Should the Arkansas Department of Corrections recalculate parole eligibility for prisoners after Act 683 of 2023 narrowed which residential burglaries count as violent felonies?

Plain-English summary

The Department of Corrections asked how Act 683 of 2023 affects parole eligibility after an earlier Attorney General opinion led it to recalculate dates for about 270 offenders. The earlier opinion treated certain residential burglaries committed after August 13, 2001, as violent felony offenses. Act 683 changes the treatment of residential burglaries committed before April 1, 2015.

The AG gave four answers:

1. Recalculation: Starting August 1, 2023, the Department should recalculate parole-eligibility dates for offenders affected by Act 683. The AG found its effect on earlier burglaries permissibly retroactive because it changes legal consequences only from its effective date and benefits affected offenders.
2. The proposed battery case: A person with the residential-burglary and later battery history described in the request is eligible for parole consideration unless the battery sentencing order expressly says the person was sentenced under A.C.A. § 16-93-609.
3. Earlier release approvals: Act 683 does not preserve or cancel the Parole Board's prior decisions. After recalculation, the Board must consider the new calculation in making release decisions for affected offenders.
4. Parole after revocation: For the described offender whose earlier burglary was before April 1, 2015, parole eligibility remains unless the current sentencing order expressly invokes § 16-93-609 or the offender was sentenced on or after May 24, 2022.

Footnote 2 adds a separate timing point: Act 659 of 2023 also amends § 16-93-609, but the AG said those amendments do not change his conclusions here. Its relevant provisions take effect January 1, 2024. The opinion's analysis is limited to the questions about Act 683, and the footnote says to consult Act 659 going forward.

What this means for you

Reviewing a parole calculation

The opinion distinguishes residential burglary committed before April 1, 2015, from burglary committed on or after that date. For an earlier burglary, it identifies two exceptions to Act 683's general change: the sentencing order for the sentence currently being served expressly designates § 16-93-609, or the offender was sentenced on or after May 24, 2022. Eligibility for parole consideration is distinct from a decision to release someone.

Department and Parole Board staff

The AG says the Department must recalculate dates for affected offenders. For the question about prior release approvals, he says the Board must use the new calculation when making its release decisions. The opinion does not prescribe a notice, grievance, or audit procedure.

Common questions

When did Act 683 take effect according to the opinion?
August 1, 2023. Footnote 1 says the act lacks an emergency clause or another specified effective date.

Does a burglary before April 1, 2015, always stop counting as a violent felony offense? No. The opinion identifies exceptions when the current sentencing order expressly designates § 16-93-609 or the offender was sentenced on or after May 24, 2022.

Does an old Parole Board approval automatically restore release?
The AG says Act 683 neither affects nor refers to those earlier decisions. The Board must consider the recalculated eligibility in a release decision.

Does the opinion discuss Act 659?
Yes. Footnote 2 says Act 659's relevant amendments take effect January 1, 2024, do not change the opinion's conclusions, and should be consulted when determining the law going forward.

Background and statutory framework

The opinion describes Act 1805 of 2001, the 2015 addition of residential burglary to the violent-felony list, Opinion 2022-010, and Act 683 of 2023. It distinguishes laws that alter past legal consequences in the past from laws that alter consequences only after an effective date. The AG places Act 683 in the latter category and says its effect benefits the offenders covered. The official PDF's footnotes 4–7 cite authorities for that retroactivity discussion.

Citations

• A.C.A. § 16-93-609
• Act 1805 of 2001
• Act 683 of 2023
• Act 659 of 2023, § 255
• Arkansas Attorney General Opinions 2022-010 and 2023-031
• Landgraf v. USI Film Products, 511 U.S. 244 (1994)
• Bowen v. Georgetown Univ. Hospital, 488 U.S. 204 (1988)
• St. Bernard’s Hosp., Inc. v. Sullivan, 781 F. Supp. 576 (E.D. Ark. 1991)
• Nat’l. Cable & Telecom. Assn. v. F.C.C., 567 F.3d 659 (D.C. Cir. 2009)
• F.D.I.C. v. Faulkner, 991 F.2d 262 (5th Cir. 1993)
• Nat’l. Medical Enterprises, Inc. v. Sullivan, 957 F.2d 664 (9th Cir. 1992)
• 20th Century Ins. Co. v. Garamendi, 878 P.2d 566 (Cal. 1994)
• Harris v. Branin Transp., Inc., 711 A.2d 331 (N.J. 1998)

