHTS

The Arkansas Victim Information and Notification Everyday Program (VINE) is administered by the ACIC. VINE was created to allow agencies to notify victims reliably and efficiently with vital information on offenders and inmate custody status changes 24 hours a day, 365 days a year. To register for notification, a victim may call 1-800-510-0415 or visit the website at www.vinelink.com. See A.C.A. § 12-12-1201.

The Crime Victims Reparation Program is administered by the Arkansas Office of the Attorney General. Victims can receive help with medical bills, rehabilitation costs, dental expenses and other expenses they may incur as a result of a crime. For more information contact the Office of the Attorney General, Arkansas Crime Victims Reparations Program at 1-501-682-1020 or 1-800-448-3014. See A.C.A. §§ 16-90-701 et seq.

14. SENTENCING CHANGES

Act 570 of 2011

The Public Safety Improvement Act is a broad piece of legislation intended to curb the cost of correction, reduce recidivism, and hold criminal offenders accountable for their actions. Among many things, the Act raises the criminal liability thresholds for various theft offenses; creates a comprehensive new set of drug statutes; reorganizes and streamlines the probation and parole sections in the Arkansas Code; creates new sentencing and early discharge provisions; revises current probation and parole statutes to incorporate programs designed to rehabilitate rather than incarcerate; amends the procedures and parameters for the granting of medical parole; revises provisions for home detention through electronic monitoring; revises the drug court statutes to make them more efficient and effective; creates performance incentive funding for jurisdictions designed to reduce commitments to the ADC; provides for new record-keeping measures designed to gauge the effectiveness of the act; and makes technical corrections throughout the Arkansas Code that resulted from redefining, relocating, amending, and creating certain statutes. For a summary of the code provisions affected by Act 570, see http://www.arkansas.gov/fdemb/Act_570_summary.pdf.

2011 Acts

This section lists some other Acts of note from the 88th General Assembly, not previously discussed, that created or modified crimes, classifications, enhancements and definitions.

Act 39 – Expenses authorized by the Public Defender Commission (PDC) shall not include attorney fees for counsel privately retained for a defendant's defense. The PDC may authorize such payment provided counsel complies with the standards governing the counsel appointed by the court or employed or contracted by the PDC. See A.C.A. § 16-87-212.

Act 172 – Raises the penalty to a Class D felony for subsequent violations of subsection (a) which prohibits filing instruments affecting title or interest in real property in order to adversely affect such title/interest. Creates a Class C felony if a person violates subsection (a) because of the performance of official duties by the victim, and the victim is law enforcement, court personnel, a criminal justice employee, etc. See the Act for a complete list. See A.C.A. § 5-37-226.

Act 204 – Creates a Class D felony if an athlete agent, with the intent to induce a student-athlete to enter an agency contract, gives false information, makes a false promise, or furnishes a good or service to a student-athlete or any individual. See A.C.A. §§ 17-16-114 – 17-16-115.

Act 207 – Creates a Class D felony for Lottery Fraud. See A.C.A. § 5-55-501 (formerly codified at A.C.A. § 23-115-902).

Act 277 – Adds certified law enforcement officers to the class of persons protected by the Class D felony for aggravated assault of an employee of a correctional facility by causing them to come into contact with bodily fluids. See A.C.A. § 5-13-211.

Act 304 – Creates felony and misdemeanor offenses for improper or deceitful use of Prescription Drug Monitoring Program information. See A.C.A. § 20-7-610.

Act 590 – Amends the Unclassified felony for advertising or operating a cemetery as a permanent maintenance cemetery without a permit and/or failing to collect required contributions. See A.C.A. § 20-17-1018.

Act 697 – Creates A.C.A. § 5-26-204, Defrauding a prospective adoptive parent. Creates felony and misdemeanor offenses for knowingly obtaining a financial benefit from a prospective adoptive parent/agent with the purpose to defraud them.

