An overhaul of Arkansas' parole system is expected by some defense attorneys to lead to more criminal cases going to trial, an outcome that would increase workloads for court-appointed attorneys already managing caseloads above national standards.
The Protect Arkansas Act, an expansive new law enacted during the regular legislative session, will require offenders convicted of serious crimes to serve most if not all of their sentences in prison.
Starting Jan. 1, people found guilty of 18 of the most violent felonies in state code, including rape and capital murder, will have to serve 100% of their sentences. Beginning Jan. 1, 2025, offenders convicted of 53 lesser violent felonies such as second-degree murder, battery in the first degree and sexual indecency with a child will have to serve 85% of their sentences before being eligible for release with supervision.
Gregg Parrish, executive director of the Arkansas Public Defender Commission, said he expects that after the act goes into effect, at least in the short term, more defendants will take their chances in trials rather than plead guilty to charges for which they would have to serve a majority or the entirety of their sentence.
"I'm confident that when the [Protect Arkansas Act] does take effect for at least the first, I would estimate 12 to 18 months, I predict there's going to be a greater number of trials," he said during an interview. "Having done this for 35 years now, I'm interpreting the actions of defendants."
An increase in trials would mean greater workloads for the state's prosecutors and public defenders. Many public defenders are already managing more than the 150 felony cases per year currently recommended by the American Bar Association, Parrish said.
Public defenders are paid by the state and appointed by courts to represent indigent defendants. As defense attorneys, they are responsible for ensuring their clients receive effective counsel as guaranteed by the U.S. Constitution. Legal experts have argued that even the standards recommended by the American Bar Association, which are 50 years old, may not go far enough to protect defendants' rights.
For years, public defenders in Arkansas have faced mounting workloads and struggled to attract attorneys to positions that generally pay less than those offered by prosecutor offices. During the coronavirus pandemic, a moratorium on trials led to a buildup of cases that pushed many public defenders beyond ethical standards.
An increase in trials spurred by the Protect Arkansas Act also could lead to more conviction appeals. If affirmed, conviction appeals could result in more defendants filing ineffective assistance of counsel claims against public defenders, said Parrish.
Brian Miles, a lead public defender based in Jonesboro, said he and his attorneys "simply don't have the resources to handle" the increase in trials his district might see as a result of the Protect Arkansas Act going into effect.
Miles said during an interview he has struggled to attract applicants to three open positions in his office. He was personally overseeing active felony cases for about 210 defendants across three counties.
"We're all stretched so thin already it's going to be very difficult to have the resources and the manpower to handle those jury trials," he said.
Mac Carder, chief public defender for the 6th Judicial District that covers Pulaski and Perry counties, said it is still too early to say how the act will affect his office. But he noted his district is already shorthanded and said if the new law results in more trials, he'll need more attorneys to manage the workload increase.
"After the pandemic, the massive caseload that we've faced has not gone away," he said during an interview. "The attorneys here are spread so thin that the number of people each of us represent is unmanageable. It's a situation that has to be addressed by the state."
Carder was quick to say he oversees attorneys who are passionate about their work but he noted his office has faced a high turnover rate with at least 13 experienced attorneys having left since June. While these attorneys cared about helping indigent defendants, Carder said many found jobs with higher pay and less work.
Because of a lack of experienced attorneys, Carder's office recently began objecting to court appointments to represent defendants facing the death penalty. Carder said his office is overwhelmed with these complicated cases, which may take years to go to trial and require attorneys to receive special certification.
"I'm basically the only certified attorney right now to try death cases in this office, and there is no way I could devote the time needed to defend someone accused of capital murder and facing the death penalty and balance the rest of my caseload," Carder said.
The state, Carder said, must ensure the public is safe from offenders but it also has an equal obligation to ensure those who can't afford a lawyer are provided one by the courts.
"When we defend these people's rights, we're defending everyone's rights under the Constitution," he said. "If there are insufficient public defenders to do that job, we all suffer and the system slows down."
Will Jones, prosecuting attorney for the 6th Judicial District, said his office is preparing for the possibility that the new law could result in more trials. But given the backlog of cases his attorneys are currently managing, Jones said prosecutors might not notice a difference.
Ultimately, Jones said, it will be difficult to determine the impacts of the new law until it goes into effect.
"It's all just speculation right now," he said. "One thing I've learned in over 20 years of doing this is that you don't really know until we're in it."
As the act is phased in, Jones said his attorneys will continue to analyze cases in the same way and "make offers that we believe are fair."
