Does a 1998 conviction for sexual abuse trigger Arkansas's 'no parole' rule for someone who committed aggravated robbery in 2014, after the older offense was struck from the violent-felony list?
Plain-English summary
The Department of Corrections asked the AG how to apply Arkansas's repeat-offender no-parole rule when one of the prior offenses has been removed from the statutory list of violent felonies. The example: an inmate with a 1998 conviction for sexual abuse in the first degree, then a 2014 conviction for aggravated robbery. Under A.C.A. § 16-93-609(b), a defendant convicted twice of "violent felony" or "felony sex offense" must serve 100% of the second sentence with no parole. The catch: by 2014, sexual abuse in the first degree had been removed from the violent-felony list (Act 827 of 2007 deleted it as "obsolete," because Act 1738 of 2001 had repealed and replaced the underlying sexual abuse statutes with new sexual assault statutes).
Question 1 answer: No, the no-parole rule does not apply. The Arkansas Supreme Court has repeatedly held that parole eligibility is determined by the law in effect at the time the new crime is committed (Pitts v. Hobbs, Aguilar v. Lester, Boles v. Huckabee, Woods v. Lockhart). When the offender committed aggravated robbery in 2014, sexual abuse in the first degree was no longer on § 5-4-501(d)(2)'s list. The statute allows comparable felonies from "another jurisdiction" to count, but does not allow comparable in-Arkansas felonies to count. So the prior sexual abuse conviction does not qualify, and the offender is parole-eligible under the normal rules.
The AG noted this may not have been the legislature's intent. Act 827 of 2007 removed sexual abuse in the first degree as "an obsolete reference" (because the underlying offense had already been repealed in 2001), not because the legislature wanted to make repeat offenders parole-eligible. But the language of the statute is unambiguous: only listed offenses count.
Question 2 answer: A pre-1987 first-degree murder conviction still counts. Different from the sexual abuse situation. When the Arkansas Code was reorganized in 1987, statutes were renumbered and recodified, but the substantive crimes were the same. The Arkansas Supreme Court held in Johnson v. State, 2018 Ark. 42, 538 S.W.3d 819, that "[i]t is the act passed by the legislature, not the code, that is the law." A first-degree murder conviction from before 1987 is still a violent felony under § 5-4-501(d)(2)(A)(i) (which lists "Murder in the first degree, § 5-10-102"), even though the underlying conviction predates the current section number.
The distinction is important: recodification preserves the underlying offense, but repeal-and-replace creates a new offense. Sexual abuse in the first degree was repealed in 2001 and replaced with sexual assault offenses (which have different elements and felony classifications). Sexual assault is a different crime, not the same crime renamed. A 1998 sexual abuse conviction cannot retroactively become a sexual assault conviction.
The Protect Arkansas Act of 2023. The AG flagged that Act 659 of 2023 (the Protect Arkansas Act) amends § 16-93-609(b)(1) so that the existing rule applies only to offenses committed between August 13, 2001, and January 1, 2025. A new § 16-93-609(d)(1) covers parole-ineligible felonies from January 1, 2024, to January 1, 2025. For offenses on or after January 1, 2025, a comprehensive new release-eligibility scheme applies. So the question raised in this opinion is largely a transitional issue.
What this means for you
Corrections administrators and parole officers
When applying § 16-93-609(b) to a multi-conviction inmate, walk through these steps:
- Identify the date of the most recent qualifying conviction (the one that triggers § 16-93-609(b)).
- Look up the version of A.C.A. § 5-4-501(d)(2) in effect on that date.
- Confirm the offender has at least one prior conviction for an offense that was on the list at the time of the new crime. (For pre-recodification convictions, identify whether the offense was recodified, in which case the prior conviction still counts, or repealed and replaced, in which case it usually does not.)
- Apply 100% sentence service only when both prior and current convictions qualify under the version of the law in effect at the new offense.
Be especially careful with offenses removed from the list (sexual abuse in the first degree, by 2007; possibly others over time). The offender can be entitled to parole consideration that the prior version of the list would have denied.
Criminal defense attorneys
If your client is in custody on a 100%-sentence calculation that includes a removed prior offense, this opinion is direct authority. File a motion or seek a corrected sentence calculation. The AG opinion specifically points out that DOC could be incorrectly applying the law (the Smith circuit court order on Op. 2023-066 page 3, footnote 9, discusses just such a correction).
If your client has a pre-1987 conviction for an offense that was recodified (like first-degree murder), do not assume that conviction was wiped out by the Code revision. Johnson v. State says the underlying act of the legislature, not the code section, is the controlling law.
