Excessive Sentencing Project - Arkansas

Policies and rulings on lengthy imprisonment terms in Arkansas.

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  • Arkansas allows for parole. A.C.A. § 16-93-615.
  • Arkansas has both discretionary and mandatory LWOP. A.C.A. § 5-4-602. Arkansas also allows JLWOP.
  • Minimum age for transfer of a juvenile to adult court is age 14, and the minimum aged for JLWOP is also 14.  A.C.A. § 9-27-318(c)(2) 
State Constitution

Article 2, Section 9:

Section 9: Excessive bail shall not be required; nor shall excessive fines be imposed; nor shall cruel or unusual punishments be inflicted; nor witnesses be unreasonably detained.  Ark. Const. Art. 2, § 9 (2012).

NOTE: The case law generally interprets this section as the equivalent of the federal Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System - Arkansas’s sentencing guidelines are voluntary, and a defendant may not appeal sentence for a deviation from the guidelines. See http://www.state.ar.us/asc/pdfs/ 2003benchbook.pdf.
  • Habitual Offender Statute - A.C.A. § 5-4-501 Arkansas’s Habitual Offender statute is A.C.A. § 5-4-501.A sentence of 300 years under the Habitual Offender statute did not exceed life imprisonment since the only sentences greater than life would be life without parole and death.Franklin v. State, 308 Ark. 539, 542 (Ark. 1992). Arkansas law does not prohibit “a sentence of years that exceeds the usual life span of human beings.” Id.
Case Law

General  

In 1916, the Arkansas Supreme Court held that Article II, Section 9 of the Arkansas Constitution is “directed against the cruel or unusual character of punishment, and not against the duration of the punishment.” Williams v. State, 125 Ark. 287, 291 (Ark. 1916).

The Arkansas Supreme Court has declined to hear arguments that were raised for the first time on appeal, even if those arguments were constitutional claims. Strong v. State, 2000 Ark. App. LEXIS 488 (Ark. Ct. App. June 28, 2000); SeealsoWright v. State, 327 Ark. 455 (Ark. 1997).

Punishment, simply because it is severe, is not cruel and unusual. Pridgeon v. State, 266 Ark. 651 (Ark. 1979) (citing Blake v. State, 244, Ark. 37, 423 S.W. 2d 544 (1968)).

Arkansas law requires courts to undertake a comparative proportionality review of capital cases to ensure that a death sentence is “not imposed in a freakish, capricious, or whimsical manner.” Sheridan v. State, 313 Ark. 23, 39-40 (Ark. 1993).  The court compares death sentence appeals to death sentence appeals, and does not include any other capital murder cases. Id. at 40.

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State Constitution & Proportionality 

Jackson v. Norris, 2011 Ark. 49 (Ark. 2011), was overturned in Miller v. Alabama, 132 S. Ct. 2455, 2459 (U.S. 2012).

The Arkansas Supreme Court “has interpreted the provisions in both the state and federal constitutions identically on the issue of the prohibition against cruel and unusual punishment.” Bunch v. State, 344 Ark. 730, 739-740 (Ark. 2001). However, other legal authority or persuasive argument could change the court’s interpretation. See Id.

The following cases mention both the state and federal constitutions, but do not provide any separate state constitutional analysis:

  • Buckley v. State, 341 Ark. 864 (Ark. 2000) -
  • Thompson v. State, 280 Ark. 265 (Ark. 1983) -
  • Wilson v. State, 251 Ark. 900 (Ark. 1972) - Defendant, relying on Article II § 9 of the Arkansas Constitution, appealed his sentence of 24 years imprisonment for two counts of forgery and two counts of uttering. The court upheld this sentence under the state constitution, noting that such sentences are permitted under the Arkansas habitual criminal act.

In accordance with Eighth Amendment case law, “if the sentence fixed by the trial court is within legislative limits, we are not free to reduce it even though we might consider it to be unduly harsh.” Bunch v. State, 344 Ark. 730, 739-740 (Ark. 2001). SeealsoWilliams v. State, 320 Ark. 498 (Ark. 1995); Parker v. State, 302 Ark. 509 (Ark. 1990). However, the Arkansas Supreme Court has “carved out extremely narrow exceptions to this general statement of the law: (1) where the punishment resulted from passion or prejudice; (2) where it was a clear abuse of the jury's discretion; or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Bunch at 40. None of these three narrow exceptions applies where the punishment is both mandated by the legislature and have been approved of by the Supreme Court as consistent with the Eight Amendment. Id.

In Arkansas, courts “will not reduce or compare sentences that are imposed within the statutory limits. Unless the punishment is a barbarous one unknown to law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community, the court will not find that punishment authorized by statute is cruel or unusual.” Dunlap v. State, 303 Ark. 222, 230 (Ark. 1990). See also Parker v. State, 290 Ark. 94 (Ark. 1986)

Leading Court Discussions of Graham and Miller 

Cox v. State, 2011 Ark. 96 (March 3, 2011) (Graham does apply to non-homicide offense; no distinction between accomplices and principals offender with regard to criminal culpability; Claims under Eighth Amendment is not within the scope of error coram nobis proceeding.) 

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Bell v. State, 2011 Ark. 379 (September 22, 2011) (Graham does apply to non-homicide offense; no distinction between accomplices and principals offender with regard to criminal culpability) 

Hundley v. State, 2011 Ark. 380 (September 22, 2011) (Graham does apply to non-homicide offense; Graham does not bar LWOP) 

Murry v. Hobbs, 2013 Ark. 64 (Feb 14, 2013) (Miller does not apply to non-mandatory cases and does not require a transfer hearing for the imposition of LWOP) 

Mosley v. Hobbs, 2013 Ark. 142 (April 4, 2013) (Graham does not forbid the imposition of a life sentence on offender whose status as a habitual offender was established when he was a juvenile.) 

Whiteside v. State, 2013 Ark. 176, 426 S.W.3d 917 (April 25, 2013) (Miller applies to all criminal cases still pending on direct review; the “without parole” language in statute cannot be severed; Miller did not address the issue about intent to kill but focus on the mandatory nature) 

Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283 (Jan 23, 2014) (In Arkansas, where life means LWOP, parole-eligibility statute could not be severed to comply with Graham and Miller, and court can only reduce the sentence to maximum year of imprisonment; Graham does not mandate a resentencing procedure that takes into account a juvenile offender’s age and categorically ban prohibiting is sufficient consideration for offender’s age.) 

Britt v. State, 2014 Ark. 134 (March 20, 2014) (a sentence of LWOP imposed by jury from a range of possible punishments is not mandatory so Miller is not applicable) 

Hobbs v. Gordon, 2014 Ark. 225 (May 15, 2014) (Challenge under Miller to legality of LOWP for capital murder while juvenile is cognizable in habeas corpus; State’s argument that Miller does not apply retroactively was not adopted.) 

Ford v. State, 2014 Ark. 257 (May 29, 2014) (relief under Graham would be appropriate in writ of habeas corpus rather than Rule 37 .1 of Arkansas Rule of Criminal Procedure.) 

Brown v. Hobbs, 2014 Ark. 267 (June 5, 2014) (Miller requires consideration of offender’s age in only mandatory sentencing cases.) 

Bowen v. Hobbs, 2014 Ark. 271 (June 5, 2014) (Miller does not apply to non-mandatory cases so no consideration of offender’s youth is required in non-mandatory cases.)