Board of Corrections Fight with Governor
More at stake than you may realize.
By David Ferguson
The conflict between the state Board of Corrections and Governor Sarah Sanders began with the board dragging its feet on constructing more space to house state prisoners. The conflict escalated to the point where the board suspended the Secretary of Corrections for siding with the Governor, and the board filed a lawsuit against Governor Sanders and the Secretary.
The lawsuit challenges the law which says: the Secretary of Corrections serves “at the pleasure of the Governor”, and the Director of Corrections serves at the pleasure of the Secretary. The board says these provisions violate the board’s authority over prisons and corrections employees. They cite Amendment 33 to the Arkansas Constitution as protecting their powers.
GOVERNOR SANDERS DIDN’T CREATE THE PROBLEM
While Governor Sanders’ exercise of power is the focus of the lawsuit, it was Governor Asa Hutchinson, who is an attorney, who caused the conflict. The statutes the board says are unconstitutional were proposed by Governor Asa Hutchinson and passed by the legislature as Act 910 of 2019. Hutchinson’s Act 910 was his plan to rein in independent boards and commissions by creating an expensive level of government over the boards and which is answerable to the Governor, not the boards. Governor Hutchinson’s power grab worked for most of the boards and commissions. The question is whether it also works on the Board of Corrections whose duties are protected by Amendment 33.
WHAT IS AMENDMENT 33?
Amendment 33 is a provision in the Arkansas Constitution that provides protections to boards or commissions charged with the management or control of a charitable, penal or correctional institution, or an institution of higher learning. Amendment 33 was proposed in response to numerous changes to such boards. Amendment 33 was ratified in 1942 to stop the constant changes.
Amendment 33 prevents the terms of office or the number of members from being changed and says a member can only be removed for cause. The part of Amendment 33 that is the focus of the current lawsuit is Section 2, which prevents the legislature from transferring the powers of such a board to another entity. Section 2 reads in part:
“The board or commission of any institution, governed by this amendment, shall not be abolished nor shall the powers vested in any such board or commission be transferred, unless the institution is abolished or consolidated with some other State institution.”
The lawsuit claims Act 910 unconstitutionally transfers the board’s powers by declaring the Secretary of Corrections serves at the pleasure of the Governor and the Director serves at the pleasure of the Secretary.
THE BOARD ALSO TO BLAME?
Why didn’t the board object to Act 910 when the legislature was considering Governor Hutchinson’s proposal in early 2019? Why didn’t the board file their lawsuit during the next three years of Governor Hutchinson’s service? Could it be the board members appointed by Governor Hutchinson decided to not offend him and just keep their mouths shut until a new governor was elected?
IT’S MUCH BIGGER THAN JUST WHO AN EMPLOYEE ANSWERS TO
If you think the lawsuit is not a big deal because it is only about who supervises an employee, you would be wrong.
The board waited to raise their concerns at possibly the worst time. They waited to assert board powers until it would derail prison construction approved by Governor Sanders and the General Assembly.
Some blue states have basically adopted a catch and release policy for criminals. Their liberal policies are endangering their citizens and driving out business. Governor Sanders and the Arkansas General Assembly took the opposite tact by deciding not to continue down the road of catch and release and instead to get tougher on some crimes and by expanding prisons.
Why expand prisons? First, prison overcrowding has been a problem for decades and periodically results in the early release of hundreds of prisoners in order to make space. Second, for many decades county jails have had to hold state prisoners for lack of state prison space. The backlog of state prisoners in county jails puts pressure on county taxpayers to build bigger jails (which often means an increase in county taxes). Yes, counties get some reimbursement for housing state prisoners, but counties will tell you that often the reimbursement has not been a fair amount.
The Board of Corrections has dragged its feet on prison construction despite Governor Sanders and the General Assembly making prison construction a high priority. The Board declared they need more staff before expanding, while the Governor says start building now, and we will deal with staffing when the time comes. Staffing issues likely have to wait until a future legislative session, while legislation for the construction of more prison space is already in place.
Taken to the extreme, under the Board’s interpretation of its powers under Amendment 33, the board could force Arkansas to become a full scale catch and release state, by closing some prisons. Is that really the kind of power Amendment 33 was intended to protect.
WHAT WILL BE THE OUTCOME
I think the board has a good chance of winning the lawsuit, and I was not surprised when a circuit court judge granted the board a restraining order keeping the Governor from enforcing Act 910.
Not everyone would agree with my interpretation. I recall several conversations in the 1980’s and 1990’s with a Democrat attorney-legislator whose primary concern was education. He hoped some university would file an Amendment 33 lawsuit against some law, any law passed by the General Assembly. He was convinced the Arkansas Supreme Court, which was dominated by Democrats at the time, would interpret Section 2 of Amendment 33 narrowly and give the legislature the green light to assert more control over universities.
CONSEQUENCES?
Although universities are not involved in this lawsuit, I’m sure they are watching closely, hoping for a ruling giving Amendment 33 boards even more independence from the General Assembly. That would be bad news for Republicans who have sought to rein in universities for teaching critical race theory; for refusing to let go of diversity, equity, and inclusion programs (DEI) even after an unfavorable ruling by the U.S. Supreme Court; and for the University of Arkansas initially approving an event about Israel and the Palestinian people which appeared to have a one-sided and antisemite tone.
There is a possibility the fight over approving prison beds might be the spark that causes the General Assembly to propose a constitutional amendment to modify Amendment 33 by allowing the executive and legislative branches more control over the operation of institutional boards. It is a fight that some have wanted for a very long time.
The conflict between the Board of Corrections and the Governor is a big deal. It will be interesting to watch whether the conflict escalates or de-escalates and what will be the outcome for Amendment 33 boards.