Prosecuting attorneys
When you file a charging information that triggers § 16-93-609(b), state on the record which prior conviction you are relying on and why it qualifies. If the prior offense is one that has been removed from § 5-4-501(d)(2), do not assume it still triggers the no-parole rule based on the version of the list in effect at sentencing.
Sentencing judges
Add a step to your sentencing checklist: confirm the version of § 5-4-501(d)(2) in effect on the date of the new offense. The list has been amended multiple times. Sentencing the defendant to a 100% term when the prior offense is no longer on the list creates remand exposure. The Protect Arkansas Act's transitional rules add further complexity for offenses near the January 1, 2025 cutoff.
Inmates and families
If you or a family member is serving a 100% sentence under § 16-93-609(b) based partly on a pre-Act 827 sexual abuse conviction, the calculation may be wrong. Speak with a public defender or a private criminal defense attorney about correcting the sentence under the framework in this opinion. Two cases the AG noted (Smith and Flow) are examples but did not squarely decide the point; this opinion is the AG's best statement of the rule.
State legislators
The AG explicitly notes that Act 827 of 2007 may have created an unintended gap. The Protect Arkansas Act addressed forward-looking parole ineligibility but did not retroactively reinstate sexual abuse in the first degree as a violent felony for older convictions. If the legislature wants those convictions to count, an amendment to § 5-4-501(d)(2) listing the repealed sexual abuse offense (as a comparable Arkansas felony) would do it. Without that amendment, the AG's reading governs.
Common questions
My family member is serving a 100% sentence and the prior offense is sexual abuse in the first degree from the 1990s. Is that calculation wrong?
It may be, if the new offense was committed after Act 827 of 2007's effective date. The AG's reading says the prior sexual abuse conviction does not qualify. Talk to a defense attorney about a sentence-correction motion.
Why doesn't sexual assault now count as the same as sexual abuse used to?
Because they are legally different crimes. Act 1738 of 2001 repealed the sexual abuse statutes and replaced them with new sexual assault statutes that have different elements and felony classifications. The AG would not read the new sexual assault offenses to encompass prior sexual abuse convictions; doing so would impermissibly expand the no-parole rule.
My uncle was convicted of first-degree murder in 1985, before the Code revision. Does that count for the no-parole rule?
Yes. Johnson v. State held that recodification (renumbering without repeal) preserves the underlying offense. A pre-1987 first-degree murder conviction still counts under § 5-4-501(d)(2)(A)(i).
What's the Protect Arkansas Act?
Act 659 of 2023, which restructures Arkansas's parole eligibility rules. For offenses committed on or after January 1, 2025, a new comprehensive release-eligibility scheme applies. The current § 16-93-609(b) regime is being phased out. If your offense is in the transition window, get current legal advice.
The AG opinion says DOC may have applied the law incorrectly in the Smith case. What does that mean?
In State v. Smith (a 2014 circuit court order), the offender claimed DOC had applied § 16-93-609(b) wrongly. The court modified the judgment to reduce the sentence, but did not rule on the merits. The AG cites Smith as one of the few examples where this exact issue surfaced; the legal question was settled by this opinion, not by Smith.
Are there other repealed-and-replaced offenses that could affect parole eligibility?
Possibly. The AG focused on sexual abuse in the first degree because it was the specific offense in the question. Defense attorneys should check the history of any prior conviction relied on for § 16-93-609(b) treatment, especially convictions that predate the major 2001 sex-offense revisions.
Background and statutory framework
Arkansas's repeat-offender no-parole framework is in A.C.A. § 16-93-609(b)(1). Triggered when, after August 13, 2001, an offender commits a violent felony offense or felony sex offense and has previously been convicted of another violent felony offense or felony sex offense. The list of qualifying offenses is in A.C.A. § 5-4-501(d)(2). § 5-4-501(d)(2)(B) allows a "comparable felony involving violence from another jurisdiction" to count, but the list of in-Arkansas qualifying offenses is exclusive (per Wooten v. State, 2016 Ark. 376, 502 S.W.3d 503).
The history of sexual abuse in the first degree (former A.C.A. § 5-14-108):
- Pre-2001: Listed as a violent felony in § 5-4-501(d)(2)(A).
- Act 1738 of 2001: Repealed the offense and replaced it with sexual assault offenses in §§ 5-14-124 to -127.
- 2003: Sexual assault in the first and second degrees added to § 5-4-501(d)(2).
- Act 827 of 2007, § 15: Removed sexual abuse in the first degree from § 5-4-501(d)(2)(A) as "obsolete reference."
The Arkansas Supreme Court rule that parole eligibility is determined by the law in effect at the time of the new crime: Pitts v. Hobbs, 2013 Ark. 457; Aguilar v. Lester, 2011 Ark. 329; Boles v. Huckabee, 340 Ark. 410, 12 S.W.3d 201 (2000); Woods v. Lockhart, 292 Ark. 37, 727 S.W.2d 849 (1987). All Arkansas Supreme Court (Ark. + S.W.2d/3d).
