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Arkansas Supreme Court Rules Felony Enhancements Subject to Parole Eligibility Statute in Place at Time of Crime

by Jacob Barrett

On May 26, 2022, the Supreme Court of Arkansas held the state Department of Corrections (DOC) miscalculated parole-eligibility dates for a pair of state prisoners, causing a delay somewhere between 45 and 66 months.

Marcus Atkins and Calvin Perry were convicted for April 2007 crimes including kidnapping, battery, use of a firearm in commission of a felony, and being a felon in possession of a firearm, as well as commission of a felony in the presence of a child. Both received consecutive fifteen-year enhancements for the firearm use, pursuant to Ark. Code Ann. § 15-90-120 (Supp. 2021).

DOC calculated they were eligible for parole after serving 70% of their gun enhancement sentences, as provided by Ark. Code Ann. § 16-90-120(e)(1). The pair then filed a petition for mandamus, objecting to DOC’s calculation and arguing it incorrectly applied the law. The statute that was used governs parole eligibility for crimes committed after July 2, 2007, they said, months after their crimes were committed.

The circuit court denied their petition. With the assistance of Little Rock attorney Craig Lambert, the prisoners appealed. Meanwhile, the state Supreme Court decided in another case, Rogers v. Ark. Dep’t of Corr., 2022 Ark. 19, that a 15-year firearm enhancement for a crime that occurred in 2006 was subject to the parole eligibility law in effect at the time of the crime.

Taking up Atkins and Perry’s appeal, the Court said they were entitled to the same treatment. “[E]nhancements should be treated like unclassified felonies,” the Court said. In this case, “the governing parole-eligibility law for … enhancement” was Ark. Code Ann. § 16-93-1301 (Supp. 2005).

That statute “provides parole eligibility after serving either one-half or one-third of the sentence, depending on the circumstances” — far less than the 70% provided under the later statute. By improperly giving retroactive application to a law passed after their crimes were committed, DOC impermissibly delayed Atkins’ and Perry’s parole eligibility by 25% to 36.67% of their firearm enhancements.

Thus, the Court reversed the circuit court’s order and remanded the case, with instructions to issue mandamus and have DOC properly calculate the prisoners’ parole eligibility dates. However, two justices took exception to the majority’s opinion. Justice Robin F. Wynne, while concurring that the state’s sovereign immunity does not bar the prisoners’ suit, nevertheless said the majority was wrong to treat it as an affirmative defense that the state had waived by not raising it at trial. The same issue so bothered Justice Shawn A. Womack that he dissented from the majority’s conclusion and said he would have to dismiss their appeal. See: Perry v. Payne, 2022 ARK 112. 

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