If an Arkansas inmate serving a life sentence for a juvenile crime gets paroled under Act 539, how long does parole supervision last?

Plain-English summary

Act 539 of 2017 was Arkansas's response to a line of U.S. Supreme Court decisions (Miller, Graham, Montgomery) that barred mandatory life-without-parole sentences for crimes committed by minors. The Act created parole eligibility for juvenile lifers after 20, 25, or 30 years depending on the offense. But the Act did not say what should happen to such an offender if and when the Parole Board actually grants release.

Director Sheila Sharp of the Arkansas Department of Community Correction asked the AG: once an Act 539 offender is on parole, how long does supervision last? The AG concluded that supervision must continue for the remainder of the offender's life. Three points drove the answer:

1. Parole in Arkansas is a release from incarceration, not a reduction of the underlying sentence. A life sentence remains a life sentence even after parole.
2. The Arkansas Code contains no mechanism (short of executive clemency) for early termination of parole supervision before the sentence expires.
3. Act 539's plain text neither grants the Parole Board such authority nor mentions a shorter supervision term.

The AG noted that the Parole Board and DCC retain discretion over the intensity and conditions of supervision, including evidence-based, individualized assessments that account for an offender's growth and maturity since the juvenile offense. But duration is fixed: lifetime.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Three U.S. Supreme Court decisions reshaped juvenile sentencing:

• Graham v. Florida, 560 U.S. 48 (2010): the Eighth Amendment bars life without parole for non-homicide crimes committed by minors.
• Miller v. Alabama, 567 U.S. 460 (2012): the Eighth Amendment bars mandatory life without parole for any crime committed by a minor.
• Montgomery v. Louisiana, 136 S.Ct. 718 (2016): Miller applies retroactively, requiring states to give juvenile lifers a meaningful opportunity for parole consideration.

Act 539 (Senate Bill 294 of the 91st General Assembly, effective March 21, 2017) brought Arkansas into compliance. It barred new sentences of death or life-without-parole for crimes committed by anyone under 18, and it created parole eligibility for existing juvenile lifers:

• 30 years for capital murder;
• 25 years for first-degree murder;
• 20 years for non-homicide offenses.

It also added a list of factors the Parole Board must consider at parole-eligibility hearings for juvenile offenders: maturation during incarceration, the offender's role in the crime, adult involvement, participation in rehabilitative programs, and mental-health evaluations. Section 8 of the Act amended Ark. Code Ann. § 16-80-104 to require that mental-health records follow the offender from the Department of Correction to the Department of Community Correction "if the minor is eventually supervised on parole." That single phrase was the only place Act 539 acknowledged parole supervision at all, and it gave no duration.

The AG's reasoning

Parole is not a sentence modification. Citing Cridge v. Hobbs, 2014 Ark. 153, the AG emphasized that a grant of parole "do[es] not constitute a modification of a prison sentence." A juvenile lifer paroled under Act 539 still has a life sentence; he or she has merely been released from physical incarceration into community supervision. Under Ark. Code Ann. § 16-93-701(b)(3), an inmate on parole "shall remain in the legal custody of the agency from which he or she was released."

Arkansas has no early-termination mechanism for parole. The federal system allows the United States Parole Commission to terminate supervision before a sentence expires (28 C.F.R. § 2.43(a)(1)), and federal courts can end supervised release early under 18 U.S.C. § 3583(e). Arkansas has nothing comparable. The closest analog is the sex-offender registry petition under Ark. Code Ann. § 12-12-919, which is a different proceeding entirely. The AG concluded that without statutory authority to cut supervision short, "the offender's parole (and the supervision inherent to it) should stay in place for the remainder of the offender's sentence."

The Eighth Amendment does not require shorter supervision. Citing State v. Mossman, 294 Kan. 901 (2012), the AG noted that at least one state supreme court has upheld lifetime postrelease supervision against an Eighth Amendment challenge. Montgomery itself stated that the Eighth Amendment "does not require States to relitigate sentences, let alone convictions": it requires only that juvenile lifers "be considered for parole."

Discretion remains over intensity, not duration. Under Ark. Code Ann. § 16-93-712(a)(2)(A), parole supervision is "based on evidence-based practices including a validated risk-needs assessment." For Act 539 offenders specifically, the supervising agency must account for juvenile-specific factors. The AG framed this as the Parole Board and DCC having authority to tailor the degree of supervision, "if not its duration."

The AG declined to answer the second question (what shorter supervision period might apply if lifetime supervision is not required) as moot.

