Can Arkansas nonprofit organizations use inmate labor or community-service workers from local jails and probation?

Plain-English summary

A prosecuting attorney asked whether two kinds of offenders, Act 309 inmates and community-service workers, could be put to work for nonprofit organizations like churches, county fairs, or social clubs.

The AG split the answer in three parts:

1. Act 309 inmates: no. Section 12-30-407 sends Arkansas Department of Correction inmates to county sheriffs or city police chiefs to perform "particular jobs for the facilities or for a political subdivision." The statute identifies only two end users: the jail facility itself, or a political subdivision. Nonprofits are not on the list.

2. Department of Community Correction offenders: generally yes. The community-correction statutes at § 16-93-1201 et seq. define "community correction" to include "community service programs" with "supervised and unsupervised work assignments and projects." The Board of Corrections regulation explicitly contemplates work-site agreements with nonprofits. Compliance with DCC regs and other state-law conditions still applies.

3. Other sentenced offenders: depends on the sentencing statute. "Community work project" sentences under § 5-4-803(b)(1) are restricted to projects on public lands, public buildings, public roads, public parks, or public rights-of-way, narrower than the nonprofit category. But "public service work" under § 5-4-322 (used for working off fines) is undefined in the statute and, on the ordinary meaning of "public service," likely reaches work for nonprofits. The AG cited Roberts v. State (Salvation Army substance-abuse program) as an example.

A separate authority lets the ADC make contractual arrangements for inmate labor and explicitly lists "civic organizations, other nonprofit organizations, and private citizens" (third on a priority list after state agencies and local governments).

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is an "Act 309 inmate"?
A: An ADC inmate released to local custody under Ark. Code Ann. § 12-30-407 (originally Act 309 of 1983). Local sheriffs or police chiefs request inmate assignments based on the job needs of jail facilities or political subdivisions, and ADC sends inmates with appropriate skills and backgrounds.

Q: Why can't Act 309 inmates work at a county fair (run by a nonprofit) but they can work for the county itself?
A: Because § 12-30-407 limits assignments to work that "directly benefit those facilities or a political subdivision." A county fair association is usually a nonprofit, not a political subdivision, even if the fair is on county property. The statute's plain language excludes nonprofits.

Q: What is the difference between "community service" and a "community work project"?
A: A "community work project" under § 5-4-803 is a specific kind of sentence for an eligible offender housed in a county or regional jail and is limited to projects on public lands, buildings, roads, parks, and rights-of-way. "Community service" under DCC's community-correction programs is broader, including supervised and unsupervised work that "provides substantial labor benefit to the community," and explicitly contemplates work-site agreements with nonprofits.

Q: Can a court order a probationer to do unpaid work for a church or social club?
A: Likely, if the sentencing track allows it. The probation conditions statute at § 5-4-303 lets a court attach conditions that are "reasonably necessary" to help the defendant lead a law-abiding life. The Arkansas Supreme Court has upheld a wide range of community work conditions, including service to faith-based organizations (Roberts v. State, Salvation Army).

Q: Can ADC contract with a nonprofit directly for inmate labor?
A: Yes, under § 12-30-405, but only on a priority order. State agencies come first, then counties, cities, and school districts, then civic and nonprofit organizations and private citizens, including those involved in preserving natural resources or public works.

Q: What if the nonprofit looks like it is really a private business?
A: That risk is part of why these statutes exist. ADC's Administrative Directive 15-03 makes it the responsibility of the local jurisdiction "to ensure that assigned inmate(s) are not used to provide personal services for private benefit." If the work would benefit a private interest, do not assign the inmate.

Background and statutory framework

Arkansas runs two parallel systems for putting offenders to work outside prison.

Act 309 program. Section 12-30-407 lets the Arkansas Department of Correction release inmates to local jail facilities so they can perform work for those facilities or the surrounding political subdivision. The statute is structured around three steps: (1) the local sheriff or police chief requests an assignment for a specific job need; (2) ADC builds a list of inmates with appropriate skills; (3) the local officer chooses inmates from that list. Each inmate must work "at jobs that directly benefit those facilities or a political subdivision." Nonprofit work falls outside that scope.

