Who is supposed to pick up an Arkansas inmate from a federal prison or another state's prison and bring them to the Arkansas Division of Correction once they finish their out-of-state sentence?
Subject
Whether any Arkansas official has a statutory duty to transport inmates from federal or out-of-state correctional facilities to the Arkansas Division of Correction or Division of Community Correction, and whether 18 U.S.C. § 3623 preempts Arkansas law on the topic.
Plain-English summary
Senator Gary Stubblefield asked the AG to untangle a 21-question knot about inmates with overlapping convictions in Arkansas and another jurisdiction. The core scenario: a defendant has a federal sentence (or an out-of-state sentence) and an Arkansas sentence stacked. They finish the federal or other-state sentence first. Now they need to go serve the Arkansas time. Who picks them up?
The AG synthesized the questions into three:
Q1: Who has the duty to transport these inmates? Nobody. The AG walked through the legislative history. From 1968 to 2015, A.C.A. § 12-27-113 placed the transportation duty on the Division of Correction: "It shall be the duty of the [Division of Correction] to transport all inmates committed to the [Division of Correction] to their respective institutions." Act 1171 of 2015 stripped that duty and reassigned a narrower transport duty to county sheriffs and licensed security contractors, but only for "inmates committed to the Division of Correction" who are already "in [the sheriff's] charge." If the inmate is in a federal facility in Texas finishing a federal sentence, no Arkansas sheriff has them in their charge. § 16-90-402 only obligates a sheriff "executing a judgment of confinement" to "deliver" inmates already in their possession; it doesn't authorize a sheriff to retrieve someone from another jurisdiction. The AG identified the gap and said legislative clarification is "likely warranted."
Q2: Who has the duty to take custody and confine them? Once an inmate reaches the Division of Correction, the Division must confine them (or transfer to Community Correction), with limited exceptions for bed-space shortages. But the Division has no affirmative duty to go acquire inmates from other jurisdictions. So if no one transports them to the Division, the Division never takes custody.
Q3: Does 18 U.S.C. § 3623 preempt this Arkansas statutory scheme? No. § 3623 lets a state request transfer of a federal prisoner before federal release, with the state paying expenses. None of the three preemption modes (express, field, conflict) applies. § 3623 is permissive, not exclusive, and addresses a different scenario (transfer before completion of federal sentence) than what Stubblefield asked about (transfer after completion).
The bottom line: there is a real gap in Arkansas law. The General Assembly created it in 2015 by removing the Division of Correction's transport duty without filling the hole for inter-jurisdictional inmates. Until the legislature fixes it, county sheriffs may be picking up these inmates as an informal practice (which Stubblefield's request confirms), but no Arkansas official has a statutory obligation to do so.
What this means for you
State legislators
If you serve on Judiciary or Corrections, this opinion is a request for legislation, dressed up as a legal opinion. The AG "likely warrants legislative clarification" line appears twice. The clean fix is to either:
- Restore part of the pre-2015 § 12-27-113(d) language assigning the Division of Correction the duty to transport inmates from federal or out-of-state facilities (perhaps with a reimbursement mechanism), or
- Expand § 12-27-113(d)'s county-sheriff duty to include inmates not yet in the sheriff's charge but committed to the Division of Correction by the sentencing judge.
Either route closes the gap. Without it, the practice continues to depend on county sheriffs voluntarily picking up inmates and being held in county jail "following transport," as Stubblefield described. That arrangement leaves counties bearing costs without a clear right to reimbursement under § 12-27-114, which is limited to cases where DOC "cannot accept inmates from county jails due to insufficient bed space."
County sheriffs
If you've been picking up Arkansas inmates from federal or out-of-state facilities, the AG opinion confirms what you may already know: there's no statutory duty to do so, and § 12-27-114 reimbursement is limited to bed-space-shortage cases for inmates already in your jail. Practical implications:
- You can decline. No Arkansas statute compels a sheriff to retrieve an inmate from another jurisdiction. Section 16-90-402's "deliver" duty applies only when the inmate is already in your "possession or control."
