Arkansas
Impact Assessment for HB1635
Sentencing Sponsored by Representatives Petty & Dotson
Commission
Subtitle CONCERNING AN INCREASE IN THE SENTENCING RANGE FOR REPEAT FELONY SEX
OFFENDERS; CONCERNING SEX OFFENDER REGISTRATION REQUIREMENTS; AND CONCERNING SEX
OFFENSES AND SEX OFFENDERS.
Impact Summary1 Cannot be determined.
Change from current law2
Sections 1 & 2. Amend Arkansas Code Annotated 5-4-501 (a) and (b) to expand the types of offenders eligible for an
enhanced sentencing range as a habitual offender. Under the proposed bill, a defendant who is convicted of a felony
offense for which he or she is required to register as a sex offender under the Sex Offender Registration Act, 12-12-
901 et seq., and has been found guilty of more than one (1) felony that would require a person to register as a sex
offender under the Sex Offender Registration Act is eligible for an enhanced sentencing range. The chart below
indicates normal sentencing ranges, ranges available for habitual offenders, and ranges proposed under this bill. Please
note that the enhanced range in this section of the proposed bill applies only when the defendant is not subject to a
longer term under existing provisions in A.C.A. 5-4-501.
Felony Normal Range Habitual (a) Habitual (b) Habitual (c) Habitual (d) Proposed bill
Class (no parole) (no parole)
Y 10-40 or Life 10-60 or Life 10-Life 40-80 or Life Life 15-60 or Life
A 6-30 6-50 6-60 40-80 or Life 40-Life 10-40 or Life
B 5-20 5-30 5-40 40-80 or Life 30-60 6-30
C 3-10 3-20 3-30 40-80 or Life 25-40 5-20
D 0-6 0-12 0-15 40-80 or Life 20-40 3-10
*See attached full reproduction of the habitual offender statute [A. C. A. 5-4-501] for more information.
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This impact assessment was prepared (3/26/2019, 8:01 a.m.) by the staff of the Arkansas Sentencing Commission pursuant to A. C. A.
16-90-802(d)(6) with data supplied by the Arkansas Department of Correction and the Administrative Office of the Courts. A micro-
simulation model may be used for bills which have the potential for significant impact on correctional resources. The following
designations will be used: minimal = less than 10 offenders per year will be affected; medium = would require budgetary increases for
ADC inmate costs; and major = would require budgetary increases for ADC inmate costs and construction costs for additional beds.
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Standard punishment ranges: Misdemeanors
Class Y 10-40 years or life Class C 3-10 years; up to $10,000 Class A Up to 1 year; up to $2,500
Class A 6-30 years; up to $15,000 Class D 0-6 years; up to $10,000 Class B Up to 90 days; up to $1,000
Class B 5-20 years; up to $15,000 Unclassified As specified in statute Class C Up to 30 days; up to $500
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Section 3. Amends A.C.A. 5-4-501 to add a new subsection (i), which sets a new minimum term of imprisonment of
thirty (30) years for an offender classified as a habitual offender who commits an offense of rape in which the victim is
less than fourteen (14) years of age. Currently, the minimum term of imprisonment for an offender who commits an
offense of rape in which the victim is less than fourteen (14) years of age is twenty-five (25) years, regardless of the
offenders criminal history. [See attached for a copy of A.C.A. 5-14-103 (c)(2).]
Section 4. Amends A.C.A. 5-14-124, Sexual assault in the first degree, to remove an element of the offense in one
course of conduct. Under current law, a person commits sexual assault in the first degree if the person engages in
sexual intercourse or deviate sexual activity with a minor who is not the actors spouse and the actor is a mandated
reporter under 12-18-402 (b) and is in a position of trust or authority over the victim and uses the position of trust or
authority to engage in sexual intercourse or deviate sexual activity. The proposed bill removes the element of the
offense requiring that the offender use his or her position of trust or authority to engage in sexual intercourse or deviate
sexual activity. Under current law and the proposed bill, a violation of A.C.A. 5-14-124, Sexual assault in the first
degree, is a Class A felony. [Please note that there are other courses of conduct by which the offense of Sexual assault
in the first degree can be committed. This impact focuses solely on the amended portion. See attached for a copy of
A.C.A. 5-14-124.]