Community correction. Sections 16-93-1201 et seq. give the Board of Corrections authority to create programs (probation, parole, community service) for eligible offenders. Section 16-93-1202(2)(D) defines "community correction" to include "community service programs, including both supervised and unsupervised work assignments and projects such that offenders provide substantial labor benefit to the community." The Board's "Community Service Program" rule (AR 8.8) authorizes work-site agreements with nonprofits.

Sentencing pathways for other offenders. A defendant can be sentenced to a "community work project" under § 5-4-803(b)(1) (narrow, public-property work only), to "public service work" under § 5-4-322 (broader, undefined in the code), or to general probation conditions under § 5-4-303 (court has wide discretion).

ADC contracts. Section 12-30-405 lets ADC contract for inmate labor with state agencies, local governments, and nonprofit and civic organizations in a priority order.

Citations and references

Statutes:

• Ark. Code Ann. § 12-30-407 (Act 309 work assignments)
• Ark. Code Ann. § 12-30-405 (ADC contracts for inmate labor)
• Ark. Code Ann. § 16-93-1201 et seq. (community correction)
• Ark. Code Ann. § 16-93-1202(2)(D) (community service programs)
• Ark. Code Ann. § 5-4-303 (probation conditions)
• Ark. Code Ann. § 5-4-312(b) (community-correction assignment)
• Ark. Code Ann. § 5-4-322 (public service work)
• Ark. Code Ann. § 5-4-801(1) (community work project definition)
• Ark. Code Ann. § 5-4-803(b)(1) (community work project sentencing)
• Ark. Code Ann. § 5-65-306 (underage DUI public service mandate)

Cases:

• Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (statutory construction)
• Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996) (Salvation Army community service for underage DUI)
• Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985) (probation conditions standard)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-091
November 29, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Don McSpadden
Prosecuting Attorney
Sixteenth Judicial District
P.O. Box 2051
Batesville, AR 72503

Dear Mr. McSpadden:

This is in response to your request for my opinion concerning community service work by inmates and individuals who are on probation. Your question pertains specifically to (1) so-called "309 prisoners" and (2) others whom you identify as "community service workers who are either incarcerated or on probation and working off fines or doing work service as a condition of probation."

You ask: "May these individuals be used to work for non-profit organizations?" You note that non-profit organizations can be anything from a social club, to a church, county fair, or other organization.

RESPONSE

It is my opinion that 309 prisoners cannot be used to work for nonprofit organizations because these inmates are specifically assigned to work on the particular job needs of public detention facilities and political subdivisions. With regard to "community service workers," those offenders who have been assigned to community correction programs administered by the Arkansas Department of Community Correction can, in my opinion, generally be used to work for nonprofit organizations. As for community service work by other offenders, it is difficult to comprehensively address your question without knowing the Arkansas Code provision(s) under which the offenders were sentenced. But I address below several potentially applicable statutes.

DISCUSSION

309 Prisoners

The term "309 prisoners" refers to inmates who are released from the Arkansas Department of Correction (ADC) to authorized law enforcement officers for work assignment pursuant to Ark. Code Ann. § 12-30-407(a). The ADC reviews requests under section 12-30-407 from local law enforcement officers for the assignment of inmates based on the needs of the officers' jail facilities or political subdivisions:

County sheriffs, chiefs of police, or other authorized law enforcement officers of approved jail facilities may request assignment of inmates to their approved facilities to perform particular jobs for the facilities or for a political subdivision which are in a particular area of need of the facility or a political subdivision.

The ADC then develops a list of inmates "with appropriate skills or backgrounds for the particular job needs" and the local law enforcement officers choose inmates from the list who are "appropriate for the needs of their facilities or a political subdivision."

The primary rule of statutory interpretation is to read a statute as it is written. It is clear from the plain language of section 12-30-407 that 309 prisoners are assigned to work on the job needs of public detention facilities or political subdivisions.

The statute further specifies that the assigned inmates must work at jobs that "directly benefit" the public entities:

Such inmates are to work at jobs that directly benefit those facilities or a political subdivision and that are related to a particular inmate's background classification and where they are to be under supervision at all times.

Because 309 prisoners, i.e., ADC inmates who are released for work assignment pursuant to section 12-30-407, are assigned to work on the particular job needs of public detention facilities and political subdivisions, I conclude that they cannot be used to work for nonprofit organizations.