Common questions

Was Act 539 retroactive?
Yes. Section 13 of the Act (codifying Ark. Code Ann. § 16-93-621(a)(2)(A)) provided that parole eligibility "applies retroactively to a minor whose [capital- or first-degree murder] offense was committed before he or she was eighteen (18) years of age, including minors serving sentences of life, regardless of the original sentences that were imposed."

Could a juvenile lifer have his sentence commuted to a term of years?
The opinion identified executive clemency as the only path to a sentence reduction. Citing Coones v. State, 280 Ark. 321 (1983), the AG noted that the "executive branch of our government" alone holds the clemency power. The Parole Board cannot effectively shorten a life sentence by ending supervision.

What if a parolee on Act 539 violates parole?
The opinion cited Jones v. Arkansas Dep't of Human Services, 70 Ark. App. 397 (2000): "an individual whose parole is revoked is effectively sentenced to the remainder of his sentence" in penal custody. For a life sentence, that is the rest of the offender's life behind bars.

Did the Parole Board have to weigh anything different at an Act 539 hearing?
Yes. Section 13 of Act 539 required the Board to "ensure that a hearing to consider the parole eligibility of a person who was a minor at the time of the offense ... takes into account how a minor offender is different from an adult offender and provides a person who was a minor at the time of the offense ... with a meaningful opportunity to be released on parole based on demonstrated maturity and rehabilitation."

How was juvenile life-without-parole handled before Act 539?
The AG noted the Arkansas legislature "has not provided for a sentence of life with the possibility of parole in over forty years." A 1968 act briefly authorized parole eligibility for life sentences, but a subsequent enactment "specifically disallowed parole eligibility for persons sentenced to life imprisonment" (Woods v. Lockhart, 292 Ark. 37 (1987)).

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-051
August 18, 2017

Sheila Sharp, Director
Arkansas Community Correction
Two Union National Plaza Building
105 West Capitol, 3rd Floor
Little Rock, AR 72201

Dear Director Sharp:

This is in response to your request for an opinion regarding Act 539 of 2017, which authorizes, among other things, the parole of individuals serving life sentences who were convicted of crimes committed as minors. You ask whether Act 539 requires lifetime supervision of individuals with life sentences paroled under the Act. If lifetime supervision is not required, you ask what period of parole supervision Act 539 contemplates for these individuals.

RESPONSE

The Arkansas Supreme Court has not addressed the issue, given that Act 539 took effect recently, but I believe offenders with life sentences paroled under the Act would be subject to lifetime supervision. The Arkansas legislature "has not provided for a sentence of life with the possibility of parole in over forty years," and Act 539 is silent as to how long offenders must be supervised. But like criminal sentencing itself, parole and parole supervision are governed by statute. And the Arkansas Code does not provide for early termination of parole supervision relative to the length of an offender's sentence. Neither does the code authorize the Parole Board or the Department of Community Correction ("DCC") to effectively shorten a sentence by cutting off supervision while the offender is on parole.

Therefore, assuming the sentence is not commuted through executive action, parole supervision would continue for the remainder of an Act 539 offender's life. Lifetime supervision is consistent with the Act's plain language, and consistent with the Eighth Amendment decisions that prompted its passage. Nevertheless, the duty to conduct evidence-based, individualized assessments at parole hearings might especially apply to Act 539 offenders, who are convicted of crimes committed as juveniles. The degree of lifetime supervision, if not its duration, would in this sense remain the prerogative of the Parole Board and DCC.

DISCUSSION

Question 1: Does Act 539 of 2017 require lifetime supervision of those serving life sentences who are paroled under the Act?

I believe lifetime supervision would be required for paroled individuals meeting this description. Act 539 has the potential to alter the finality of life sentences for certain offenders, at least in terms of the inevitability that these offenders will serve their sentences while incarcerated. But because a grant of parole "do[es] not constitute a modification of a prison sentence," an offender sentenced to life who is then paroled under Act 539 would, even so, be in state custody and subject to the state's supervision. For these reasons (and in light of the Act's plain language), parole granted under Act 539 to an offender serving a life sentence would necessitate supervision for the remainder of the individual's lifetime.

Essentially, your question about the length of supervision contemplated by Act 539 is one of statutory interpretation. And the "cardinal rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language." With this precept in mind, it will be helpful to identify portions of the Act relevant to offenders sentenced to life imprisonment for crimes committed as juveniles. The Act generally bans sentences of life without parole for such offenders:

A defendant shall not be sentenced to death or life imprisonment without the possibility of parole for an offense if the defendant was less than eighteen (18) years of age at the time the offense was committed.

