Judges: MARK PRYOR, Attorney General
Filed Date: 12/1/1999
Status: Precedential
Modified Date: 7/5/2016
Mr. Leroy Brownlee, Chair Post Prison Transfer Board P.O. Box 34085 Little Rock, AR 72203
Dear Mr. Brownlee:
You have requested an Attorney General opinion concerning Act 1035 of 1999, which amended A.C.A. §
Persons who commit the following felonies on or after January 1, 1994, shall be eligible to be considered for discretionary transfer to the Department of Community Punishment by the Post Prison Transfer Board after having served one-third (1/3) or one-half (1/2), with credit for meritorious good time, of their sentences, depending on the seriousness determination made by the Arkansas Sentencing Commission, or one-half (1/2), with credit for meritorious good time, of the time to which their sentences are commuted by executive clemency:
A.C.A. §
In light of this amendment, you have asked:
What is the status of Act 1035 as it relates to the time frame of January 1, 1994, forward?
It is my understanding that there is concern as to whether the Act should apply only to inmates who commit the listed crimes after the effective date of the Act, or whether the Act should be interpreted to affect inmates who committed the crimes before the effective date of the Act, but after January 1, 1994.
It is my opinion that Act 1035 must not be applied to any inmate who committed a listed crime before the effective date of the Act (even those who committed a listed crime after January 1, 1994). It must be applied only to inmates who committed such crimes after the effective date of the Act. If the Act were applied to inmates who committed their crimes before the effective date of the Act, it would, in my opinion, constitute an ex post facto law, in violation of Article
The Arkansas Supreme Court has recently discussed the issue of whether a change in the law affecting an inmate's transfer eligibility after he has been sentenced constitutes a violation of the ex post facto prohibition. In Ellis v. Norris,
However, the Ellis court also made clear that a revocation or reduction in automatic eligibility for transfer (such as had occurred in Weaver)would constitute an increase in the inmate's sentence. See Footnote 1. It can thus be concluded that such a revocation (or reduction) in an inmate's automatic eligibility for transfer can be deemed to violate the ex post facto prohibition.
If Act 1035 is applied to inmates who committed their crimes before the effective date of the Act, it would not merely have the effect of removing certain inmates' opportunity to reduce their sentences; it would actually revoke the automatic eligibility for early transfer to which they had previously been entitled. Thus, under the reasoning of Weaver and Ellis, supra, I must conclude that the Act would actually increase the length of such inmates' incarceration, and if applied to them, would constitute an unconstitutional ex post facto law. Act 1035 therefore must not be applied to any inmate who committed one of the listed crimes before the effective date of the Act (including those who committed their crimes after January 1, 1994). Rather, the Act must be applied only to inmates who committed their crimes after the effective date of the Act.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:SA/cyh
We think a fair interpretation of this footnote [in Morales] is that it was not a disadvantage in the form of the lost opportunity to reduce the prison sentence that was dispositive in Weaver. Rather, it was the fact that a reduction in the amount of good time that was automatically awarded operated to increase the length of time Weaver would be in prison. In other words, the disadvantage suffered by Weaver, in the form of an increase in the punishment for his crime, is within the scope of the Ex Post Facto Clause.
Ellis,