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

Arkansas's parole eligibility rules treat repeat "violent felony offense or felony sex offense" convictions differently: those repeat offenders are generally ineligible for parole on the additional offense. The list of what counts as "violent felony offense" has been amended several times. The history matters, so trace it carefully:

• 2001 (Act 1805): General Assembly created the no-parole-for-repeat-violent-offense framework.
• 2015: General Assembly added "residential burglary" to the violent-felony-offense list. ADC interpreted this to apply only to residential burglaries committed on or after the April 1, 2015 effective date.
• 2022 (AG Op. 2022-010): AG concluded ADC's interpretation was wrong. Under that opinion, any residential burglary committed after August 13, 2001, qualified.
• ADC then recalculated parole-eligibility dates for ~270 affected offenders, pushing many of them out of parole eligibility.
• 2023 (Act 683): General Assembly responded by narrowing the rule. Now, residential burglary committed before April 1, 2015, is generally not a "violent felony offense" for parole purposes, with two exceptions:
  1. The sentencing order for the current sentence expressly cited A.C.A. § 16-93-609; or
  2. The offender was sentenced on or after May 24, 2022.

ADC Secretary Profiri sent four questions to the AG.

Question 1: Should ADC recalculate? Yes. Act 683 changes the law as of August 1, 2023. Although the act lacks a retroactivity clause, the AG concludes the act is "weakly retroactive": it changes the future legal consequences of past actions, which is permissible. The act explicitly applies "to the recalculation of parole eligibility for the" affected offenders. Also, the constitutional concerns that sometimes invalidate retroactive statutes (Ex Post Facto, Due Process, Takings, Contracts) do not apply because the act benefits the offenders.

Question 2: John Doe (residential burglary 2014, battery probation 2019, probation revoked 2023, sentenced to 10 years). Is John Doe parole-eligible on the battery sentence? Yes, unless the sentencing order for the battery expressly cited A.C.A. § 16-93-609. Because the burglary was before April 1, 2015, it does not generally count as a "violent felony offense" under Act 683.

Question 3: Offenders previously approved for parole but pulled back due to Op. 2022-010. Do those original parole approvals stand, or do they need re-decision? They need re-decision. Act 683 changes the law; the Parole Board must base its decisions on the current law. So the affected offenders must be reconsidered by the Parole Board, which will apply Act 683 to the new analysis.

Question 4: Affected offenders who were paroled and then revoked. Are they still eligible for parole going forward? Yes, for the same reasons as Question 1. The recalculation applies. Subsequent eligibility tracks the new law.

The deeper point about retroactive statutes: Arkansas courts use a "weak/strong" framework, like federal courts. A strongly retroactive statute changes past legal consequences in the past. A weakly retroactive statute changes past legal consequences only at and after the act's effective date. Act 683 is the weak kind. Federal cases apply this framework (Landgraf, Bowen v. Georgetown, etc.). The constitutional limits on retroactivity matter most when the change harms the affected party; benefits to the affected party generally do not raise the same constitutional concerns.

What this means for you

Currently incarcerated for residential burglary plus another offense

You may have been newly eligible for parole as of August 1, 2023, if your residential burglary was committed before April 1, 2015. The recalculation depends on:
- When was the burglary committed? Before April 1, 2015 = potentially eligible.
- Does your current sentencing order expressly cite A.C.A. § 16-93-609? If yes, the eligibility benefit does not apply.
- Were you sentenced (for the current offense) on or after May 24, 2022? If yes, the burglary still counts.

Ask your case manager whether ADC has recalculated your parole-eligibility date under Act 683. If you believe you should have benefited and have not seen a recalculation, raise it through the ADC grievance process or contact a lawyer.

Parole Board members

Your release decisions are governed by the law in effect at the time of the decision. For an offender approved before Op. 2022-010 but not released because of the opinion, you should reconsider. Apply current law (Act 683's narrower definition) to the new decision.

For an offender paroled and then revoked, eligibility for subsequent release follows the same recalculated framework. The revocation does not lock in the older parole-ineligibility status if the underlying eligibility has changed.

Department of Corrections operations

The recalculation under Act 683 should focus on offenders whose records show:
- A residential burglary conviction from before April 1, 2015 that was treated as a violent felony offense under Op. 2022-010.
- A current sentence for which parole eligibility was calculated based on that burglary counting as a violent felony.

For each such offender, check the current sentencing order:
- If it expressly cites A.C.A. § 16-93-609, parole eligibility does not change.
- If it was issued on or after May 24, 2022, parole eligibility does not change.
- Otherwise, recalculate under Act 683. The burglary no longer counts as a violent felony for the current parole-eligibility computation.

Document your recalculation methodology and audit trail. Any offender whose date moves should receive notice and have access to the grievance process.

Defense attorneys

If your client was sentenced and is incarcerated under the old framework (where the pre-April-2015 burglary blocked parole), check whether Act 683 helps. Run the analysis above. If ADC has not recalculated, send a written request and follow up with the Parole Board if necessary.