Section 3 of the Act specifically amends the sentences for capital murder and treason, which appear at Ark. Code Ann. § 5-4-104(b), as follows:

A defendant ... [who] was younger than eighteen (18) years of age at the time he or she committed the capital murder or treason ... shall be sentenced to life imprisonment with the possibility of parole after serving a minimum of thirty (30) years' imprisonment.

Section 7 of the Act, applicable to convictions for first-degree murder, states that:

[I]f a person was younger than eighteen (18) years of age at the time he or she committed murder in the first degree and is sentenced to life imprisonment, the person is eligible for parole after serving a minimum of twenty-five (25) years' imprisonment.

Thus, offenders who committed capital- or first-degree murder when they were younger than 18 years of age are eligible for parole no later than after twenty-five (25) years of incarceration if convicted of murder in the first degree, or no later than after thirty (30) years of incarceration if convicted of capital murder. And a juvenile offender convicted of a crime "in which the death of another person did not occur is eligible for release on parole no later than after twenty (20) years of incarceration."

These provisions demonstrate that Act 539 is intended to create parole-eligibility for offenders convicted of certain crimes committed when they were under the age of eighteen (for which they initially received sentences of life without parole). How long such offenders are to be supervised in the free world once paroled is irrelevant, in some sense, to the objective of ensuring the possibility that the offenders may be "lawfully set at liberty from ... imprisonment." For this reason, it is perhaps unsurprising that Act 539 does not mention how long an offender should be supervised on parole. But Act 539 must be read "in ... context and with a view to [its] place in the overall statutory scheme." And the concepts of parole and parole supervision are well established under Arkansas law.

First, parole "do[es] not constitute a modification of a prison sentence." Act 539, likewise, does not purport to alter the duration of juvenile offenders' underlying sentences. Second, "parole is not a full release of an offender," but is instead an "administrative condition permitting state supervision of eligible offenders ... released ... to community correction programs or supervision." Parole "by its very nature implies some sort of supervision," such that an offender on parole subject to no supervision would, practically speaking, not be serving a sentence at all.

Third, short of an act of executive clemency that would reduce or extinguish an offender's sentence, the Arkansas parole system lacks a mechanism for early termination of supervisory conditions. The closest analog to early termination of supervision is likely the statutory scheme allowing certain sex offenders to petition for removal from the state's Sex Offender Registry, where otherwise their names would appear for life. But there is not a comparable statute authorizing offenders within the ambit of Act 539 to petition for early termination of parole. In the absence of such authority, the offender's parole (and the supervision inherent to it) should stay in place for the remainder of the offender's sentence. And it is worth noting that at least one jurisdiction has upheld the "imposition of lifetime postrelease supervision," reasoning that it was not "categorically unconstitutional" or "grossly disproportionate to the sentences imposed for other crimes in Kansas or similar crimes in other states."

In my opinion, Act 539 incorporates Arkansas's definition of parole as a release from incarceration, not a modification of the offender's sentence. It necessarily follows that an offender paroled under Act 539 who is serving a life sentence must be supervised for life. There is simply no statutory authority for an Act 539 offender to gain, by virtue of parole, a sentence reduced from life to a term of years. Thus, although the issue has not been litigated in decades, I believe the Arkansas Supreme Court would hold that parole supervision of an offender serving a life sentence should continue for the remainder of the offender's life.

Notwithstanding the fact that lifetime supervision is appropriate for an Act 539 offender serving a life sentence, the degree of supervision is discretionary with the Parole Board and DCC. That is, an offender paroled under Act 539 would be subject to supervision "based on evidence-based practices including a validated risk-needs assessment," as are other parolees. And the risk-needs assessment for an Act 539 offender would be "target[ed to] the criminal risk factors identified in the assessment" and "responsive to individual characteristics" of the offender. But Act 539 also calls for the Board to consider factors specific to juveniles at the offender's parole-eligibility hearing. These factors include growth and increased maturity of the offender during incarceration; the extent of the offender's role in the crime and whether and to what extent an adult was involved; the offender's participation in available rehabilitative and educational programs while in prison; the offender's use of self-study for self-improvement; and the results of comprehensive mental health evaluations. Based on consideration of these and other factors, the Parole Board and DCC could tailor the supervision of Act 539 offenders in a manner commensurate with a specific offender's need for "assist[ance] ... in reintegrating into society." But I believe parole supervision would of necessity last the remainder of the offender's lifetime, for the reasons discussed above.

Question 2: If Act 539 does not require lifetime supervision of paroled individuals who are serving life sentences, what period of supervision is contemplated?

Because Act 539 does contemplate lifetime supervision of those serving life sentences who are paroled under the Act, your second question is moot.

Sincerely,

LESLIE RUTLEDGE
Attorney General