Arkansas senator favors tougher Act 309 program rules

State Sen. Jimmy Hickey, R-Texarkana, is shown in this file photo.
State Sen. Jimmy Hickey, R-Texarkana, is shown in this file photo.

The beating death of a Miller County jailer in December has focused new attention on the criteria state prisoners must meet to participate in the longtime Act 309 work-release program that lets them serve some of their sentences in county or local jails.

While state Sen. Jimmy Hickey, R-Texarkana, said he wants to toughen those criteria, his fellow Republican, Gov. Asa Hutchinson, urged a cautious approach in making any such changes.

"I support the 309 program," Hutchinson told the Arkansas Democrat-Gazette. "If there's any proposed changes that overly restrict the use of it, then, yes, I would oppose it."

Hutchinson said too many restrictions would hurt counties that the state reimburses to house the prisoners who then do work for the cities or counties. It also "would be harmful to those who are trying to re-enter society in a safe way. Thirdly, it would be a huge cost to the state."

Work-release prisoner Tramell Mackenzie Hunter, 27, was charged this month with capital murder and first-degree battery of a law enforcement officer in the line of duty after authorities said he fatally attacked jailer Lisa Mauldin, 47, in the Texarkana jail's kitchen area Dec. 18 and severely beat a second officer.

Hickey said he would propose a bill aimed at preventing violent offenders from participating in the Act 309 program. Created in 1983, the program allows some state inmates to stay in city or county jails and do various chores -- from cooking to working in the community on public projects -- while under officers' supervision.

As of Thursday, the state had 245 prisoners assigned to the Act 309 program, said Solomon Graves, a spokesman for the Arkansas Correction Department. The program has a capacity of 336 inmates.

Currently, state law says anyone convicted of capital murder, first-degree murder, any sexual offense, escape or attempted escape, or criminal attempt to commit any of those offenses is ineligible to participate in the program. Also excluded is anyone who is serving a life sentence, awaiting execution or convicted of a crime involving incitement or conspiracy to commit the excluded crimes.

Hunter had not been convicted of any of those offenses. He had shot his mother and an uncle in 2010 and was sentenced to 15 years in prison for aggravated robbery and felony domestic battery.

"I think the public will be surprised to hear what is allowed" under current law, Hickey said.

Hickey said the original plan to deal with the violent-crimes issue was to amend an already filed bill by Sen. Greg Standridge, R-Russellville. That bill would allow Act 309 inmates to also work for nonprofit organizations. But Hickey said he has since decided to file a separate bill.

Had Standridge's bill been amended as Hickey earlier hoped, it would have excluded a wide range of offenses deemed violent under Arkansas Code 5-4-501(d)(2).

Crimes listed in that section of the code include first- and second-degree murder, kidnapping, aggravated robbery, rape, first-degree battery, terroristic act, first- and second-degree sexual assault, residential burglary, first-degree domestic battering, aggravated residential burglary, unlawful discharge of a firearm from a vehicle, criminal use of prohibited weapons in certain cases.

Also listed are felony attempt, solicitation or conspiracy to commit capital murder, first- or second-degree murder, kidnapping, aggravated robbery, rape, first-degree battery, first-degree domestic battering, residential burglary or aggravated residential burglary.

The bill that Hickey now plans to pursue would slightly narrow the number of offenses that would prevent a prisoner from participating in the Act 309 program.

Hickey said his bill would not treat residential burglary or attempted residential burglary as a violent crime but would treat aggravated residential burglary as one. Also not treated as a violent crime would be criminal use of prohibited weapons. On the unlawful discharge of a firearm from a vehicle, Hickey's proposal would consider it a violent crime only when the crime involved death or serious injury.

The bill also would eliminate a requirement that Act 309 prisoners have General Educational Development diplomas but would encourage them to get them, Hickey said.

Hutchinson, a former U.S. attorney and former undersecretary for the U.S. Department of Homeland Security, talked about the issue with the Democrat-Gazette before Hickey decided to include the reduced number of violent offenses.

Current restrictions on Act 309 "are very significant," Hutchinson said. "If you look at the history of the 309 program, it's been very successful in terms of reduced recidivism. ... There's been an 18 percent recidivism rate compared with the 52 percent recidivism rate for other inmates who are released."

Graves said that, based on a review of records dating to the 1990s and conversations with former and current Correction Department staff members, "there is no evidence" of other acts of violence that caused injuries or deaths by Act 309 inmates.

Hutchinson said the Miller County jailer's death was "terribly tragic."

"But I also know from my background in Homeland Security ... that you have to be ... cautious [about] having specific incidents dictate policy," the governor said. "Here, you've got a very successful program; you need to look at the breadth of it."

Referring to some of the offenses the original proposal would have deemed violent, Hutchinson said the measure could have ended up prohibiting those convicted of such offenses as attempted residential burglary.

"With that breadth of definition, it would gut the program," he said.

Miller County Sheriff Jackie Runion said the county jail had eight Act 309 inmates before the attacks but has since reduced that number to four.

"The screening [of inmates] should be really extensive," Runion said. "There's no way to be 100 percent [certain]," but the "scrutiny may need to go beyond what they're doing right now." Anything that the normal person would see as a "violent" crime perhaps should eliminate a prisoner from participating in the Act 309 program, he said.

Runion, who was not sheriff when the attacks occurred, said there also should be "extensive training" for jail officers overseeing the prisoners.

"While [the program] can save taxpayers money, the safety of my staff at the jail, that's paramount," he said. "That goes for the officers and the inmates."

Arkansas is not alone in relying on local jails to help with the incarceration of prisoners.

A study by the U.S. Justice Department's Bureau of Justice Statistics found that at the end of 2015 the United States had a prison population of 1,526,800 under the jurisdiction of state and federal correctional authorities. That was the smallest number since 2005 when there were 1,525,900 prisoners, the study found.

At the end of 2015, almost 81,200 prisoners were held in local jails in 37 states and the federal Bureau of Prisons. That was down by 580 prisoners from the 81,800 prisoners held in jail facilities in 2014.

Requirements under Arkansas' Act 309 program extend beyond the types of crimes inmates commit.

For example, an inmate must be approved by the prison unit's warden or center supervisor to participate in the program.

Among other things, the inmate also must be free of any disciplinary problems for 90 days. The inmate must be within 30 months of his parole or transfer eligibility date, unless he has obtained previous approval from all counties where he has active sentences.

Inmates can be removed from the program for disciplinary or security reasons. Between Aug. 23, 2015, and Dec. 31, 2016, 30 inmates, including Hunter, were removed from the Act 309 program because of rule violations, Graves said.

Ouachita County had the most inmates removed -- five -- during that period.

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