After decades in prison, Arkansas man who robbed taco shop with toy gun nearer to release

Case rallies calls for reform

File photo
File photo

An Arkansas man who has spent decades in prison for robbing a taco shop with a toy water gun is expected to be released this year after his case gained national attention, but supporters are using this case as an example of why officials across the country need to look at how pardons and commutations are used.

Nobody was injured when Rolf Kaestel robbed the Arkansas restaurant in 1981, but because of his previous convictions, he was sentenced to life in prison for aggravated robbery.

Kaestel, now 70, has spent several decades in a prison in Utah after being transported there as part of an interstate compact agreement despite multiple advocates and supporters, including victim Dennis Schluterman, requesting his release.

Kelly Duda, an American filmmaker and activist from Arkansas, said he has been fighting to get Kaestel released since he interviewed him more than 20 years ago.

"I think 10 years was too long, but 40 years? Rapists and murderers get less time." Duda said in an interview this summer. "Arkansas told him he had the other death sentence: You aren't getting out of prison."

Kaestel's fifth request for clemency gained the attention of criminal justice reform advocates and stories about him appeared in various publications.

Jason Flom, an American music industry executive and an advocate for the wrongfully convicted, said what he called the preposterous nature of the sentence relative to the crime is what drew him to the Kaestel case.

"I hate injustice and I hate bullying and this, to me, was a gross example of both by the system," he said.

LAWMAKERS' SUPPORT

Arkansas state Rep. Vivian Flowers said she reached out to Reps. Jamie Scott of North Little Rock and Fredrick Love of Mabelvale, and the Democratic lawmakers drafted a letter of support that was sent to Gov. Asa Hutchinson in June.

"Mr. Kaestel was deemed by the Arkansas Department of Corrections to be fully rehabilitated over twenty years ago, and now at the age of 70, he has received three consecutive clemency recommendations from the Arkansas Parole Board," the letter stated. "Upon learning of the details surrounding Mr. Rolf Kaestel's story, we as state legislators, feel compelled to reach out and urge you to grant clemency to this gentleman who we believe has paid his dues tenfold for this crime."

Hutchinson announced in July his intent to commute Kaestel's sentence, making him eligible for parole immediately.

Recommendations for pardons and commutations are subject to a 30-day period for public comment before they become final.

Cindy Murphy, spokeswoman for the Arkansas Department of Corrections, said the only information she was authorized to release on Kaestel is what can be drawn from the agency's public website.

The website states Kaestel is still in prison and an exact release date is unavailable.

Duda said even though he was happy about the result, it was important to remember that the Kaestel case isn't the only injustice occurring in the prison system.

"You shouldn't need important people to get this outcome," he said.

OLD IN PRISON

Amy Fettig, executive director for the Sentencing Project, said in a recent interview that there are more than 200,000 life sentences being served across the nation, which is more than the nation's entire prison population in the 1970s.

"The fastest-growing population in our prison system is 55 years and older," she said. "We have grandpa and grandma behind bars in this country now."

Murphy said that as of Tuesday, 1,251 inmates over the age of 60 are in Arkansas prisons. The total population is about 16,000 inmates.

Nicole Porter, a director of advocacy for the Sentencing Project, said the attempt to have a one-size-fits-all criminal code decades ago caused a lot of the current problems in the prison system.

"Lawmakers were misguided," she said. "They had a misunderstanding on what would deter crime, thinking that incapacitating people was a solution to stop re-offending."

Fettig said the mass incarceration complex began in the 1980s.

"Twenty to 30 years ago we started handing out life sentences like candy," she said. "We started using the criminal justice system to solve social problems. Instead of investing in jobs and schools and social supports, we decided to invest in prisons and jails."

Fettig said the politicization of the justice system also led to extreme prison sentences.

"Politicians at the time would garner votes by race baiting and scaring the public using crime to get elected," she said. "Being tough on crime was politically popular. If someone built a prison then the next person would build two without needing to show if these facilities had any good impact on crime."

Porter said today's knowledge of addiction and the effect it has on the potential on re-offending wasn't applied several decades ago and that was what led to confusing sentences such as Kaestel's.

"Now we know that with substance abuse you can't expect someone to make a rational decision even with the threat of life in prison lingering overhead," she said. "Short term incarceration could be warranted, but it wasn't short term incarcerations that were happening."

PRISON REFORM VIEWS

There has been a shift in recent years in how prison is being viewed, and criminal justice advocates are asking government officials to revisit past decisions.

"I am encouraged to see that there are people crossing the aisle when it comes to prison reform," Duda said. "I think we are seeing the beginnings of a new attitude."

Flowers said she credits the media for how prison was viewed.

"I don't think the three strikes rule and longer sentencing was the general public sentiment," Flowers said. "I think people saw the stories in the media and the press and they watched movies about crimes and senseless murders and decided these were evil people who show no remorse and they must be put far away from their families."

Flowers said people have realized the importance of a second chance.

"I think people don't want blood, they just want fairness and justice on both sides of the equation," she said.

Fettig said the growing public support has allowed organizations such as the Sentencing Project to make progress in these situations.

"Lock-them-up-and-throw-away-the-key is being rejected now," she said.

Porter said clemency and commutations could be used to reduce state and federal inmate populations and address mass incarceration, but the people in charge of this power haven't used it in this manner.

"Governors and other criminal legal practitioners are very risk-averse due to thinking any future crime an individual commits after clemency will impact their future political ambitions or reflect poorly on their future," she said.

COMMUTATION POWER

Duda said it's unfair to have the governor be the sole person who can commute a sentence.

"I can't imagine what it's like to have this kind of awesome authority to pardon and commute sentences, but, as they say, with great power comes great responsibility," he said.

Duda said second-chance legislation or a committee would alleviate the pressure on governors.

"It would take the political aspect out of it," he said.

Porter said if a committee was created to handle commutations, it would address some problems but also might create another.

"If a committee was set, it would spread out responsibilities and spread out the political risk to more people instead of one office," she said. "But also it could slow down the process."

Hutchinson told the Arkansas Democrat-Gazette in an email statement on Thursday that the power of commutation and pardons is something a governor should be able to handle.

"The power to grant a commutation or pardon is constitutionally reserved for the Governor," he said. "It is important to have a process of review of applications that include public comment and victim notification. By law, the review and first recommendation comes from the Pardon and Parole Board. When I receive their recommendation then my legal team reviews it and then it comes to me for decision. The decision is a weighty one but it is an important responsibility and power of the governor that should not be limited."

Fettig said her group believes that after 10 years, there should be a mandatory review when it comes to prison sentences.

"Too long our prisons and jails have only warehoused people," she said. "They haven't been held accountable for the actual rehabilitation of prisoners."

Flowers said she would rather see the justice system get it right at the start, instead of waiting until someone has served years in prison.

"If we focus on extending a justice system that is fair on the front end, then we don't have to worry about this as much," she said.

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