The recodification preservation rule: Johnson v. State, 2018 Ark. 42, 538 S.W.3d 819. "[I]t is the act passed by the legislature, not the code, that is the law."
The Protect Arkansas Act (Act 659 of 2023) amends § 16-93-609(b) and (d), creating a transitional and forward-looking framework for parole ineligibility.
Citations
- A.C.A. § 5-4-501(d)(2) (list of violent felonies and felony sex offenses)
- A.C.A. § 5-4-501(d)(2)(A) (in-Arkansas qualifying offenses)
- A.C.A. § 5-4-501(d)(2)(A)(i) (first-degree murder, § 5-10-102)
- A.C.A. § 5-4-501(d)(2)(A)(viii)–(ix) (sexual assault first and second degree)
- A.C.A. § 5-4-501(d)(2)(B) (comparable out-of-jurisdiction felonies)
- A.C.A. § 5-10-102 (first-degree murder)
- A.C.A. § 5-14-108 (former sexual abuse in the first degree, repealed by Act 1738 of 2001)
- A.C.A. § 5-14-124 to -127 (sexual assault offenses)
- A.C.A. § 16-93-609(b) (no-parole rule for repeat violent/sex offenders)
- A.C.A. § 16-93-609(b)(1) (trigger language)
- A.C.A. § 16-93-609(b)(2)(A) (definition of qualifying offenses by reference to § 5-4-501(d)(2))
- A.C.A. § 16-93-609(d)(1) (Protect Arkansas Act transitional ineligibility)
- Acts 2007, No. 827, § 15 (removed sexual abuse from violent-felony list)
- Acts 2023, No. 659 (Protect Arkansas Act)
- Pitts v. Hobbs, 2013 Ark. 457
- Aguilar v. Lester, 2011 Ark. 329
- Boles v. Huckabee, 340 Ark. 410, 412, 12 S.W.3d 201, 202 (2000)
- Woods v. Lockhart, 292 Ark. 37, 40, 727 S.W.2d 849, 851 (1987)
- Wooten v. State, 2016 Ark. 376, *9, 502 S.W.3d 503, 509
- Flow v. State, 2021 Ark. 48, 617 S.W.3d 706
- Johnson v. State, 2018 Ark. 42, *3, 538 S.W.3d 819, 821
- State v. Smith, No. CR-2008-982 (Circuit Court of Craighead County, Order, February 27, 2014) (sentence-correction example)
Source
Original opinion text
Opinion No. 2023-066
September 29, 2023
The Honorable Joe Profiri
Secretary of Corrections
Arkansas Department of Corrections
1302 Pike Avenue, Suite C
North Little Rock, Arkansas 72114
Dear Secretary Profiri:
I am writing in response to your request for my opinion on two questions relating to parole
eligibility.
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 any
felony sex offense." A list of crimes meeting that definition is found in A.C.A.
§ 5-4-501(d)(2).
The General Assembly also passed Act 1738 of 2001, which repealed several sex offenses,
including sexual abuse in the first degree, and replaced them with the sexual-assault
offenses found at A.C.A. §§ 5-14-124 to -127.
Before the 2001 legislative session, sexual abuse in the first degree had been listed among
§ 5-4-501(d)(2)'s violent felonies. It remained on this list until 2007, when it was removed
as part of a technical corrections bill for being "obsolete." Two of Act 1738's newly created
sexual-assault crimes, sexual assault in the first degree and sexual assault in the second
degree, were added to § 5-4-501(d)(2)'s list of felonies in 2003.
Against this background, you ask the following questions:
1. Does an offender with a prior conviction for A.C.A. § 5-14-108, sexual abuse in
the first degree, fall under the "no parole" provisions of A.C.A. § 16-93-609(b) if
his or her subsequent offense was committed on or after the effective date of Act
827 of 2007, which struck the provision from the list of "felonies involving
violence"? For example, if an inmate has a conviction for sexual abuse in the first
degree from 1998, and then was subsequently convicted of an aggravated robbery
committed in 2014, at which point sexual abuse in the first degree was not an
enumerated felony involving violence, is the inmate required to serve 100% of his
or her sentence for the aggravated robbery?
Brief answer: No, an offender who was previously convicted of sexual abuse in
the first degree and later convicted of another enumerated felony
committed after the effective date of Act 827 of 2007 would not be
required to serve 100% of his or her sentence under A.C.A.
§ 16-93-609(b).
