APPARENT ILLEGALITIES OF SENTENCING & EXECUTIVE CLEMENCY PRACTICES IN ARKANSAS - Apparent Illegalities Part 4 - Government - http://www.maxpagesplus.com/darkevilworld/Apparent_Illegalities_Part

It is also important to note that the more substantive legal claim involved is not likely to be one of “cruel and unusual punishment.” The law in that arCea is too gray and elusive, and courts have twisted the application of that concept to where it has become unrecognizable. The real issue in Arkansas is one of “due process and equal protection” by way of the 15th Amendment of the United States Constitution and commensurate Articles of the Arkansas Constitution,

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e.g., Article II, Sections 8, 10, 13, and 29, on the basis that because the legislature declared the eradication of disparate sentences under the new code, AND the intent to realize the imposition of comparable punishment for comparable criminal conduct, AND because it explicitly vested the courts with a duty to implement that command, THEN every sentence that is objectively proven to be disparate simply has no legislative authority to exist at all. Thus, the courts’ and other officials’ failures to eradicate it violates the 14th Amendment’s due process and equal protection proscriptions. No state, court, prosecutor or Attorney General can legally maintain a sentence that the Legislature has not authorized.

A governor’s duty and the potential civil liability if he fails to perform that duty is aggravated in Arkansas by another probable fact. Virtually all clemencies that the governor has granted thus far in the 20th Century were only for people whose cases did NOT in fact involve disparate sentences for comparable criminal conduct. That is, in virtually all those cases the governor merely exercised his lawful "discretion.” (These public records are kept by the Secretary of State.) He did so on purely subjective factors, (recall the comment by Justice Purtle, above). On the other hand, I am not aware of a single case in which the prisoner did have a provable disparate sentence where a governor actually eradicated it, even though he had a direct duty of office to do so. In other words, governors of Arkansas sometimes seem to have no problem exercising the clemency power when it is purely a matter of grace or political expedience, as with Wayne Dumond, and yet have never yet exercised it when it was in fact a duty of office to eradicate a disparate sentence.

Finally, after a declatory judgment and writ of mandamus has issued, if a governor still fails to eradicate a disparate sentence, then in a very novel way the courts are actually re-empowered to implement the relief that the governor refuses to implement despite civil sanctions. That is, every person is entitled to a remedy at law for a violation of right and law as a matter of Constitutional guarantee, (Arkansas Constitution, Article II, Section 13, above). The courts themselves would have to step in and eradicate the disparate sentence, which is the very thing that the legislature had commanded the courts to do initially! The hot potato will be right back in judicial laps where it belonged all along.

E. OTHER PERSONS LIABLE

It should be pointed out that others in government have, or may have the duty of office to act to eradicate a disparate sentence long BEFORE the governor does (but NOT necessarily a legal liability), beginning with the jury, judge, and prosecutor in the trial where a disparate sentence is imposed; reaching to the appellate court that affirms a challenged sentence on the basis of inappropriate extra jurisdictional authorities or by ignoring its own state’s non-judicial authorities; including the Attorney General for legally arguing against eradication of a disparate sentence based on (deliberately) misapplied legal principles; to the Arkansas Department of Corrections for executing an illegal sentence and to the Executive Clemency Board for finding “without merit” the clemency application of a prisoner, despite the showing that his sentence is disparate for comparable criminal conduct. Barring proof of conspiratorial actions of a certain kind, the jury, the judges and all along the chain, the prosecutor and the Attorney General and his staff cannot be sued. They have absolute immunity. Similarly, the Arkansas Department of Corrections cannot be sued for executing the disparate sentence because it has “qualified immunity”, meaning it is only relying upon official judgments and commitment orders from the courts in playing its role in the broader scheme of things.

However, the Arkansas Post-Prison Transfer Board, alternatively seated as the Arkansas Executive Clemency Board (currently chaired by Leroy Brownlee), would appear to be a legitimate defendant, for several reasons:

First, the Board is expressly commanded by statute to play a direct role in the clemency process per se (as opposed to its normal function as a parole authority unrelated to clemency or to the exercise of the executive power).

Second, it has drafted and implemented an official clemency “application form” where one of the “reasons” available to be checked in requesting clemency is “My sentence is excessive.” This, then creates a direct duty for the Board to truly evaluate whether an applicant’s sentence is indeed excessive as checked, that is, disparate for comparable criminal conduct.

Third, the Board is authorized to conduct quasi-judicial hearings, at which evidences may be adduced to support any claim for entitlement to clemency.

