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

Plain-English summary

Prosecutor Don McSpadden asked whether “309 prisoners” and people doing community service while incarcerated or on probation could work for nonprofit organizations such as churches, social clubs, or county fairs. Attorney General Leslie Rutledge divided the answer by the legal program governing the work.

Prisoners assigned to local facilities under the 309 program cannot be used to work for nonprofits. The governing rule assigns them to job needs of detention facilities or political subdivisions and requires their work to directly benefit those public entities.

Offenders assigned to community correction programs administered by the Department of Community Correction generally can work for nonprofits. The opinion points to a Board of Corrections regulation allowing work-site agreements with nonprofit organizations, subject to department rules and other state-law requirements. It also quotes a separate authority allowing the Department of Correction to contract for inmate labor with nonprofit organizations in a priority order after state and local government users.

For other offenders, the AG said the answer depends on the provision under which they were sentenced. A “community work project” described in the opinion covers specified public property. A separate “public service work” provision was read by the AG as generally allowing nonprofit work, while conditions of probation must satisfy the reasonableness standards she quoted.

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.

What this means for you

Sheriffs and 309 program managers

The opinion says 309 prisoners assigned for local work must serve the job needs of public detention facilities or political subdivisions. Do not treat the separate nonprofit contract authority or community correction programs as permission to assign 309 prisoners to a nonprofit.

Nonprofit managers and probation staff

First identify the legal program that governs the worker. The AG generally approved nonprofit work for Department of Community Correction participants, subject to its regulations and other state law. For other sentenced offenders, the opinion says the sentencing provision matters; it did not issue a single answer for every form of community service.

Common questions

Q: Can a nonprofit receive 309 prisoner labor through the local assignment program?
A: No. The AG said 309 prisoners are assigned to work for public detention facilities or political subdivisions, not nonprofit organizations.

Q: Can community correction participants work for a nonprofit?
A: Generally yes, according to the AG, with compliance required under department regulations and other state law.

Q: Does the opinion approve every probationer working for any nonprofit?
A: No. The AG said the answer for other offenders depends on the particular statute under which they were sentenced and on applicable probation conditions.

Q: Did the AG say a court upheld faith-based community service in this context?
A: No. The opinion quotes a general judicial standard for reasonable probation conditions; it does not cite a decision approving service for a faith-based organization.

Background and statutory framework

The opinion distinguishes the local 309 assignment program, Department of Community Correction programs, contracts made directly by the Department of Correction, and separate sentencing provisions for public service or community work projects. It says a probation condition must bear a reasonable relationship to the offense or future criminality and be reasonably necessary to help the defendant lead a law-abiding life. The opinion uses that standard as a restraint on discretion in structuring probation work.

Citations and references

Statutes: Ark. Code Ann. § 12-30-407(a); Ark. Code Ann. § 16-93-1201 et seq.; section 5-4-322; Ark. Code Ann. § 5-4-303.

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