Source

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

Original opinion text

Opinion No. 2023-026

July 11, 2023

The Honorable Joe Profiri
Secretary
Arkansas Department of Corrections
1302 Pike Avenue, Suite C
North Little Rock, Arkansas 72114

Dear Secretary Profiri,
You have asked my opinion on several questions relating to parole eligibility for offenders who have been convicted of residential burglary. In Act 1805 of 2001, the General Assembly amended the law governing parole eligibility to prohibit parole for offenders repeatedly convicted of a “violent felony offense” or a “felony sex offense.” In 2015, the General Assembly amended Arkansas law to include residential burglary in the definition of a “violent felony offense.” You report that the Department of Corrections interpreted the 2015 law to only apply to residential burglaries that were committed after April 1, 2015, the date the law went into effect. But in Opinion No. 2022-010, my predecessor concluded that the Department’s interpretation was inconsistent with the law. Instead, according to that opinion, a residential burglary committed at any time after August 13, 2001, qualifies as a “violent felony offense.” You report that, upon receiving my predecessor’s opinion, the Department recalculated the parole-eligibility dates for approximately 270 offenders who were impacted by this new interpretation. In Act 683 of 2023, the General Assembly made further changes the law related to residential burglary. You interpret Act 683 to state that “unless the sentencing order expressly designates that the defendant was sentenced under [A.C.A. § 16-93-609], ‘a violent felony offense or any felony sex offense’ does not include residential burglary…committed before April 1, 2015, unless the defendant was sentenced on or after May 24, 2022.” In light of Act 683, you have asked the following questions:

1. Although Act 683 does not contain a retroactivity clause, declining to apply the law
   retroactively would render the legislation meaningless, since the entire period of
   applicability is prior to enactment of the new provision. Should the ADC recalculate the
   release eligibility dates for those offenders whose time was updated to reflect that they
   were ineligible for parole based on Opinion 2022-010?
   Secretary Joe Profiri
   Arkansas Department of Corrections
   Opinion No. 2023-026
   Page 2

   Brief answer: Yes, starting August 1, 2023, ADC should recalculate parole-eligibility
                dates for any offenders impacted by Act 683.
   

   2. [Assume that] John Doe has a 2014 conviction for residential burglary. In 2019, he is
      convicted and sentenced to 10 years’ probation for battery in the first degree. In 2023, his
      probation for battery in the first degree is revoked and he is sentenced to 10 years’
      incarceration at the Arkansas Department of Corrections. Is John Doe eligible for parole
      consideration on the sentence for battery in the first degree?
      Brief answer: Yes, unless the order sentencing the offender expressly states that he was
      sentenced under A.C.A. § 16-93-609.

   3. For offenders who were approved for parole or transfer to community supervision prior to
      publication of Opinion No. 2022-010, but either not released due to the opinion or released
      and subsequently returned to ADC custody in the absence of a revocation, does the initial
      decision to grant parole or transfer to community supervision stand, or is the offender
      required to be reconsidered by the Parole Board?
      Brief answer: The offender should be reconsidered by the Parole Board, which is required
      to make its release decisions based on the law in effect at the time the new
      decision is made.

   4. For offenders subject to this provision released on parole and then subsequently revoked
      by the Parole Board, is the offender eligible for subsequent release on parole or required to
      serve the remaining term of incarceration imposed by the sentencing court?
      Brief answer: Yes, the offender is eligible for parole for the same reasons explained in
      response to Question 1.

DISCUSSION
Question 1: Although Act 683 does not contain a retroactivity clause, declining to apply the law retroactively would render the legislation meaningless, since the entire period of applicability is prior to enactment of the new provision. Should the ADC recalculate the release eligibility dates for those offenders whose time was updated to reflect that they were ineligible for parole based on Opinion No. 2022-010? Yes, the parole eligibility dates for the offenders impacted by Act 683 should be recalculated. Act 683 clearly changes the legal consequences of past residential burglaries. While this change renders Act 683 retroactive, the retroactivity is permissible under the circumstances. To show this, I will detail: (1) Act 683’s provisions; (2) why those provisions are retroactive; and (3) why the retroactivity is permissible under the circumstances. Secretary Joe Profiri Arkansas Department of Corrections Opinion No. 2023-026 Page 3