Community Service Workers

The individuals you refer to as "community service workers" presumably include offenders who have been assigned to community correction programs under Ark. Code Ann. § 16-93-1201 et seq. The term "community correction" is defined by this body of law to include "community service programs, including both supervised and unsupervised work assignments and projects such that offenders provide substantial labor benefit to the community." These programs are approved by the Board of Corrections and administered by the Department of Community Correction (DCC).

There is no general statutory prohibition against using such offenders who are under the jurisdiction of the DCC to perform work for nonprofit organizations. The absence of any such prohibition is reflected in the Board of Corrections' "Community Service Program" administrative regulation. The regulation defines "community service program" to include "work-site agreements with non-profit agencies or organizations ...." The regulation states that "[o]ffenders are placed at work-site assignments where there is no foreseeable danger to the offender, work-site staff, clients or members of the public."

As a general matter, therefore, offenders who have been assigned to community correction programs administered by the DCC can, in my opinion, be used to work for nonprofit organizations. But compliance must be had with DCC regulations and any other state-law requirements.

Additionally, the following statute specifically authorizes the ADC to "make contractual arrangements for the use of inmate labor" by nonprofit organizations:

The Department of Correction may make contractual arrangements for use of inmate labor by the following prioritized list:
(1) Other state departments and agencies;
(2) Counties, cities, and school districts; and
(3) Civic organizations, other nonprofit organizations, and private citizens, including, but not limited to, those responsible for the preservation of natural resources or other public works.

As for community service work by other offenders, it is difficult to comprehensively address your question without knowing under what Arkansas Code provision(s) the offenders were sentenced. One statute authorizes a court to condition an eligible offender's suspended sentence upon his incarceration in a county or regional jail to work on a "community work project," which is defined to include only projects on "public lands, public buildings, public roads, public parks, and public rights-of way ...." This statute may not be relevant to your question about "community service," however, because a "community work project" is distinct from "community service" under the probation and parole statutes.

Another statute authorizes a district court or city court to sentence a defendant to "public service work." This statute would appear to authorize what you describe as "working off fines" through community service work. The statute does not define "public service work." But "public service" is generally defined as "[a] service provided or facilitated by the government for the general public's convenience and benefit." The first rule of statutory interpretation is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. In my opinion, the ordinary meaning of "public service" supports the general conclusion that offenders sentenced to "public service work" under section 5-4-322 can perform work for nonprofit organizations.

It bears noting in this regard that conditions of probation imposed under section 5-4-322 must be "closely monitored and supervised" and must "bear a reasonable relationship to the offense committed or to future criminality and be reasonably necessary to assist the defendant in leading a law-abiding life." Another statute similarly provides in pertinent part as follows regarding conditions of probation:

(a) If a court suspends imposition of sentence on a defendant or places him or her on probation, the court shall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life.

(c) If the court suspends imposition of sentence on a defendant or places him or her on probation, as a condition of its order the court may require that the defendant:
(1) Support his or her dependents and meet his or her family responsibilities;

(3) Participate in a community-based rehabilitative program or work-release program that uses practices proven to reduce recidivism and for which the court may impose a reasonable fee or assessment on the defendant to be used in support of the community-based rehabilitative program or work-release program;
(4) Refrain from frequenting an unlawful or designated place or consorting with a designated person;

(8) Satisfy any other condition reasonably related to the rehabilitation of the defendant and not unduly restrictive of his or her liberty or incompatible with his or her freedom of conscience.

The Arkansas Supreme Court has offered the following observations regarding what conditions might be characterized as "reasonably necessary to assist the defendant in leading a law-abiding life":

Ark. Stat. Ann. 41-1203 [now Ark. Code Ann. § 5-4-303], conditions of suspension or probation, states in part that the court "shall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life." The statute lists some of the possible conditions the court may attach, including that a defendant be required to "refrain from frequenting unlawful or designated places or consorting with designated persons," and "any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty ...."

The broad objectives sought by probation are education and rehabilitation, and the conditions of probation and suspension should promote those objectives. It is generally held that conditions for probation will be upheld if they bear a reasonable relationship to the crime committed or to future criminality.

The "reasonably necessary" standard therefore serves as a restraint on discretion in developing conditions of probation, and must be recognized in connection with structuring any probation program.

Sincerely,

LESLIE RUTLEDGE
Attorney General