- Document costs if you do go. If the Division of Correction won't reimburse, the legal authority for cost-shifting is unclear. Collecting receipts gives you something to bring to the General Assembly or to the AG's office for a follow-up opinion.
- Coordinate with the sentencing court. Sometimes the cleanest answer is for the sentencing judge to issue an order under § 16-90-402 directing transport once the federal release date is set; that gives the sheriff a paper trail and a colorable basis for reimbursement.
Division of Correction officials
The 2015 amendment took your transport duty away. Don't accept claims that you have a duty to retrieve inmates from out-of-state under current law. You do have a duty to confine state inmates in your custody, with the bed-space exception in § 12-27-114, but that's a duty triggered by inmates being delivered to you, not a duty to acquire them.
Prosecutors and criminal-defense attorneys
This opinion changes how you should think about consecutive sentences across jurisdictions. If your client has a federal sentence and an Arkansas sentence stacked, there is no automatic mechanism to ensure they are transported to the Division of Correction once the federal sentence ends. Practical implications:
- At sentencing, if your client wants to start the Arkansas sentence promptly, consider asking the federal court (under 18 U.S.C. § 3623) to transfer them to Arkansas pre-release, with the State requesting the transfer and bearing the expense.
- If the State doesn't make the request, your client may sit at the federal facility past their release date until informal arrangements catch up.
Federal Bureau of Prisons liaisons
Section 3623 transfers require a state request and state payment. If Arkansas isn't requesting transfers because no Arkansas official has the duty to do so, your office may need to flag inmates approaching release with stacked Arkansas sentences and prompt a request, or face informal handoffs that may or may not happen.
Common questions
Q: What changed in 2015?
Act 1171 of 2015, § 1, amended A.C.A. § 12-27-113. Before 2015, the Division of Correction had a broad duty: "to transport all inmates committed to the [Division of Correction] to their respective institutions." After 2015, only county sheriffs (or deputies, or licensed security contractors) have a transport duty, and only for inmates already in the sheriff's charge. The statute didn't add a fallback for inmates in federal or out-of-state facilities.
Q: Why did the legislature do that?
The opinion doesn't say. The 2015 act may have been about cost-shifting (counties absorbing transport responsibility) or simply about reorganizing duties. Either way, the gap for inter-jurisdictional inmates wasn't addressed.
Q: What about 18 U.S.C. § 3623? Doesn't that solve it?
No. § 3623 is a federal statute that lets a state request the federal Bureau of Prisons transfer a state-convicted federal prisoner to a state facility before the federal sentence ends. It applies only "prior to … release from a Federal prison facility." It does not address inmates who have completed their federal sentence and are awaiting Arkansas transport. § 3623 also requires the state to bear the transfer expenses, but no Arkansas statute identifies a funding source.
Q: Does the U.S. Constitution require Arkansas to take its inmates back?
Constitutional law doesn't impose that duty. The Supremacy Clause makes federal law supreme over conflicting state law, but federal law here (§ 3623) is permissive, not mandatory.
Q: Is the inmate just stuck?
In practice, no. Sheriffs do pick up these inmates informally, and the Division of Correction does receive them. The opinion is flagging a legal gap, not a practical one. If a sheriff or the Division ever refused, the legal answer right now is that no statute compels them.
Q: Could a court order the transport?
A circuit court could potentially issue a writ to the appropriate official, but the threshold question is whether any Arkansas official has the underlying duty. The AG's analysis says no. The legislative clarification the opinion calls for is the cleaner answer.
Background and statutory framework
Three Arkansas statutes intersect on inmate transport:
A.C.A. § 12-27-113. Subsection (a)–(b) governs the Division of Correction's authority to transfer inmates within the state correctional system (to a Community Correction facility or among Division of Correction facilities). Subsection (d), as amended by Act 1171 of 2015, imposes the transport duty on county sheriffs, but only for "inmates in [the sheriff's] charge who are under commitment to the Division of Correction."
A.C.A. § 12-27-114. Reimbursement scheme for counties when DOC cannot accept inmates from county jails because of bed-space shortages. Subsection (a)(1)(A)(ii) covers "the county's cost of transporting the inmates to the Division of Correction." This applies only to inmates already in county jails, not to those in federal or out-of-state facilities.
