When a juvenile lifer is resentenced under Miller v. Alabama, does Arkansas' 70 percent parole rule apply to the new sentence?

Plain-English summary

After the U.S. Supreme Court's 2012 decision in Miller v. Alabama and the Arkansas Supreme Court's follow-up rulings, every Arkansas inmate who was sentenced as a juvenile to mandatory life without parole for capital murder had to be resentenced as a Class Y felony (10 to 40 years, or life). A prosecutor asked: once they get a term-of-years sentence, what percentage do they have to serve before they are parole-eligible?

The AG answered: 50 percent, not 70 percent. Arkansas' 70 percent law (§ 16-93-618) applies only to nine listed offenses, and the only homicide on the list is first-degree murder. Capital murder and first-degree murder are separate offenses with separate code sections (§ 5-10-101 versus § 5-10-102), so capital murder convictions, including Miller resentencings, fall outside the 70 percent law. They are governed instead by § 16-93-614(c)(3)(A), the 50 percent rule for Class Y felonies not on the 70 percent list.

That answer holds regardless of whether the crime was committed before or after July 28, 1995 (the effective date of the 70 percent law).

On the third question, about good time and jail credit for time served before the resentencing order, the AG declined to give a categorical answer. Those credits depend on the specific terms of the resentencing order.

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 a "Miller defendant" in Arkansas?
A: A person who, while under 18, committed capital murder and received a mandatory sentence of life without parole. After Miller v. Alabama (2012) and Jackson v. Norris (2013), each such defendant must be resentenced as if convicted of a Class Y felony, with a sentencing range of 10 to 40 years' imprisonment or life.

Q: Why does the 70 percent law not apply to capital murder?
A: Because the 70 percent law (Ark. Code Ann. § 16-93-618) lists the offenses it applies to, and capital murder is not on the list. The only homicide listed is first-degree murder (§ 5-10-102), which is a separate offense from capital murder (§ 5-10-101).

Q: What percentage of sentence does a Miller resentencing carry?
A: Per this opinion, 50 percent. That is the rule for any Class Y felony not specified in the 70 percent law, found at § 16-93-614(c)(3)(A).

Q: Does the date of the crime change the answer?
A: No. The AG concluded that the 50 percent rule applies "regardless of whether that day was before or after July 28, 1995."

Q: What about good time and jail credit before resentencing?
A: The opinion does not answer this categorically. The AG said eligibility "will depend on the terms of the [resentencing] order." Practically, the resentencing court decides how to credit the inmate for time already served and any earned good time.

Q: Did the 2013 Arkansas legislature change anything for new cases?
A: Yes. Act 1490 of 2013 amended § 5-4-104(b) and § 5-10-101(c)(1)(B) so that a person convicted of capital murder committed while a juvenile is sentenced to life without parole, or life with parole eligibility after serving at least 28 years. That regime applies to convictions after the act, not to Miller resentencings.

Background and statutory framework

From 1975 to 2013, the only penalties for capital murder in Arkansas were death and life imprisonment without parole. After Roper v. Simmons, 543 U.S. 551 (2005), the death penalty was off the table for juveniles. After Miller v. Alabama, 567 U.S. 460 (2012), so was mandatory life without parole.

In Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906, the Arkansas Supreme Court directed that the Miller-affected inmate be resentenced as if convicted of a Class Y felony, with a 10-to-40-year or life sentencing range. In Kelley v. Gordon, 2015 Ark. 277, 465 S.W.3d 842, the court held that Miller applies retroactively to all similarly situated inmates. The U.S. Supreme Court reached the same retroactivity conclusion in Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

The 70 percent law at § 16-93-618 is, on its face, an enumerated-offense statute. It lists nine offenses and applies a 70 percent parole-eligibility floor to each. First-degree murder is on the list; capital murder is not. The default 50 percent rule at § 16-93-614(c)(3)(A) covers any Class Y felony not on the 70 percent list.

The Arkansas Supreme Court's basic rule for statutory construction, recited in Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766, is to read words in their ordinary and accepted meaning. "Murder in the first degree, § 5-10-102" is unambiguous: it refers to the offense at that code section, not the separate offense at § 5-10-101.

Citations and references

Statutes:

• Ark. Code Ann. § 5-10-101 (capital murder)
• Ark. Code Ann. § 5-10-102 (first-degree murder)
• Ark. Code Ann. § 5-4-401(a)(1) (Class Y felony range)
• Ark. Code Ann. § 5-4-104(b) (juvenile capital murder, post-2013)
• Ark. Code Ann. § 16-93-614(c)(3)(A) (50% parole rule)
• Ark. Code Ann. § 16-93-618 (70% law)

Cases:

• Miller v. Alabama, 567 U.S. 460 (2012)
• Roper v. Simmons, 543 U.S. 551 (2005)
• Montgomery v. Louisiana, 136 S. Ct. 718 (2016)
• Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906 (Class Y resentencing for Arkansas Miller inmates)
• Kelley v. Gordon, 2015 Ark. 277, 465 S.W.3d 842 (retroactivity of Miller)
• Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (statutory construction)

Source

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

Original opinion text

Opinion No. 2016-096
November 21, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Mr. Larry Jegley
Prosecuting Attorney
Sixth Judicial District
224 South Spring Street
Little Rock, AR 72201

Dear Mr. Jegley:

This is my opinion on your questions about parole or transfer eligibility, and "good time" eligibility, for persons convicted of capital murder, and resentenced as a result of the ruling in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 (2012).