1. What Act 683 requires. When Act 683 becomes law on August 1, 2023, a residential burglary
   qualifies as a “violent felony offense” under one of two scenarios. 1 Under the first scenario, any residential burglary that was committed on or after April 1, 2015, qualifies as a “violent felony offense.” 2 Under the second scenario, a residential burglary that was committed before April 1, 2015, qualifies as a “violent felony offense” only if one of the following is true: (1) the sentencing order governing the sentence the offender is currently serving “expressly designates that the defendant was sentenced under” A.C.A. § 16-93-609; or (2) the offender was sentenced on or after May 24, 2022, regardless of whether the sentencing order expressly references A.C.A.
   § 16-93-609.
   While the first scenario is already the law, the second scenario will significantly change the current law. Before August 1, 2023—when Act 683 goes into effect—a residential burglary committed on or after August 14, 2001, would be considered a “violent felony offense.” And any offender who committed an additional violent felony offense would be ineligible for parole on the additional offense. But when Act 683 goes into effect, the general rule will be that a residential burglary committed before April 1, 2015, does not qualify as a “violent felony offense.” Therefore, as you say, there will be numerous offenders whose eligibility for parole will change on August 1, 2023. The act itself makes clear that it is intended to apply “to the recalculation of parole eligibility for the” offenders who are affected by its terms. 3 Since there is no question that Act 683 is an attempt to alter the law governing parole eligibility for the set of offenders who committed residential burglary before April 1, 2015, the next questions are whether that alteration renders Act 683 retroactive and, if so, whether the retroactivity is permissible.
2. Why Act 683 is retroactive. To determine whether Act 683 is retroactive, one must determine
   whether the act expressly or impliedly alters the legal consequences of a past action or event. 4 A law can be retroactive in two ways, which are sometimes called “strong” or “weak.” 5 A law is

1
Because Act 683 of 2023 lacks an emergency clause or other specified effective date, the act becomes effective on August 1, 2023. See Ark. Att’y Gen. Op. 2023-031 (explaining the law governing effective dates for acts passed in the 2023 regular session). 2 While Act 659 of 2023 also amends A.C.A. § 16-93-609, those amendments do not alter my conclusions in this opinion. The relevant provisions of Act 659 become effective January 1, 2024. See Act 659 of 2023, § 255. Since your questions pertain solely to Act 683, my analysis is also limited to that act. Going forward, of course, one should also consult Act 659 when determining the law governing parole. 3 Act 683 of 2023, § 1 (emphasis added).
4
See Landgraf v. USI Film Products, 511 U.S. 244, 269–70, 280 (1994) (requiring courts to assess whether a statute is retroactive by “ask[ing] whether the new provision attaches new legal consequences to events completed before its enactment” and requiring courts to “first…determine whether [the legislature] prescribed the statute’s proper reach.”); see also Stephen R. Munzer, Retroactive Law, J. Legal Stud. 373, 373 (1977) (“A law is retroactive if it alters the legal status of acts that were performed before it came into existence.”). 5 While numerous courts and scholars have recognized and applied this distinction, they often use different labels for the two kinds of retroactivity: E.D. Ark.: St. Bernard’s Hosp., Inc. v. Sullivan, 781 F. Supp. 576, 590–91 (E.D. Ark. Secretary Joe Profiri Arkansas Department of Corrections Opinion No. 2023-026 Page 4

strongly retroactive if it alters the past legal consequences of a past action or event in the past. A law is weakly retroactive when it alters the past legal consequences of a past action or event only at and after the act’s effective date. There is no question that Act 683 alters the past legal consequences of past actions. Here, the past action is the commission of residential burglary before April 1, 2015. The current legal consequence of committing a residential burglary during that timeframe is that it renders the offender ineligible for parole on a subsequent “violent felony offense or felony sex offense.” But Act 683 alters the legal consequences of committing that action for most people. Further, this change happens only on and after the act’s effective date. Therefore, Act 683 is weakly retroactive.

