The information on this page provides a brief overview of capital clemency in Arkansas and is not intended to serve as the basis for a capital clemency petition or campaign. For additional information, please see the full Arkansas Clemency Memo (February 2017) prepared by the ABA Capital Clemency Resource Initiative:
The Arkansas Constitution gives the governor the power to grant reprieves, commutations, and pardons in all criminal cases, except in cases of impeachment and treason. In treason cases, the governor needs the “advice and consent” of the State Senate to exercise clemency authority. Stays of execution may be issued by “the Governor, Director of the Department of Correction…and the Clerk of the Supreme Court.”
Both the governor and the Arkansas Parole Board (“Board”) are involved in the clemency decision-making process. Before a clemency request can go to the governor, it must go to the Board for investigation and recommendation. Recommendations from the Board regarding commutations or pardons are not binding. In capital cases, a quorum of Board members is required to preside over the clemency hearing. If the governor grants a reprieve, commutation, or pardon, details regarding the name of the petitioner, his or her crimes, and the reasons for clemency must be given to the State Senate and the State House of Representatives.
The Board is made up of seven members appointed by the governor and confirmed by the senate. A quorum requires four members to be present, but five-member votes are needed for the Board to take action. Board members serve staggered seven-year terms, with one Board member’s term expiring each year. Appointment requirements include that service on the Board is a member’s sole employment, and the member must have at least a bachelor’s degree and five years’ experience in a prescribed list of fields including law, law enforcement, psychology, psychiatry, social work, and other related areas. However, these qualifications are flexible, as what constitutes “other related fields” is subject to interpretation, and the attainment of an extra two years’ experience in an appropriate field can be substituted for the education requirement. Board members must undergo training both annually and upon appointment “in compliance with guidelines from the National Institute of Corrections, the Association of Paroling Authorities International, Inc., or the American Probation and Parole Association,” and the training must emphasize “(i) Data-driven decision making; (ii)(a) Evidence-based practice; iii) Stakeholder collaboration; and (iv) Recidivism reduction.”
How Petitions are Brought
Prisoners seeking a commutation or a pardon must complete the appropriate application as provided by the Board. A pardon application requires the petitioner to include: the judgment and commitment order, felony information and/or a probable cause affidavit from a clerk, the incident report from the arresting agency, and a copy of the judgment and commitment order. In addition, the application notes that other materials (if available) should be submitted, including letters of recommendation from friends and family and a “letter of personal plea.”
The Board’s publicly available commutation application requires that petitioners declare why they are seeking a commutation, providing four choices: “(1) to correct an injustice which may have occurred during the person’s trial; (2) life threatening medical condition; (3) to reduce an excessive sentence; or (4) the person’s institutional adjustment has been exemplary, and the ends of justice have been achieved.” The commutation application is submitted to the petitioner’s unit Institutional Release Officer (“IRO”), who then forwards it to the Board.
Typically, petitioners are represented through one of the federal defender offices in Arkansas throughout the state clemency process, and these lawyers assist the petitioner in preparing and submitting the clemency application form along with a detailed clemency memorandum. These lawyers also typically advocate on behalf of the petitioner at any clemency hearing that is scheduled.
Once a clemency application is filed, it will be reviewed by at least four Board members, who will either vote to recommend a grant, a denial, or a hearing before the full board in the case of a non-capital clemency application. Although it normally takes five votes in favor to schedule a hearing, hearings before a quorum are mandatory in capital cases.
The receipt of an application and the scheduling of a hearing both require notice to be given to certain individuals. In a capital case, the Executive Clemency Coordinator must give the sentencing court, the prosecuting attorney, and the sheriff of the county of conviction the opportunity to make a recommendation concerning the clemency request. Additionally, two announcements must be placed in a “newspaper of general circulation” in the county of the offense, and the victim(s) or victim(s)’ next of kin must also be given the chance to comment.
In rendering its decision, the Board may take information into account in addition the clemency application and required letter(s) of recommendation. According to published Board policy and by statute, the Board may seek out any other information it deems necessary to complete its investigation, and has the authority to issue subpoenas for witnesses to appear, testify, and submit documents.
At a hearing, while anyone may submit a written statement on the petitioner’s behalf, only four persons—the petitioner, his or her attorney, and two others—may speak at the hearing. In addition, their testimony must be confined to two hours in total. The petitioner’s presence is not required if he or she is incarcerated in another state.
In practice, hearings on capital clemency petitions have taken place in two parts: first, there is a morning meeting at the prison unit where the prisoner is incarcerated and at which the petitioner is allowed to make his or her case. Then, in the afternoon, the Board members return to Little Rock where they will hear from any victims, prosecutors, or others who wish to be heard concerning the clemency application.
Responding to a Petition
Following a clemency hearing, the Board will vote to recommend to the governor whether the application is with or without merit. Though the Board “may specify the nature and terms of the commutation being recommended,” such explanation does not appear to be mandatory. If the Board recommends to the governor that an application has merit, it must issue both a public notice concerning this recommendation as well as individually notify all individuals and offices that received notice of the hearings. Additionally, although not statutorily required, the Board’s website lists all applications for commutation—both with and without merit.
