LITTLE ROCK, Ark. – Nearly 300 Arkansas inmates who thought they had an early shot at freedom, no longer do.
The system wants to keep them behind bars because of a mistake it made.
That error has them and their loved ones angry and upset and lawmakers demanding answers as to how this could have happened.
It has been more than three years since Kimberly Charles last saw her son, and her grandchildren have seen their father.
“[He has missed] all their birthdays, all of their holidays, Christmases,” Charles said.
For Sharon McLaughlin, seven years have passed since she hugged her fiancé.
“He has me waiting on him, family waiting on him, to be reunited with his own son,” McLaughlin said.
Their loved ones have been in and out of prison for breaking into homes. Both inmates were looking forward to being released soon.
“He would have been getting out this year, the end of this year,” Charles said.
Those long-awaited reunions, though, came to an abrupt halt.
“It was like we were blindsided,” Charles said.
Instead of freedom, both Charles’ son and McLaughlin’s fiancé will spend nearly a decade longer behind bars despite plea deals.
The reason? A seven-year mistake by the Arkansas Department of Corrections (DOC) which admits it wrongly interpretated parole eligibility law, giving false hope to nearly 300 inmates.
“To add ten more years because you made a mistake? That’s not fair at all,” Charles said.
Under Arkansas law, anyone convicted of two violent felonies is not eligible for parole.
Violent felonies are mainly crimes like murder or kidnapping, but in 2015, the state legislature re-classified residential burglary, making it a violent felony as well.
For the next seven years, the DOC’s policy was that any residential burglary committed before the law changed would not be considered a violent felony when calculating sentences.
DOC employees even went as far as reassuring lawyers and public defenders that their client would not have to serve all their time.
The DOC was wrong.
“We should not have done that. I’m not mincing words. I’m not making excuses. We should not have done that,” said then-Secretary of the Arkansas Department of Corrections, Solomon Graves, in a Joint Performance Review Committee in October 2022.
In a Joint Performance Review Committee in October 2022, the DOC admitted it made a mistake, changing its position, now saying parole could be denied because of a residential burglary charge prior to April 1, 2015, when the law changed.
“We were incorrectly applying the law and as a result of that incorrect application, we provided guidance inconsistent with the law,” Graves said.
Representative Jimmy Gazaway, R-Paragould questioned the department’s decision to provide guidance that was inconsistent with the law then change its position.
“If the government makes specific representations to someone that this is going to be the deal and then goes back on their word, I do have a problem with that,” Gazaway said. “And that appears to be exactly what the Department of Corrections did.”
The DOC notified 290 inmates that, instead of a chance at parole, they would now be serving their entire sentence. On average, Graves said that’s another 9 ½ years behind bars.
“If all of a sudden the Arkansas legislature decided that they were going to say that speeding tickets are no longer misdemeanors and instead are violent felonies, what that effect would be if they applied it retroactively, is a bunch of us would go to jail,” Attorney David Slade said.
Slade is one of the attorneys on a class action lawsuit filed against the Arkansas Department of Corrections.
His client, Kristina Davis, has a prior conviction of residential burglary from 2012. Slade said Davis relied on guidance her public defender got straight from the DOC, which clearly stated she would not serve her full time. Davis, who was eligible for parole in 2027, now won’t be getting out until 2039.
“She was relying not just on the advice of her attorneys, but also on the crystal-clear representations of the Arkansas Department of Corrections when she decided to plea to the second residential burglary,” Slade said. “And after that, the rug got completely pulled out from under her.”
In the review committee, Graves said that the department realized it might have an issue as early as 2016.
It wasn’t until early 2022 that it sought an opinion from the attorney general. Later that year, then Attorney General Leslie Rutledge issued her opinion, saying that residential burglary convictions that occurred before April 1, 2015, should be considered violent offenses.
“When we know we have made a mistake, the court has been very clear we have a duty to remedy that mistake and that is what we have done here,” Graves said.
In addition to the 290 inmates affected, two people who were released days before the attorney general’s opinion, were taken back to prison.
More than 100 others already out on parole, were told they would remain out, unless they reoffend.
“There were 101 people who should have been serving 100 percent of their time. Repeat violent offenders who were let out of prison because the Dept. of Corrections wasn’t following the law,” Rep. Gazaway said.
Graves: “Yes sir,”
Gazaway: “That’s a problem.”
Graves: “It is.”
It’s a problem the Department of Corrections said is now fixed.
“We have a duty to get it right. We got it wrong in this case and we are going to learn from this,” Graves said.
However, for Charles and McLaughlin that simply isn’t good enough.
“You’re saying ‘I’m sorry’ as if you are not affecting anyone’s life; we’re not talking about two days or an extra month. We’re talking about ten extra years,” Charles said.
KARK reached out to the Arkansas Department of Corrections for an interview.
The department declined, instead sending a statement confirming its decision to reach out to the attorney general for her opinion.
The department said as of October 2022, of the 101 parolees under supervision, 11 have since been returned to ADC custody because they violated terms of their parole.
When asked his opinion, Attorney General Tim Griffin said in a statement “I wholeheartedly endorse the reasoning in AG Opinion 2022-010. Convicted felons who have not completed their sentence must finish serving that sentence, even if they received incorrect information.”
Representative Gazaway said the legislature intends to make a clear distinction between aggravated residential burglary (violent) and residential burglary (nonviolent) will be removing residential burglary from the list of violent felonies. He said while this will fix the issue going forward, it will not resolve the issue for those affected by the previous misinterpretation by DOC. That would require a separate bill.