Fourth, it routinely issues meaningless boilerplate reasons for finding a clemency application “without merit”. Such “reasons” include “not enough time served” or “nature and seriousness of the offense.”

Fifth, the Board actually VOTES to deny clemency for one of these reasons, (which, I feel seriously oversteps its duty and authority as an information-gathering body on clemency and confuses its role as a separate parole authority where such decisions and reasons are its specific function.

Sixth, although the board is not directly named in the Constitution as an entity that has a direct duty to implement the legislative command, it nevertheless has that implicit duty to do it, especially where it has a direct statutory role in regard to executive clemency. In other words, it really doesn’t matter whether the Board “thinks” or “feels” that a particular offender whom it either recommends or denies based on subjective opinions, (whether or not legitimate), deserves clemency or not. If his sentence is in fact OBJECTIVELY proven to be disparate for comparable criminal conduct, there is an implied duty that it MUST recommend the prisoner for clemency FOR THAT VERY REASON. This is especially so where the Board fully knows and understands what “weight” is assigned by a governor to its “no merit” vote. To my knowledge, the Board’s negative vote was overridden by a governor only one time in recent history. That clemency was granted by the current governor, Mike Huckabee, when the Board had voted to execute a man on death row but the governor commuted the sentence to life without parole.

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Seventh, in virtually all cases where the Board voted favorably, no disparate sentence was at issue.

VI. APPARENT ILLEGALITIES OF CLEMENCY REGULATION POLICIES & LAWS

Apart from the probability that an Arkansas governor can be held to account civilly for not eradicating a proven disparate sentence, something very few ADC prisoners have the standing to litigate with any hope of success, the general clemency practices and policies that exist today are most probably unconstitutional as well, and THAT situation does apply to EVERYONE serving a sentence in the ADC.

Collectively, the policies that prisoners have to serve seven years, then twelve years, or to meet certain preliminary criteria before “being favorably considered” for clemency obstructed and obstruct the free and unhampered exercise of the applicant’s right to ask for clemency at any time, and for any reason he sees fit. In every such case the applicant simply defers to the governor’s good judgment and sense of justice and equity. No individual governor has the authority to actually implement a “policy” like this, and the Executive Clemency Board certainly does not. Of course, this is merely an exercise in semantics, because if challenged, a governor could privately decide to enforce that policy anyway and just never say that he was denying clemency because the policy was not satisfied.

In contrast to the mere “policies” of having required ADC prisoners to serve seven years, and then twelve years to be “fairly considered” for clemency, the laws titled Act 5 of 1993, AND Act 498 of 1999 appear to transcend being merely improper procedures to obstruct clemency, but they are a DIRECT INVASION of the executive branch of government by the Legislature, and they DIRECTLY (by proxy) exercise the executive power per se, both of which violate the separation of powers doctrine.

Insofar as the clemency “policies” are generated by the “Executive Branch” (under which both the governor and the ADC fall), they merely improperly ALTER the executive power because neither the governor not the ADC is authorized to create hurdles and roadblocks in a process in which the Constitution itself creates none. The more “real” and “actionable” component is that when each new governor (or the ADC) changes the policies whenever he feels like it, it creates an inherently arbitrary and capricious system, which is exactly what happened when hundreds of ADC prisoners were first “baited” with having to serve seven years before being “fairly considered” for clemency up to 1982 and then in 1982, just before they had served that seven years, the policy was changed to retroactively require twelve years. Later, it was proposed that they should have to serve fifteen years, then back to twelve years, and so on like that with each new governor, with changing political climates or because of circumstances internal to the criminal justice system.

In Arkansas this already inherently “capricious and arbitrary” practice has again been aggravated by the incomprehensible fact that although dozens of prisoners were at some time in the past found by the Board to have merit when applying for clemency, after the Governor then rejected these favorable recommendations (for purely political reasons), the same prisoners are now suddenly found by the Board to have “no merit” again, DESPITE the fact that their clemency eligibility and suitability only IMPROVED year by year. Perhaps THIS situation more than any other exposes the truly arbitrary, capricious and political nature of clemency in Arkansas. Any fair and reasoning person would be hard pressed to come up with a non-political explanation for why dozens of prisoners can have merit one time for clemency, then not have merit again for a while, then have merit for a while again, and then again have no merit.

It is inherently unjust and perverse to “play with” prisoners’ and their families’ minds, emotions and lives like this because the offenders’ made mistakes in their pasts. Act 498 may well have been the final stroke to legally send the Arkansas clemency system into being declared an arbitrary and capricious one. It is the fourth time since 1977 that the terms of the prisoners’ sentences were retroactively made more onerous after “false hopes” were dangled in front of them with each new policy and law.