2. If not, does this also apply to criminal offenses which were re-codified as part of
the 1987 revision of Arkansas law, or is it a distinguishing factor that these offenses
were re-codified instead of repealed and a new offense created, as is the case with
sexual abuse and sexual assault? For example, does a conviction for murder in the
first degree committed prior to the 1987 recodification of Arkansas law qualify as
a prior felony involving violence?
Brief answer: A conviction for murder in the first degree would qualify as a prior
violent felony offense for purposes of parole eligibility, regardless
of whether the crime was committed before or after the creation of
the 1987 Arkansas Code.
DISCUSSION
Question 1: Does an offender with a prior conviction for A.C.A. § 5-14-108, sexual abuse
in the first degree, fall under the "no parole" provisions of A.C.A. § 16-93-609(b) if his
or her subsequent offense was committed on or after the effective date of Act 827 of 2007,
which struck the provision from the list of "felonies" involving violence? For example,
if an inmate has a conviction for sexual abuse in the first degree from 1998, and then
was subsequently convicted of an aggravated robbery committed in 2014, at which point
sexual abuse in the first degree was not an enumerated felony involving violence, is the
inmate required to serve 100% of his or her sentence for the aggravated robbery?
Under A.C.A. § 16-93-609(b)(1), a person is not eligible for release on parole if, after
August 13, 2001, he or she commits a violent felony offense or felony sex offense and has
previously been convicted of another violent felony offense or felony sex offense. The
statute defines "a violent felony offense or any felony sex offense" as those offenses listed
in A.C.A. § 5-4-501(d)(2). While sexual abuse in the first degree was, at one time,
included in the category as a "felony involving violence" under § 5-4-501(d)(2)(A), the
General Assembly removed it from the list in 2007.
The scenario you describe is after this 2007 change. The Arkansas Supreme Court has
repeatedly held that parole eligibility is determined by the law in effect at the time the crime
is committed. In your scenario, the offender committed the crime of aggravated robbery
in 2014, at which point sexual abuse in the first degree had already been removed from
§ 5-4-501(d)(2)(A)'s list of felonies. While that statute allows a prior conviction of "a
comparable felony involving violence from another jurisdiction" to disqualify a repeat
offender for parole eligibility, it does not allow a comparable Arkansas felony conviction
to do so. Therefore, the offender's prior offense of sexual abuse in the first degree would
not qualify as "a violent felony offense or any felony sex offense" under § 16-93-609(b)
so as to make him ineligible for release on parole.
The General Assembly may not have intended this result when it passed Act 827,
particularly given its statement that sexual abuse in the first degree was removed from
§ 5-4-501(d)(2)(A) because it was "an obsolete reference." But the language of
§ 5-4-501(d)(2) and § 16-93-609(b) is unambiguous: a "violent felony offense or any
felony sex offense" means those offenses listed in § 5-4-501(d)(2). That subdivision
"clearly enumerates the specific crimes that fall within [the] definition" of a "serious felony
involving violence," only providing for comparable felonies to be included if they
occurred in another jurisdiction. This clear language means that an offender convicted of
sexual abuse in the first degree and later convicted of another aggravated robbery after
sexual abuse in the first degree was removed from § 5-4-501(d)(2)(A) would not be
required to serve 100% of his or her sentence for aggravated robbery under
§ 16-93-609(b).
Question 2: If not, does this also apply to criminal offenses which were re-codified as
part of the 1987 revision of Arkansas law, or is it a distinguishing factor that these
offenses were re-codified instead of repealed and a new offense created, as is the case
with sexual abuse and sexual assault? For example, does a conviction for murder in the
first degree committed prior to the 1987 recodification of Arkansas law qualify as a prior
felony involving violence?
The Arkansas Supreme Court has made clear that an existing law recodified as part of the
1987 Arkansas Code's creation is the exact same law before and after recodification: "It is
the act passed by the legislature, not the code, that is the law. This is a fundamental legal
principle." Thus, if a person was convicted of murder in the first degree before that crime
was recodified at A.C.A. § 5-10-102, the conviction would still be considered a prior
violent felony offense for purposes of § 16-93-609(b).
This situation differs from the scenario presented in your first question, where the sexual-
abuse laws were not merely recodified or amended. Rather, those laws were repealed and
replaced with new sexual-assault laws. While some of the elements of the new sexual-
assault laws and the repealed sexual-abuse laws overlap, they are different crimes with
different felony classifications. Consequently, we cannot state that sexual-assault crimes
listed at § 5-4-501(d)(2)(A)(viii)–(ix) encompass prior convictions for the repealed offense
of sexual abuse in the first degree. When the Protect Arkansas Act goes into effect fully,
this problem will be resolved because the bases for parole eligibility will change.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I
hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General