"We're here to serve and get justice for victims as much as we can," he said. "If that requires us to work 60, 80 hours a week then we'll do it, because that's what the job calls for."
State Sen. Ben Gilmore, R-Crossett, who sponsored the Protect Arkansas Act, said he expects courts will initially see an increase in trials as the system adjusts to the new sentencing requirements.
"I think there's no question that when you do massive reform of the system as this bill does, that it's going to take a while for systems to adjust and people to adjust and fully understand," he said. "At the end of the day, if this bill leads to more trials and ultimately more criminals off our streets, I think that is a win for Arkansans."
Resolving more cases through jury trials rather than negotiated plea agreements also could lead to more transparency in courts, Gilmore said. He noted the act is not intended to be "the end all be all" and that additional action may be needed to address crime rates.
When asked if he was concerned about how an increase in trials might affect public defenders, Gilmore pointed to funding increases passed by the Legislature for prosecutors and public defenders.
"We understand that this will certainly put more of a caseload on prosecutors and public defenders," he said. "That's why we increased funding for prosecutors and defenders and increased positions as well."
Lawmakers appropriated roughly $17.8 million for the salaries of 187 public defenders and $20.5 million for the salaries of 280 deputy prosecuting attorneys for fiscal year 2024. The year before, legislators appropriated almost $16.1 million for 190 public defender positions and nearly $19.6 million for 265 deputy prosecuting attorneys, according to figures provided by Scott Hardin, spokesperson for the state Department of Finance and Administration.
In an emailed statement Monday, Hardin noted the figures included salaries for several public defender positions, including among others chief public defenders, senior public defenders and public defender investigators.
Rather than increasing the number of public defender positions, Parrish said he used the additional funding to boost pay for experienced attorneys.
"I had to make a choice between taking 15 more positions that were needed or increasing pay for people who have been with [the Arkansas Public Defender Commission] that are maxed out so I can continue to keep them," he said. "I chose the latter because I cannot replace experience."
While state officials have lifted a hiring freeze for public defenders that went into effect earlier this year, Parrish said public defenders are still struggling to find candidates for vacancies. He said relatively few attorneys passed the bar in recent months, meaning the applicant pool is small.
State Rep. Jimmy Gazaway, R-Paragould, who sponsored the Protect Arkansas Act in the House, said funding increases passed by the General Assembly for prosecutors and public defenders still aren't enough.
"One of the issues that the public defender's office has is recruiting and retaining lawyers. It's a hard job. They have a high caseload. It's high stress because the stakes are so high for their clients," said Gazaway, who is an attorney and has worked as a prosecutor. "If you're not paying people well to do that job, then they're not going to stick around very long."
Instead of increasing the number of criminal cases that go to trial, Gazaway said he thought the Protect Arkansas Act might encourage more defendants to take plea deals to avoid the potentially stricter sentences they might face before a jury.
"For instance, if the prosecutor offers 10 years and they go to trial and they get 20 [years] on a 100% crime, they're going to do 10 solid more years in prison," he said.
Gazaway noted few cases ever make it to trial.
Carder also thought it could be possible for courts to see more defendants taking negotiated agreements as a result of the new law. He raised concerns that this outcome could lead to people pleading guilty to crimes they did not commit.
"The big fear there is that someone who is innocent of the charge is going to decide that, either I'm going to lose my freedom potentially for the rest of my life or cut my losses and take something here that is on the table," he said. "That can compel people to start to think that it may be better to accept the plea offer rather than risk a lot more time."
When asked if he had concerns about innocent people potentially pleading guilty because of the stricter sentencing requirements in the Protect Arkansas Act, Gazaway said in a written statement Tuesday, "We should all be concerned with ensuring justice is done in each case.
"If the facts are clear that a person is not guilty, a prosecutor should not pursue charges," he said.
Under the Protect Arkansas Act, people convicted of less serious felony offenses not specifically addressed in the legislation could be eligible to serve 50% or 25% of their sentence in prison depending on a seriousness grid or table established by the Arkansas Sentencing Commission and approved by the Legislative Council.
Beyond restructuring parole, the 131-page act contains provisions intended to support child victims of crimes, prepare incarcerated people to enter the workforce and suspend court fines for incarcerated defendants for 120 days after they are released from custody. The new law also establishes the Legislative Recidivism Reduction Task Force, a 19-member panel tasked with analyzing the drivers of Arkansas' high recidivism rates among other duties.