First, the carrot was dangled seven years away, then moved and dangled twelve years away, then dangled one year further away still with Act 5, and then four years further away still with Act 298. The arbitrary and capricious nature of it cannot be denied any longer, especially where prisoners likewise are found to have merit for clemency by one “majority” composition of the Board, then without merit again when that composition changes. The Constitution did not vest the governor with the executive power to make a cat-and-mouse GAME of it, or to ALLOW this from his Board.

On March 13, 1999, Dr. Charles Chastain, a part-time Executive Clemency Board Member had a letter published in the Arkansas Democrat-Gazette newspaper proclaiming that because the sentence of death row inmate Bobby Fretwell was commuted to life imprisonment without parole, it was a clear demonstration that the clemency system in Arkansas “works” and is not merely a “meaningless process whose outcome is always foredrawn.” (His use of the word “always” betrays what is NOT being said.) This letter was a personal disappointment to me because Mr. Chastain KNOWS the arbitrary and capricious nature of the Board, and that it is not the rare example such as Fretwell that defines the twisted system, but the illegitimate denial of several HUNDREDS of deserving applicants that implicates it for what it really is: arbitrary, capricious and almost purely motivated by politics. That is especially so where Mr. Chastain HIMSELF apparently found without merit the clemency applications of several prisoners whom he had previously found to be WITH MERIT.

In 1993 I appeared before Dr. Chastain after Clinton directed that I be called to the Board in person (while he was making the run for the Presidency and the Dumond case was causing him problems). Chastain personally said to me that not only was the twelve years I had already served at that time more than enough time for my offense, but that my sentence itself was clearly excessive and that he would recommend me for clemency. The Board did find my case “with merit” and sent it on to the Governor. However, Clinton was then elected and Jim Guy Tucker was implementing his own agenda, so I was then found without merit again on the following three applications since 1992. I guess with the letter to “Voices” Mr. Chastain just needed to quiet his conscience for a little while. Despite what he said in his article, he knows the truth.

Legally, this entire spectrum of constant, retroactive and onerous policy changes that have plagued Arkansas for the past 20 years also violates the principle that the arbitrary and capricious impact these policies have is not necessary to further a “legitimate or compelling state interest” simply because the governor NEEDS NO REASON to either deny or grant clemency. Therefore, arbitrary “regulatory” policies are completely needless and do NOT justify the injury both to prisoners and their loved ones nor the injury to law and justice itself.

Unlike the mere clemency regulation policies before it, Act 5 of 1993, (which was instigated by Jim Guy Tucker shortly before he was convicted of several felony crimes) became a direct invasion of the executive power by the legislative branch of government and is a serious violation of separation of powers. Act 5 set all kinds of qualifiers and limitations, both upon the governor himself and upon the applicant. These included requiring a governor to wait 30 days after receiving an application before he can grant clemency. It also requires an applicant to have to wait one year before being able to reapply for clemency once denied. This actually translates into two or three years before the clemency gauntlet is run again.

However, most illegal of all is the fact that Act 5 “deems denied” any application which is not acted upon by the governor within 120 days. This “deemed denied” clause is a direct proxy exercise of the executive power and a direct invasion of the executive branch of government by the legislators. By that clause, the Legislature simply steps in and, in the place of the governor says, “Clemency denied”, not for lack of merit but only because the governor did not act fast enough! This 120 day time period can also be manipulated to allow “some” applicants to circumvent otherwise having to abide by the law, as shown by the letters from Robyne (Doyle) Culver, Assistant for Executive Clemency, previously cited.

The illegality of this clause is better understood if it is considered that had the legislature “deemed granted” any application not acted upon by the governor within 120 days, then the courts may ultimately have to declare such a law unconstitutional under the separation of powers doctrine (apart from the fact that it would per se create an arbitrary and capricious windfall to prisoners in whose cases the governor simply sat on the application for 120 days, while denying the same benefit in cases where he did act). It is no different just because Act 5 exercises the power in the negative.

Also, because it is in fact “clemency” that is being applied for under Act 5 (which, by law CAN ONLY BE REQUESTED OF THE GOVERNOR), saying that the application for “clemency” is “deemed denied” leaves no room for debate about what power the legislature is exercising by proxy and is invading directly. Act 5 is no different than if the legislature suddenly decided to pass a law that if the Arkansas Supreme Court did not make a decision on a direct appeal within 120 days, then the appeal was “deemed denied.” This would be an unquestionably illegal invasion by the Legislature of the judicial branch.

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