Act 751 – Criminalizes possession, possession with intent, delivery, etc. of "bath salts," "bath crystals," etc. as Schedule I controlled substances; and "K2," "Spice," "Salvia," etc. as Schedule VI controlled substances. See A.C.A. §§ 5-64-204 and 5-64-215.

Act 836 – Creates felony and misdemeanor offenses for the possession or use of a cigarette rolling machine by a person licensed to sell cigarettes. See A.C.A. §§ 26-57-245 and 26-57-263.

Act 905 – Creates A.C.A. § 5-71-217. Creates a misdemeanor offense for Cyberbullying.

Act 1003 – Amends the Class C felony for Abuse of a Corpse by adding the conduct of "concealing a corpse," which is a continuing course of conduct. See A.C.A. § 5-60-101.

Act 1129 – Amends Sexual Assault in the Second Degree to add school principals, athletic coaches, and counselors to the class prohibited from having sexual contact with a student less than twenty-one (21) years of age. See A.C.A. § 5-14-125.

Act 1158 – Raises the penalty to a Class C felony for Abuse of a Corpse. See A.C.A. § 5-60-101.

Act 1168 – Raises the penalty to a Class D felony if a person uses tear gas or pepper spray against any law enforcement officer on duty and acting within the scope of his authority. See A.C.A. §§ 5-13-202 and 5-73-124.

Act 1177 – Amends the Class C felony for Interference with Custody by adding the conduct of "keeping" a minor from a parent or guardian. See A.C.A. § 5-26-503.

Act 1190 – Amends the age of a child victim from less than 17 to less than 18 in the following provisions: A.C.A. §§ 5-27-302(1), 5-27-401(5), 5-27-402, 5-27-403, 5-27-404, and 5-27-505.

Act 1193 – Creates A.C.A. § 5-36-124, Theft by receiving of scrap metal. It is a Class D felony if the value of the scrap metal is more than $1,000 and a Class A misdemeanor if the value is less than $1,000.

Act 1224 – Amends the laws concerning access to information held by ACIC by creating felony and misdemeanor offenses for the improper release, disclosure, or reporting of such information. See A.C.A. §§ 12-12-212 and 12-12-1002.

Act 1227 – Amends the Class B felony for Theft of Property by adding theft of utility property valued at $500 or more. Defines "utility" and "utility property." See A.C.A. § 5-36-103.

2011 Changes to the Seriousness Reference Table

The new seriousness rankings have been incorporated in the Seriousness Reference Table section of this manual. You may also find information concerning sentencing guidelines at http://www.arkansas.gov/asc/.

15. MORE SENTENCING INFORMATION

The Sentencing News

The Commission staff publishes an electronic newsletter, "The Sentencing News," which tracks U.S. Supreme Court, Arkansas Supreme Court, and Arkansas Court of Appeals decisions that relate to sentencing. This newsletter is e-mailed to all judges, prosecutors, public defenders, and all other criminal justice constituents. If you would like to receive this newsletter, please contact us with your e-mail address.

Arkansas Sentencing Commission Training

The Commission is required to conduct annual training regarding the sentencing guidelines, pursuant to A.C.A. § 16-90-802(d)(10). Additional trainings cover a variety of topics, including but not limited to, how to complete court forms, expungement, legal ethics for criminal attorneys, and segments relating to the Department of Community Correction, the Department of Correction, and the Arkansas Parole Board. Notification of training schedules will be published as they become available.

Arkansas Sentencing Commission Annual Reports

Act 570 requires the Commission to produce annual reports regarding compliance with sentencing guidelines, including the application of voluntary presumptive standards, and departures from the standards. The report shall include data collected from each county, and a county-by-county and statewide accounting of sentences to ADC and DCC, the average sentence length for sentences by offense type and severity level, and the percentage of sentences that are an upward departure from the sentencing guidelines. For sentences that are an upward departure from the sentencing guidelines, the report must include the average number of months above the recommended sentence. See A.C.A. § 16-90-802(d)(9).

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