A.C.A. § 16-90-402. Requires a sheriff "executing a judgment of confinement" to "deliver" the defendant to the Division of Correction or other facility. The AG read "deliver" as implying possession or control already established; it does not create a duty to go acquire a defendant who is in another jurisdiction's custody.
The federal statute, 18 U.S.C. § 3623, allows a state to request the federal Bureau of Prisons transfer a federal prisoner who has been charged with or convicted of a state felony to an "official detention facility within such State prior to his release from a Federal prison." The state pays the expense. § 3623 does not bind Arkansas; it permits Arkansas to make a request.
The AG's preemption analysis applies the standard three-mode framework: express preemption (none, no preemption clause in § 3623), field preemption (none, federal interest doesn't displace state regulation of inmate transport), conflict preemption (none, no impossibility of compliance with both). Cited cases include Anderson v. BNSF Ry. Co. (Arkansas conflict-preemption framework), Arizona v. United States (federal-interest field preemption), and Rice v. Santa Fe Elevator Corp. (1947 framework on federal interest precluding state laws).
Citations
- A.C.A. § 12-27-113 (DOC transport authority and county-sheriff transport duty)
- A.C.A. § 12-27-114 (county jail bed-space reimbursement)
- A.C.A. § 12-41-503(g) (sheriff acceptance of federal prisoners)
- A.C.A. § 16-90-402(a)(1) (sheriff's duty to deliver inmate executing judgment of confinement)
- A.C.A. § 16-90-403 (sheriff's powers in delivering)
- Act 50 of 1968 (1st Ex. Sess.), § 19 (original DOC transport duty)
- Act 1171 of 2015, § 1 (2015 amendment shifting duty to sheriffs)
- 18 U.S.C. § 3623 (state-requested federal-prisoner transfer)
- U.S. Const. art. VI, cl. 2 (Supremacy Clause)
- Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) (preemption doctrine)
- Maryland v. Louisiana, 451 U.S. 725 (1981) (state law preempted by federal law has no effect)
- Anderson v. BNSF Ry. Co., 375 Ark. 466, 291 S.W.3d 586 (2009) (Arkansas preemption framework)
- GSS, LLC v. CenterPoint Energy Gas Transmission Co., 2014 Ark. 144, 432 S.W.3d 583 (three modes of preemption)
- Arizona v. United States, 567 U.S. 387 (2012) (field preemption)
- Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) (federal interest precluding state laws)
- Black's Law Dictionary 12th ed. (2024) (definitions of "charge," "deliver")
Source
Original opinion text
Opinion No. 2024-084
February 14, 2025
The Honorable Gary Stubblefield
State Senator
2542 Skeets Road
Branch, Arkansas 72928
Dear Senator Stubblefield:
I am writing in response to your request for my opinion about who is responsible for the costs,
transfer, transportation, custody, and confinement of certain people convicted of crimes in multiple
jurisdictions.
You state that there are "instances in which a criminal defendant is sentenced and convicted in
multiple jurisdictions," so that a "[c]riminal defendant[] may have federal criminal convictions
and state criminal convictions in Arkansas or state criminal convictions in Arkansas and criminal
convictions in another state." You have specifically identified people convicted of crimes in Ar-
kansas and another jurisdiction who have "complete[d] the service of their sentence in respect to
[a] federal conviction or conviction in another state and ha[ve] not yet commenced and served
their sentence in respect to their judgment of confinement in Arkansas." Finally, you note that
often the "transportation by the sheriff"—"rather than the Arkansas Division of Correction, Divi-
sion of Community Correction, or detention facility directed to have custody under the sentencing
order"—of these types of criminal defendant typically results in the inmate being held in the "cus-
tody of the county following transport."
Your request contains a total of 21 questions. Because the questions often overlap, and because,
as explained below, the law contains few answers to your questions, I have synthesized your ques-
tions into the following three:
- Under Arkansas law, what official is responsible for transporting inmates from a detention
facility in another state or the federal system to a facility of the Arkansas Division of Cor-
rection or Division of Community Correction?