Section 5. Amends A.C.A. 5-14-128, Registered offender living near school, public park, youth center, daycare, or
church or other place of worship, to increase the penalty. Currently, a violation of A.C.A. 5-14-128 is a Class D
felony. Under the proposed bill, the penalty is increased to a Class C felony for a first offense, and is increased to a
Class B felony if the person has a prior conviction for A.C.A. 5-14-128 or for a substantially similar offense in
another jurisdiction. [See attached for a copy of A.C.A. 5-14-128.]
Section 6. Rewrites and amends A.C.A. 12-12-904, Failure to comply with registration and reporting requirements.
The proposed bill does not amend existing courses of conduct by which a person can commit the offense of failure to
comply with registration and reporting requirements. Under current law and the proposed bill, a violation of A.C.A.
12-12-904, Failure to comply with registration and reporting requirements, is Class C felony. The proposed bill creates
a Class B felony for a second or subsequent offense of failure to comply with registration and reporting requirements.
Impact Information
This proposed bill has several sections for which data does not exist or is not uniformly reported. As a result, the
cumulative impact of the bill cannot be determined. The following data is provided for informational purposes only.
Sections 1 & 2. The impact of these sections of the proposed bill cannot be determined. These sections of the proposed
bill lengthen the available sentencing range for a person convicted of a sex offense as a habitual offender. The available
range depends on which habitual offender statute the offender is charged with. Determination of habitual offender
status is entirely dependent upon the criminal history of an offender. While lengthening the available range will likely
have an impact on prison sentence length, any determination of impact for this particular section would be purely
speculative because data will vary for each individual offender.
Section 3. The impact of this section of the proposed bill cannot be determined. A.C.A. 5-14-103 sets a minimum
term of imprisonment of twenty-five (25) years for a person who commits the offense of rape if the victim is less than
fourteen (14) years of age. The proposed bill sets a minimum term of imprisonment of thirty (30) years if the victim is
less than fourteen (14) years of age and the offender is classified as a habitual offender under 5-4-501 (a) or (b), Rape
is classified as a 70% crime, meaning a conviction for rape will result in an offender serving at least 70% of his or her
sentence before becoming eligible for transfer to community supervision. This section of the proposed bill will subject
a person who committed the offense of rape of a person who is less than fourteen (14) years of age to a lengthened
sentencing range, with a minimum sentence of thirty (30) years: 30 to 60 years, or life. Further, he or she would be
required to serve at least 70% of his or her sentence before becoming eligible for transfer to community supervision.
Section 4. The impact of this section of the proposed bill is projected to be minimal. The Arkansas Department of
Correction (ADC) reports that there are currently 247 inmates serving a term of incarceration for A.C.A. 5-14-124,
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Sexual assault in the first degree. Of those, 216 inmates are serving a term of incarceration for which A.C.A. 5-14-
124, Sexual assault in the first degree, is the primary offense.
Section 5. The impact of this section of the proposed bill cannot be determined. ADC reports that there are currently
thirty-one (31) inmates serving a term of incarceration for A.C.A. 5-14-128, Registered offender living near school,
public park, youth center, daycare, or church or other place of worship. Of those, seventeen (17) inmates are serving a
term of incarceration for which A.C.A. 5-14-128, Registered offender living near school, public park, youth center,
daycare, or church or other place of worship, is the primary offense. Data is unavailable as to the number of offenders
who have a prior conviction for this offense or similar offense from another jurisdiction; therefore, any determination
of impact would be speculative.