3. Why Act 683’s retroactivity is permissible. Determining that an act is retroactive does not
   necessarily mean the act is unconstitutional. Acts of the legislature are presumed to apply only prospectively. But because this “presumption against retroactivity is [merely] a guide” or canon of interpretation and “not a constitutional rule,” an act “can explicitly or by clear implication be made retroactive.” 6 As shown above, Act 683 has expressly and by clear implication been made retroactive. Of course, applying an act retroactively might render the act unconstitutional “under one of the Ex Post Facto Clauses, one of the Due Process Clauses, the Takings Clause, or the Obligation of Contracts Clause,” or their counterparts under our state constitution. 7 None of these constitutional concerns are implicated here because the act benefits those offenders whom it affects. Therefore, since Act 683 expressly alters the legal status of events that occurred before the act was passed, the act is retroactive. And since those changes occur only at and after the act’s effective date, Act 683 is weakly retroactive. The specific way in which Act 683 is weakly retroactive ensures that it does not violate the offender’s constitutional rights. Therefore, Act 683 is permissibly retroactive, and the Department must recalculate the parole-eligibility dates of offenders who are affected by the act’s provisions. Question 2: [Assume that] John Doe has a 2014 conviction for residential burglary. In 2019, he is convicted and sentenced to 10 years’ probation for battery in the first degree. In 2023, his probation for battery in the first degree is revoked and he is sentenced to 10 years’ incarceration at the ADC. Is John Doe eligible for parole consideration on the ADC sentence for battery in the first degree?

1991); D.C. Cir.: Nat’l. Cable & Telecom. Assn. v. F.C.C., 567 F.3d 659, 670 (D.C. Cir. 2009); 5th Cir.: F.D.I.C. v. Faulkner, 991 F.2d 262, 266 (5th Cir. 1993); 9th Cir.: Nat’l. Medical Enterprises, Inc. v. Sullivan, 957 F.2d 664, 671 (9th Cir. 1992); Calif.: 20th Century Ins. Co. v. Garamendi, 878 P.2d 566, 607 (Cal. 1994) (en banc); New Jersey: Harris v. Branin Transp., Inc., 711 A.2d 331, 337 (N.J. 1998) (“A pure retroactive statute changes what the law was in the past. Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 220 (1988) (Scalia, J., concurring). A law or rule that has exclusively future effects, but that affects past transactions is ‘secondarily retroactive.’ Ibid. A secondarily retroactive law is valid so long as it is not arbitrary or capricious. Ibid.”); see also, Daniel E. Troy, Toward a Definition and Critique of Retroactivity, 51 Ala. L. Rev. 1329, 1334–35 (2000). 6 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 261 (West 2012).
7
Id. at 262.
Secretary Joe Profiri
Arkansas Department of Corrections
Opinion No. 2023-026
Page 5

As noted above in response to Question 1, under Act 683 most residential burglaries committed before April 1, 2015, are no longer considered “violent felony offense[s].” Under your example, because the residential burglary was committed before April 1, 2015, that offense would not prohibit parole on the subsequent incarceration for battery unless the sentencing order governing the battery “expressly designates that the defendant was sentenced under” A.C.A. § 16-93-609. Therefore, the answer to your question is: Yes, unless the order sentencing the offender for battery expressly states that he or she was sentenced under A.C.A. § 16-93-609.

Question 3: For offenders who were approved for parole or transfer to community supervision prior to publication of Opinion 2022-010, but either not released due to the opinion or released and subsequently returned to ADC custody in the absence of a revocation, does the initial decision to grant parole or transfer to community supervision stand, or is the offender required to be reconsidered by the Parole Board? Based on the facts you have provided, the Parole Board’s original decision to release the offender was based on an incorrect understanding of the offender’s parole-eligibility. On August 1, 2023, the law will change to match that earlier understanding. Act 683 neither affects the Parole Board’s earlier decisions nor even references them. Instead, the act requires affected offenders’ parole eligibility to be “recalculated.” Once that happens, the Parole Board will have to consider the new calculation in making release decisions for the affected offenders.

Question 4: For offenders whose parole-eligibility must be recalculated due to Act 683 who were released on parole and then subsequently revoked by the Parole Board, is the offender eligible for subsequent release on parole or required to serve the remaining term of incarceration imposed by the sentencing court? If the hypothetical offender in your question committed a residential burglary before April 1, 2015, then the offender is eligible for parole unless either of the following is true: (1) the sentencing order governing the sentence the offender is currently serving “expressly designates that the defendant was sentenced under” A.C.A. § 16-93-609; or (2) the offender was sentenced on or after May 24, 2022, regardless of whether the sentencing order expressly references A.C.A.
§ 16-93-609.

Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General