Brief response: No official is given the duty to transport inmates from other States or fed-
eral facilities to the Arkansas Division of Correction or Division of Com-
munity Correction.
- Under Arkansas law, what official is responsible for taking custody of and confining in-
mates who have completed their sentence in another state or the federal system and who
are now ready to serve their Arkansas sentence?
Brief response: The Division of Correction is required to confine State inmates in its cus-
tody, but before it takes custody, there are limited situations in which the
Division may delay taking custody. The law does not, however, require
the Division to affirmatively acquire inmates. Thus, if the inmate is never
brought to the Division of Correction, it is not clear how the Division is
empowered to take custody
- Does 18 U.S.C. § 3623 preempt any of the law identified in response to Questions 1 and 2?
Brief response: There is no preemption issue.
DISCUSSION
Question 1: Under Arkansas law, what official is responsible transporting inmates from a de-
tention facility in another state or the federal system to a facility of the Arkansas Division of
Correction or Division of Community Correction?
Under current Arkansas law, no official is given the duty to transport inmates from other states or
federal facilities to the Arkansas Division of Correction or Division of Community Correction.
This, however, was not always the case.
In 1968, the General Assembly enacted Act 50 during the First Extraordinary Session. Act 50
placed all inmate-transportation duties in one place: "It shall be the duty of the [Division of Cor-
rection] to transport all inmates committed to the [Division of Correction] to their respective insti-
tutions." There was no distinction between inmates housed in county jails, in facilities in other
states, or in federal facilities; it was the Division of Correction's duty to transport "all inmates"—
no matter where the inmate came from. This language remained unchanged until 2015.
In 2015, the General Assembly removed the Division of Correction's duty to transport all inmates
and changed the law to what exists today. The 2015 amendment was a significant change: "A
county sheriff, a deputy county sheriff, or a trained security contractor shall transport all inmates
committed to the Division of Correction or the Division of Community Correction as described in
this subsection." The subsection goes on to describe the duty to transport being limited to the
"inmates in [a county sheriff's] charge who are under commitment to the Division of Correction."
In other words, if an inmate is not "entrusted to [the sheriff's] care"—e.g., held in a county jail—
then § 12-27-113(d) does not obligate the sheriff, deputy sheriff, or trained security contractor to
transport the inmate.
Thus, the 2015 amendment left a hole in A.C.A. § 12-27-113(d) when it comes to transporting
inmates from a facility in another state or a federal facility to the Arkansas Division of Correction
or Division of Community Correction. I have found no provision of law that requires anyone to
transport these types of inmates. Legislative clarification is likely warranted.
Additionally, you have specifically asked whether A.C.A. § 12-27-114 or § 16-90-402 require
sheriffs to transport inmates under these circumstances. It is my opinion that they do not.
Section 12-27-114 is only about how counties should be reimbursed when the Division of Correc-
tion or the Division of Community Correction "cannot accept inmates from county jails due to
insufficient bed space." Although § 12-27-114(a)(1)(A)(ii) requires the reimbursement to "in-
clude the county's cost of transporting the inmates to the Division of Correction," it only applies
to inmates that are already in the county jails, not those in facilities in other states or federal facil-
ities.
Section 16-90-402 requires a county sheriff who is "executing a judgment of confinement" to "de-
liver the defendant with [certain documents] to the Division of Correction, Division of Community
Correction, or to another detention facility, as indicated in the sentencing order." To "deliver"
means to "surrender (someone or something) to another; hand over." This implies then that the
defendant is already in the sheriff's "possession or control," not that the sheriff must actively go
take possession of a defendant in another jurisdiction's possession. Thus, sheriffs only have a duty
to deliver those inmates who are already in their custody or, as used in § 12-27-113(d), their
"charge." This implication is supported by A.C.A. § 16-90-403, which gives sheriffs executing a
judgment of confinement "the powers of preventing an escape, of resisting an effort to rescue the
defendant, [and] of recapturing the defendant"—all events that would occur after an inmate was
already in the sheriff's charge and no events that would occur before an inmate was in the sheriff's
charge. Therefore, it is my opinion that § 16-90-402 does not place a duty on sheriffs to take cus-
tody of and then transport inmates from a facility in another state or a federal facility to the Ar-
kansas Division of Correction or Division of Community Correction.