Section 6. The impact of this section of the proposed bill cannot be determined. The following data is provided for
informational purposes only. The Arkansas Crime Information Center reports that there are 631 registered sex
offenders with two (2) or more convictions for a violation of A.C.A. 12-12-904, Failure to comply with registration
and reporting requirements. Of those, 481 had two (2) convictions, 109 had three (3) convictions, thirty-nine (39) had
four (4) convictions, one (1) had five (5) convictions, and one (1) and six (6) convictions. This data includes all sex
offenders on the registry, and is not limited by date.
ADC reports there are currently 644 inmates serving a term of incarceration for A.C.A. 12-12-904, Failure to comply
with registration and reporting requirements. Of those, 212 inmates are serving a term of incarceration for which
A.C.A. 12-12-904, Failure to comply with registration and reporting requirements, is the primary offense. ADC data
does not distinguish which offenders serving a term of incarceration for A.C.A. 12-12-904 had a prior conviction for
A.C.A. 12-12-904. Therefore, any determination of impact would be speculative.
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A.C.A. 5-4-501. Habitual offenders -- Sentencing for felony.
(a) (1) A defendant meeting the following criteria may be sentenced to pay any fine authorized by law for the felony
conviction and to an extended term of imprisonment as set forth in subdivision (a)(2) of this section:
(A) A defendant who:
(i) Is convicted of a felony other than those enumerated in subsections (c) and (d) of this section committed after June
30, 1993; and
(ii) Has previously been convicted of more than one (1) felony but fewer than four (4) felonies or who has been found
guilty of more than one (1) but fewer than four (4) felonies;
(B) A defendant who:
(i) Is convicted of any felony enumerated in subsection (c) of this section committed after August 31, 1997; and
(ii) Has previously been convicted of more than one (1) felony but fewer than four (4) felonies not enumerated in
subsection (c) of this section or who has been found guilty of more than one (1) but fewer than four (4) felonies not
enumerated in subsection (c) of this section; or
(C) A defendant who:
(i) Is convicted of any felony enumerated in subsection (d) of this section committed after August 31, 1997; and
(ii) Has previously been convicted of more than one (1) felony but fewer than four (4) felonies not enumerated in
subsection (d) of this section or has been found guilty of more than one (1) but fewer than four (4) felonies not
enumerated in subsection (d) of this section.
(2) The extended term of imprisonment for a defendant described in subdivision (a)(1) of this section is as follows:
(A) For a conviction of a Class Y felony, a term of imprisonment of not less than ten (10) years nor more than sixty
(60) years, or life;
(B) For a conviction of a Class A felony, a term of imprisonment of not less than six (6) years nor more than fifty (50)
years;
(C) For a conviction of a Class B felony, a term of imprisonment of not less than five (5) years nor more than thirty
(30) years;
(D) For a conviction of a Class C felony, a term of imprisonment of not less than three (3) years nor more than twenty
(20) years;
(E) For a conviction of a Class D felony, a term of imprisonment of not more than twelve (12) years;
(F) For a conviction of an unclassified felony punishable by less than life imprisonment, a term of imprisonment not
more than five (5) years more than the maximum sentence for the unclassified felony; and
(G) For a conviction of an unclassified felony punishable by life imprisonment, a term of imprisonment not less than
ten (10) years nor more than fifty (50) years, or life.
(b) (1) A defendant meeting the following criteria may be sentenced to pay any fine authorized by law for the felony
conviction and to an extended term of imprisonment as set forth in subdivision (b)(2) of this section:
(A) A defendant who:
(i) Is convicted of a felony other than a felony enumerated in subsections (c) and (d) of this section committed after
June 30, 1993; and
(ii) Has previously been convicted of four (4) or more felonies or who has been found guilty of four (4) or more
felonies;
(B) A defendant who:
(i) Is convicted of any felony enumerated in subsection (c) of this section committed after June 30, 1997; and
(ii) Has previously been convicted of four (4) or more felonies not enumerated in subsection (c) of this section or who
has been found guilty of four (4) or more felonies not enumerated in subsection (c) of this section; or
(C) A defendant who:
(i) Is convicted of any felony enumerated in subsection (d) of this section committed after June 30, 1997; and
(ii) Has previously been convicted of four (4) or more felonies not enumerated in subsection (d) of this section or who
has been found guilty of four (4) or more felonies not enumerated in subsection (d) of this section.