The governor is not required to meet with the petitioner or other interested parties prior to acting on a Board recommendation, but individuals either in favor or against clemency may seek to make an appointment with the Governor’s Counsel for Clemency and Corrections to discuss a petition for a pardon. In addition, before the governor grants an application for pardon or commutation, he or she must notify the Secretary of State and direct the Department of Corrections to notify the same group required to receive notice of the clemency hearings that a decision to issue a clemency grant has been made. Filing this notice does not prevent the governor from later denying the application, however.
Current Clemency Decision Maker(s)
Republican Governor Asa Hutchinson began his term in January 2015. A lawyer by training, Governor Hutchinson was a U.S. Attorney under President Ronald Reagan, served as Director of the Drug Enforcement Administration from 2001 to 2003, and from 2003 to 2005 was the first Undersecretary of the Department of Homeland Security under President George W. Bush. He is also a former three-term U.S. Representative, and is currently the chairman of the Southern Regional Education Board and vice chairman of the National Governors Association’s Homeland Security and Public Safety Committee.
Governor Hutchinson supports the death penalty, although he believes it should only be imposed in “certain prescribed cases that are very specific with aggravated circumstances.” He cited the Boston Marathon bomber case as one example where the death penalty would be appropriate. Following stays of execution issued by the Arkansas Supreme Court in October 2015, he released the following statement:
I am disappointed for the families of the victims since the Court ruling will mean more delays and more uncertainty. … While the case is sent back to have a full hearing, it is my hope that the Court will expedite the case so that 20 year delays do not become 21 year delays.
Chairman John Felts was first appointed to the Board in 1998 by Governor Huckabee and was reappointed by Governor Hutchinson in 2019. His term expires in 2026.
Andy Shock, a former county sheriff, was appointed by Governor Hutchinson to finish a term expiring in 2025.
Lona McCastlain,was appointed by Governor Hutchinson in 2017 to finish her term expiring in 2024.
Jerry Riley was appointed by Governor Hutchinson in 2016, with his term expiring in 2023. He previously served on the Arkansas Workforce Development Board.
John Belken’s term will expire in 2022. Belken was a Correctional Officer for the Texas Department of Corrections. He subsequently attended Seminary, which led him to Arkansas in roles as a prison Chaplain Assistant, head Chaplain, and then Assistant Warden.
Abraham Carpenter was appointed to consecutive terms, set to expire in 2021, by Governor Beebe. Carpenter manages a farming operation, and owns and operates Carpenter Produce. He participates in USDA practices and services, and he credits this participation as well as his family values for his farming success.
Dawne Vandiver, whose term expires in 2020, was appointed by Governor Beebe. Previously, she was executive director of the Democratic Party of Arkansas and a County Justice of the Peace.
Significant Past Capital Clemency Decisions
“The Arkansas Eight”
In 2017, Arkansas made international headlines when it announced a plan to carry out an unprecedented eight executions in the span of only eleven days. As the state readily conceded, the reason for the rush was that the prison’s supply of midazolam – one of the drugs Arkansas uses in its three-drug lethal injection protocol – was set to expire that spring. In addition to causing outcry over the sheer number of executions scheduled in such a short period of time, Arkansas’ haste to put these men to death also meant that the state would run afoul of the process for executive clemency described above. Several clemency hearings were shortened and/or held back to back as other aspects of the clemency review process were truncated, as well.
The Federal Defenders for the Western District of Arkansas brought a federal lawsuit challenging these derivations, and a district court held a three-day trial to determine whether a constitutional violation had occurred. Ultimately, the court held that a stay of execution would be granted to one of the men – Jason McGehee – who was the only one of the “Arkansas Eight” to receive a majority recommendation for commutation from the parole board. (Board Chairman John Felts was the sole vote against the commutation). According to the district court judge, although the state deviated from its published clemency procedures with regards to each of the plaintiffs, only McGehee was “prejudiced” because he was the only plaintiff to receive a favorable clemency recommendation. Under Arkansas statute, once a recommendation for clemency has been made by the Board, the governor has to wait for 30 days to receive comment on the action before deciding whether to accept or decline the Board’s recommendation. Due to the state’s proposed execution timetable, however, Mr. McGehee would be executed before the governor could issue a clemency decision. In August 2017, Governor Hutchinson announced his intention to grant Mr. McGehee a commutation to life in prison without the possibility of parole. (For more information about the clemency lawsuit in Arkansas, including the legal pleadings and decisions, please click the resources link below).
Historical Clemency in Arkansas
Arkansas Governor Winthrop Rockefeller declared a moratorium on executions when he took office in 1967, before subsequently granting clemency in December 1970 to all fifteen men on death row.
The next grant of capital clemency in the “modern” death penalty era in Arkansas was in 1999, when Mike Huckabee commuted Bobby Ray Fretwell’s sentence to life in prison without parole after a juror came forward with reservations about his vote for death. This is the only post-Rockefeller grant of capital clemency in Arkansas.
Click here to view Arkansas resources for download, including clemency petitions and other relevant practice materials. Please note that not all of the content will be visible to users who are not currently logged in or do not otherwise have practitioner-access to the website.