Question 2: Under Arkansas law, what official is responsible for taking custody of and confin-
ing inmates who have completed their sentence in another state or the federal system and who
are now ready to serve their Arkansas sentence?
Under Arkansas law, the Director of the Division of Correction has two options for all inmates
committed to the Division of Correction: the inmates "shall [be] transfer[red] … to the Division
of Community Correction … or assign[ed] … to an appropriate facility of the Division of Correc-
tion." There is a limited exception to this: When "the Division of Correction cannot accept in-
mates from county jails due to insufficient bed space," the inmate may be housed in the county jail
and the county shall be reimbursed. In other words, the Division of Correction is required to
confine State inmates in its custody, but before it takes custody, there are limited situations in
which the Division of Correction may delay accepting custody.
But, as explained above, no provision of Arkansas law identifies who is required to transport an
inmate from a facility in another state or a federal facility to the Arkansas Division of Correction
or Division of Community Correction. In fact, the General Assembly explicitly took that duty away
from the Division of Correction. Thus, if the inmate is never brought to the Division of Correction,
it is not clear how the Division is empowered to take custody.
Question 3: Does 18 U.S.C. § 3623 preempt any of the law identified in response to Questions 1
and 2?
Under the Supremacy Clause of the United States Constitution, state courts are "bound" by the
"Constitution … and the Laws of the United States … made in Pursuance thereof," as "the supreme
Law of the Land." Thus, courts cannot give effect to state laws that are superseded by or
preempted by—that conflict with—federal law. Federal statutes can preempt (or supersede) state
laws in three ways: (1) express preemption; (2) field preemption; and (3) conflict preemption.
Express preemption occurs when the text of a federal statute expressly forecloses state legislation
on the topic—that is, "Congress makes its intent to preempt state law explicit in statutory lan-
guage."
Field preemption occurs when a state statute regulates "conduct in a field that Congress" has de-
cided that the federal government will regulate exclusively. Such intent is apparent when the
"framework" of federal regulation indicates that Congress "left no room for the States to supple-
ment it … or where there is a "federal interest … so dominant that the federal system will be
assumed to preclude … state laws on the same subject."
Conflict preemption occurs when "there is an actual conflict between [the text of] state and federal
law."
In my opinion, 18 U.S.C. § 3623 does not preempt the Arkansas laws identified above. Under 18
U.S.C. § 3623, states may request that "[t]he Director of the Bureau of Prisons" transfer federal
prisoners who are charged with or convicted of a State felony "to an official detention facility
within such State prior to his release from a Federal prison." Among other requirements, "[t]he
expenses … shall be borne by the State requesting the transfer."
None of the types of preemption apply here. First, the federal statute does not expressly preempt
state regulation of inmate transportation because it does not say that it "preempts" state laws.
Second, the federal statute does not pervasively regulate the transportation and custody of state
inmates in a way that renders states completely preempted from the field—for example, by limiting
what sources of revenue a state may use. To determine what State entity or person is responsible
for bearing the cost of the transfer from federal prison, one must turn to State statute. But as dis-
cussed above, no Arkansas law gives any official the duty to transport inmates from a federal
facility to the Arkansas Division of Correction or Division of Community Correction. Similarly,
I have found no law that identifies a funding source specifically for transfers under 18 U.S.C.
§ 3623.
Third, the federal statute's language, "[t]he expenses of such transfer shall be borne by the State
requesting the transfer" does not itself contradict or conflict with the language in the statutes iden-
tified above. Here, State law is harmonious with federal law. So it is not then impossible to comply
with both federal and State law.
In sum, Arkansas law does not identify who is responsible for taking custody of and transporting
inmates who have completed their sentence in another state or the federal system and who are now
ready to serve their Arkansas sentence. Thus, legislative clarification is warranted.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General