(2) The extended term of imprisonment for a defendant described in subdivision (b)(1) of this section is as follows:
(A) For a conviction of a Class Y felony, a term of imprisonment of not less than ten (10) years nor more than life;
(B) For a conviction of a Class A felony, a term of imprisonment of not less than six (6) years nor more than sixty (60)
years;
(C) For a conviction of a Class B felony, a term of imprisonment of not less than five (5) years nor more than forty
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(40) years;
(D) For a conviction of a Class C felony, a term of imprisonment of not less than three (3) years nor more than thirty
(30) years;
(E) For a conviction of a Class D felony, a term of imprisonment of not more than fifteen (15) years;
(F) For a conviction of an unclassified felony punishable by less than life imprisonment, a term of imprisonment not
more than two (2) times the maximum sentence for the unclassified felony offense; and
(G) For a conviction of an unclassified felony punishable by life imprisonment, a term of imprisonment not less than
ten (10) years nor more than fifty (50) years, or life.
(c) (1) Except as provided in subdivision (c)(3) of this section, a defendant who is convicted of a serious felony
involving violence enumerated in subdivision (c)(2) of this section and who previously has been convicted of one (1) or
more of the serious felonies involving violence enumerated in subdivision (c)(2) of this section may be sentenced to
pay any fine authorized by law for the serious felony involving violence conviction and shall be sentenced:
(A) To imprisonment for a term of not less than forty (40) years nor more than eighty (80) years, or life; and
(B) Without eligibility for parole or community correction transfer except under 16-93-615.
(2) As used in this subsection, "serious felony involving violence" means:
(A) Any of the following felonies:
(i) Murder in the first degree, 5-10-102;
(ii) Murder in the second degree, 5-10-103;
(iii) Kidnapping, 5-11-102, involving an activity making it a Class Y felony;
(iv) Aggravated robbery, 5-12-103;
(v) Terroristic act, 5-13-310, involving an activity making it a Class Y felony;
(vi) Rape, 5-14-103;
(vii) Sexual assault in the first degree, 5-14-124;
(viii) Causing a catastrophe, 5-38-202(a);
(ix) Aggravated residential burglary, 5-39-204; or
(x) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, 5-13-211, if a Class
Y felony; or
(B) A conviction of a comparable serious felony involving violence from another jurisdiction.
(3) A defendant who is convicted of rape, 5-14-103, or sexual assault in the first degree, 5-14-124, involving a
victim less than fourteen (14) years of age and who has previously been convicted of one (1) or more of the serious
felonies involving violence enumerated in subdivision (c)(2) of this section may be sentenced to pay any fine
authorized by law for the rape or sexual assault in the first degree conviction and shall be sentenced to life in prison
without the possibility of parole.
(4) (A) The following procedure governs a trial at which a sentence to an extended term of imprisonment is sought
pursuant to this subsection:
(i) The jury shall first hear all evidence relevant to the serious felony involving violence with which the defendant is
currently charged and shall retire to reach a verdict of guilt or innocence on this charge;
(ii)
(a) If the defendant is found guilty of the serious felony involving violence, out of the hearing of the jury the trial court
shall hear evidence of whether the defendant has pleaded guilty or nolo contendere to or been found guilty of a prior
serious felony involving violence and shall determine the number of prior serious felony involving violence
convictions, if any.
(b) The defendant has the right to hear and controvert evidence described in subdivision (c)(4)(A)(ii)(a) of this section
and to offer evidence in his or her support;
(iii)
(a) The trial court shall then instruct the jury as to the number of prior convictions for a serious felony involving
violence and the statutory sentencing range.
(b) The jury may be advised as to the nature of a prior serious felony involving viole