• Arkansas Democrat Gazette, John Moritz

New Arkansas laws targeting a variety of crimes

Faced with a mounting opioid-addiction crisis, a spate of violence in state prisons, a public corruption case and other concerns about crime, Arkansas lawmakers responded during this year's legislative session with a host of new laws toughening sentences and adding new criminal offenses.

Changes in existing laws include:

• The possession of paraphernalia related to heroin or fentanyl was reclassified from a misdemeanor to a felony punishable by up to six years in prison.

• Prisoners who assault guards will soon face the possibility of life in prison.

• Politicians who steal from their campaign funds will face increased fines and prison time.

Altogether, lawmakers during the three-month session passed more than a dozen bills lengthening sentences, according to an analysis by the Arkansas Democrat-Gazette.

In addition, 16 offenses were added to Arkansas' criminal codes. Some of them prohibited thefts from grave sites, threats to commit mass violence at schools, and the encouragement of suicide.

Meanwhile, lawmakers passed two bills during the session to lessen penalties for crimes. The reduced penalties were for elder abuse and violating the Online Insurance Verification System Act.

The Arkansas Sentencing Commission, which compiles a report on new and modified offenses at the end of each biennial regular legislative session, counted 11 laws modifying or enhancing penalties for criminal offenses and 19 laws creating new offenses. (Some of the laws treated as "new offenses" by the Sentencing Commission were counted by the newspaper as sentence enhancements, while other laws, such as those that modified the definition of an offense without changing the penalty, were not counted by the newspaper at all, resulting in different counts.)

After the 2017 session, the Sentencing Commission counted 13 laws modifying offenses and 17 laws creating new offenses. Lawmakers that year also passed omnibus criminal-justice legislation, Act 423 of 2017, to reduce crowding in the state's prisons by diverting more offenders into probation, parole and mental-health treatment centers.

Since that law went into effect, the number of people in prisons has fallen slightly. The Department of Correction held 15,733 prisoners on Friday, about 1,000 beyond its official capacity.

"Part of the work of reducing those numbers is thinking very carefully and strategically about sentencing ... who we send to prison and what for," said Zachary Crow, the director of DecARcerate, a private group that advocates for reducing the number of people in prisons.

It is unclear what effect the revised criminal code will have on Arkansas' prisons. The Sentencing Commission, which also prepares impact assessments for most bills that address criminal sentences, was either unable to determine the effect of most of the changes or determined that they would apply to fewer than 10 offenders in any given year.

Some of the new measures, such as the ban on female genital mutilation (Act 556) and the law increasing the penalty on cellphone scammers (Act 677), received bipartisan praise and were passed without any opposition.

Others, such as the bill creating the specific offense of theft of items from a grave site (Act 503), were subject to some concerns by lawmakers and faced closer votes.

Bob McMahan, Arkansas' prosecutor coordinator, said his office lobbied directly for three laws -- Act 505, which expanded the definition of absconding, and Acts 783 and 1014, which increased penalties for battery through a DWI and for possession of drug paraphernalia, respectively -- but he described each new penalty and sentence enhancement as an "extra tool" for prosecutors.

"If [the laws passed by the Legislature] made the prison population go up a little bit, it would be for the right reasons," McMahan said. "These are not crimes that are not harming people."

Only one piece of legislation, the bill to toughen penalties on inmates who assault correctional officers, was determined by the Sentencing Commission to have a measurable effect on the state prison budget. Act 582 made first-degree battery on a correctional employee a Class Y felony, punishable by up to life in prison -- the same as the punishment for attacking a police officer. Under most other circumstances, first-degree battery is a Class B felony, punishable by up to 20 years in prison.

The Sentencing Commission estimated that Act 582 will result in an additional 88 to 138 inmates being housed by the Department of Correction within 20 years, adding $1.9 million to $3 million in annual costs.

The Sentencing Commission based its calculations on numbers provided by the Department of Correction, which reported 51 instances of officers being attacked in 2018 and requiring hospitalization.

However, a spokesman for the department, Solomon Graves, stated that dating back to 2017, only one inmate had been charged with first-degree battery for assaulting an officer.

Graves said the costs associated with Act 582 would be "negligible" on an annual basis. The budget of the Correction Department is about $360 million in fiscal 2020, which begins July 1.

"When compared to the suffering a correctional employee sustains ... it's an appropriate sentence," Graves said.

Rep. Jimmy Gazaway, R-Paragould, is a former deputy prosecutor who was the primary sponsor of six bills that either created new offenses or lengthened penalties, more than any other lawmaker.

Gazaway said he worked with state agencies such as the Correction Department and the prosecutor coordinator's office to pass stricter penalties on smuggling prohibited articles into prison (Act 672) and the possession of paraphernalia related to heroin and fentanyl (Act 1014).

Both Gazaway and McMahan, the prosecutor coordinator, said Act 1014 was a response to the ongoing opioid epidemic in Arkansas, which has the second-highest rate of teen opioid abuse in the country. Act 1014 makes the possession of paraphernalia for the use of heroin or fentanyl a Class D felony, punishable by up to six years in prison. The same penalty already exists for the possession of meth paraphernalia, which Gazaway said he believed has lessened the impact of that drug in Arkansas.

"For a period of time, when you're trying to get control of a problem, you have to have a strong deterrent," Gazaway said.

Lawmakers also passed a bill targeting public corruption. Act 879 sets a new sentencing scale that makes it a felony to take campaign funds as personal income, a crime that had previously been classified as a misdemeanor.

The bill was introduced several months after the former chairman of the Senate Judiciary Committee, Sen. Jeremy Hutchinson, R-Little Rock, was indicted on a variety of federal charges last year, which included allegations that he used campaign funds for personal spending. Hutchinson has pleaded innocent to the charges.

The sponsor of Act 879, Sen. Will Bond, D-Little Rock, said the effort was not a direct response to Hutchinson's indictment, but rather was the result of a yearslong effort to put lawmakers "on notice" for malfeasance. Bond said he expected the law would send few politicians -- if any -- to state prisons.

Bond, a member of the Senate Judiciary Committee, also said he hoped lawmakers would consider the effect of harsh sentencing laws, particularly on nonviolent drug offenders, during future sessions.

"Generally, the Legislature is always inclined or gets drawn into increasing penalties," Bond said, before adding: "There's a lot of momentum to look at the overcrowding or the length of sentences."

Laws passed without an emergency clause during the 2019 session officially take effect July 24, 90 days after the session officially adjourned. An emergency clause specifies an effective date.

(501) 367-7890  l  contact@decarceratear.org  l  PO Box 7708, Little Rock, AR 72217  l   Newsletter

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