For new sentencing post-Act 683, watch the sentencing order language. If the order expressly cites A.C.A. § 16-93-609 (or if the offender was sentenced on or after May 24, 2022), the older burglary still counts as a violent felony. Sentencing strategy should consider whether the express citation is desirable from your client's perspective.

Prosecutors and sentencing courts

Act 683's two carve-outs (express § 16-93-609 citation; sentencing on or after May 24, 2022) preserve the older framework for some cases. If you want to preserve violent-felony treatment for an older burglary, the sentencing order should expressly cite § 16-93-609. The Act 659 of 2023 amendments (effective January 1, 2024) interact with this; consult both acts.

Families of incarcerated people

If your loved one's parole eligibility was changed in 2022 (Op. 2022-010 era) because a pre-April-2015 residential burglary was reclassified as a "violent felony offense," check whether Act 683 reverses that change for them. Contact ADC for a recalculation status check, contact your loved one's lawyer if they have one, or reach out to the Public Defender Commission for guidance.

Common questions

My burglary was in 2010 and I was sentenced for a separate offense in 2018. Am I eligible?
Probably yes. The burglary was before April 1, 2015. The sentencing was before May 24, 2022. Unless the 2018 sentencing order expressly cited A.C.A. § 16-93-609, Act 683 should restore your parole eligibility on the 2018 sentence.

My burglary was in 2010 but my current sentence is from 2024.
The 2024 sentence is post-May 24, 2022. The burglary still counts as a violent felony for that sentence under Act 683's carve-out. You are not benefited by Act 683.

My sentencing order from 2019 says "the defendant is sentenced under A.C.A. § 16-93-609." Does that block Act 683?
Yes. The express citation in the sentencing order is one of the two carve-outs that preserve the older framework. Your pre-April-2015 burglary still counts as a violent felony for that sentence.

I was approved for parole in 2021 but pulled back in 2022 due to Op. 2022-010. What now?
Act 683 changes the law. The Parole Board should reconsider you under the current law. Ask your case manager when the reconsideration will happen. The original 2021 approval does not automatically reinstate; the Board must make a new decision under current law.

Can ADC recalculate retroactively without me asking?
ADC should recalculate proactively for all affected offenders. If you have not seen a recalculation by a reasonable time after August 1, 2023, request one through your case manager and the grievance process.

Does Act 659 of 2023 affect this?
Act 659 also amends § 16-93-609, but its relevant provisions take effect January 1, 2024. For analysis after that date, consult both Act 683 and Act 659. The AG's analysis here addresses Act 683 only.

Background and statutory framework

The Arkansas parole framework treats "violent felony offense or felony sex offense" repeats specially: A.C.A. § 16-93-609 generally bars parole on the additional offense for these repeat offenders. The list of what counts is in § 5-4-501 and other statutes.

Residential burglary was added to the violent-felony-offense list in 2015. The interpretive controversy ran from 2015 through 2022 (Op. 2022-010 changed ADC's interpretation), then to 2023 (Act 683 narrowed the rule).

Retroactivity analysis follows the federal Landgraf v. USI Film Products framework (511 U.S. 244 (1994)): courts assess whether new provisions attach new legal consequences to past events. Statutes are presumed prospective, but legislatures can make them retroactive expressly or by clear implication. The constitutional limits (Ex Post Facto, Due Process, Takings, Contracts) generally restrict retroactive statutes that harm affected parties; statutes that benefit the affected parties usually do not raise those concerns.

The "weak vs. strong" retroactivity distinction is well-developed in federal courts (St. Bernard's Hosp., F.D.I.C. v. Faulkner, Nat'l Cable, Nat'l Medical Enterprises) and adopted in Arkansas analysis. Strongly retroactive statutes change past consequences in the past; weakly retroactive statutes change them only going forward. Act 683 is the weak kind.

Act 683's effective date is August 1, 2023, because it lacks an emergency clause or other specified date. See Op. 2023-031.

Citations

• A.C.A. § 16-93-609 (parole-ineligibility for repeat violent-felony offenders)
• Act 683 of 2023 (narrowing residential-burglary classification)
• Act 659 of 2023 (related amendments, effective January 1, 2024)
• Act 1805 of 2001 (original parole-ineligibility framework)
• Acts 1995, No. 901, § 2 (state-funded primary system, referenced in related opinion 2023-031)
• Ark. Att'y Gen. Op. 2022-010 (predecessor opinion that triggered the recalculation)
• Ark. Att'y Gen. Op. 2023-031 (effective dates for 2023 regular session acts)
• 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?

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.

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. Under the first scenario, any residential burglary that was committed on or after April 1, 2015, qualifies as a "violent felony offense." 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.

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. A law can be retroactive in two ways, which are sometimes called "strong" or "weak." A law is 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." 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. 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?

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