BACKGROUND

Juveniles and capital murder

From the 1975 enactment of the Criminal Code until 2013, the only penalties prescribed by Arkansas law for the crime of capital murder were death, and life imprisonment without parole.

Like older persons, those who were younger than 18 years of age at the time of their crimes, but were tried as adults and convicted of capital murder, were also sentenced to death or life imprisonment.

In 2005, the United States Supreme Court held that the death penalty cannot be imposed on a person who was under 18 at the time of his crime. In 2012, the Court held in Miller that such a person cannot be made subject to a mandatory sentence of life imprisonment without parole.

In 2013, the Arkansas Supreme Court held that the Arkansas inmate at issue in Miller must be resentenced as if he had committed a Class Y felony (i.e., be sentenced to 10 to 40 years' imprisonment, or life imprisonment).

In 2015, the Arkansas Supreme Court held that Miller must be applied retroactively to all who are similarly situated. Accordingly, every person imprisoned in Arkansas for committing capital murder while he was a juvenile and before 2013 (each, a "Miller inmate") has been or will be resentenced in accordance with Miller.

Parole eligibility

For a crime committed on or after July 28, 1995, Arkansas law provides that a person convicted of any of several listed offenses, including first-degree murder but not including capital murder, must serve 70% of his sentence before becoming eligible for parole or community correction transfer (the "70% law"). A person convicted of any Class Y felony committed before July 28, 1995, or of a Class Y felony not specified in the 70% law and committed on or after July 28, 1995, must serve 50% of his sentence before becoming eligible for parole or community correction transfer.

Your questions are:

1. For those Miller defendants who committed the offense of capital murder prior to July 28, 1995, what is the appropriate parole or transfer eligibility?
2. For those Miller defendants who committed the offense of capital murder subsequent to July 28, 1995, what is the appropriate parole or transfer eligibility?
3. Are Miller defendants eligible for good time prior to the resentencing date, or jail credit only?

RESPONSE

In my opinion, regardless of when his crime was committed, a Miller inmate resentenced to a term of years must, before becoming eligible for parole, serve the same percentage of his sentence as a person convicted of a Class Y felony not specified in the 70% law, committed on the same day as the Miller inmate's crime. In other words, the 70% law does not, in my opinion, apply to a term of years to which a Miller inmate is resentenced.

Upon inquiry, it appears that a Miller inmate's eligibility for good time and jail credit relating to the time he is incarcerated before entry of a resentencing order will depend on the terms of the order. I cannot profitably speculate about the terms of such orders and therefore am unable to render an opinion on their effects.

DISCUSSION

Question 1: For those Miller defendants who committed the offense of capital murder prior to July 28, 1995, what is the appropriate parole or transfer eligibility?

Question 2: For those Miller defendants who committed the offense of capital murder subsequent to July 28, 1995, what is the appropriate parole or transfer eligibility?

The 70% law provides that one who "is found guilty of or pleads guilty or nolo contendere to" any one of nine listed offenses "shall not be eligible for parole or community correction transfer ... until the person serves seventy percent (70%) of the term of imprisonment to which the person is sentenced ...." The only homicide offense included in the list is "[m]urder in the first degree, § 5-10-102."

Murder in the first degree and capital murder are separate offenses. Accordingly, a person convicted of capital murder (e.g., a Miller inmate) is not one who has been "found guilty of or [who has] plead[ed] guilty or nolo contendere to" murder in the first degree.

The Arkansas Supreme Court's approach to determining the meaning of statutes is familiar:

The basic rule of statutory construction is to give effect to the intent of the legislature. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Where the language of a statute is plain and unambiguous, we determine legislative intent from the meaning of the language used. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. However, when a statute is clear, it is given its plain meaning, and this court will not search for legislative intent. Rather, that intent must be gathered from the plain meaning of the language used.

Here, there is no doubt about the meaning of the words "[m]urder in the first degree, § 5-10-102," the language used to describe the only homicide offense to which the 70% law applies. The words clearly refer to the offense set forth in the code section cited. They do not refer to a separate offense (capital murder) set forth in a separate code section (§ 5-10-101).

It is accordingly my opinion that the 70% law does not apply to a term of years to which a Miller inmate is resentenced. Rather, in my opinion, a Miller inmate resentenced to a term of years must, before becoming eligible for parole, serve the same percentage of his sentence as a person convicted of a Class Y felony not specified in the 70% law, committed on the same day as the Miller inmate's crime, and regardless of whether that day was before or after July 28, 1995.

Question 3: Are Miller defendants eligible for good time prior to the resentencing date, or jail credit only?

Upon inquiry, it appears that a Miller inmate's eligibility for good time and jail credit relating to the time he is incarcerated before entry of a resentencing order will depend on the terms of the order. I cannot profitably speculate about the terms of such orders and therefore am unable to render an opinion on their effects.

Sincerely,

LESLIE RUTLEDGE
Attorney General