Arkansas Corrections Board chair responds to criticism from governor, attorney general

From the Arkansas Advocate:

The Arkansas Board of Corrections rejected a request to expand prison capacity this month because of severe staffing shortages and existing crowding, board Chairman Benny Magness says in a Nov. 20 letter to the governor and attorney general.

Magness’ 6 ½-page letter came in response to a Nov. 17 press conference at which Gov. Sarah Huckabee Sanders and Attorney General Tim Griffin criticized the corrections board for failing to approve a request to temporarily expand the prison system’s capacity by 622 beds.

Sanders said the board rejected Corrections Secretary Joe Profiri’s expansion plan for “no good reason whatsoever” at its Nov. 6 meeting.

“All that stands between us and a safer, stronger Arkansas is bureaucratic red tape,” she said. She urged the board to call an emergency meeting to take up Profiri’s request.

Magness noted in his letter that the board had not received a formal request to call a special meeting ahead of its Dec. 8 meeting. Nor has it been asked to add the request to the regular agenda, he said, asserting the board’s independence from the administration and the Legislature.

The key reasons for rejecting Profiri’s request are severe staffing shortages and an inability to find job candidates for some of the prisons located in remote areas of the state, Magness said.

“We are currently experiencing staffing deficits unlike any other time in our history,” Magness said. “In some facilities over one-third of our open positions are unfilled,” noting that 69% of the proposed additional beds were in three units where staff vacancies range from 33% to nearly 39%.

“Overcrowded and understaffed prisons are a recipe for catastrophe,” he said.

The state prison system is already above capacity, he noted. The Division of Corrections’ approved total capacity is 15,022 inmates, but as of Monday, the actual number being held in the division’s facilities was 16,288 — or 1,266 over capacity. That does not include about 2,000 state inmates held in county jails because of the crowding in state prisons, Magness noted.

State inmates in county jails have led to overcrowding in those lockups, which has prompted efforts to expand the state’s inmate capacity. Sanders’ administration has set aside money to build a new prison and add more than 3,000 new beds, but building prisons takes time — hence Profiri’s efforts to find ways to expand capacity in existing facilities. The state last built a new prison in 2005.

The corrections board approved an earlier Profiri request to add more than 450 beds at existing community corrections facilities, but turned down the latest request because the board did not get information it needed to make an informed decision, Magness wrote.

“The Division (of Corrections) lacks the resources to overcrowd prisons, and to do otherwise would place our officers, inmates, and the public at risk. Taking these actions, without a fully informed and vetted plan, would be unethical, dangerous, and reckless,” Magness’ letter states.

“In addition to the human harm that dangerous prison situations can create, I am concerned that taking such actions without appropriate consideration will lead to additional litigation and potentially federal supervision,” the letter says.

Sanders and Griffin doubled down on their criticism of the Board of Corrections when asked for comment Tuesday night.

“Governor Sanders’ top priority is keeping Arkansans safe, and finds it completely unacceptable that the Board of Corrections fails to take action, choosing to write multi-page letters defending catch and release instead of opening additional prison beds to keep violent, repeat offenders behind bars,” said a statement provided by Sanders’ Communications Director Alexa Henning.

“Arkansans deserve better, and the Sanders administration will continue to do everything in its power to enforce the law and keep the most dangerous criminals off our streets,” Sanders added.

In a statement provided by spokesman Jeff LeMaster, Griffin said: “Allowing an unelected board to thwart the will of the governor and the legislature is a horrible way to run state government and deserves a fresh examination.

“The Chairman has presided over decades of prison policy that has made us less safe and brought us to the breaking point. The best option for all Arkansans is for the board to approve more prison beds now,” Griffin added.

“Constitutional crossroads”

Magness’ letter also raised concerns about recent attempts by the governor and the Legislature to limit the board’s independence, putting the administration and lawmakers at odds with the board’s constitutional responsibilities.

“I take no joy in making the simple observation that we find ourselves at a constitutional crossroads,” Magness wrote.

Amendment 33 of the Arkansas Constitution “was designed to shield educational, charitable, penal and correctional boards and commissions from political interference,” Magness said. The amendment “specifically prohibits” the governor and General Assembly from reducing the powers of these institutions or meddling with their governing boards…

“Unfortunately, recent legislative maneuvering has undermined the separation of powers required by Amendment 33,” the letter says.

The letter refers to Acts 185 and 659 of 2023, “which purport to amend various statutes relating to the Board’s powers of hiring, firing, and supervising.”

“Specifically, Act 185 purports to require the Secretary of Corrections to ‘serve at the pleasure of the Governor,’” Magness writes, noting that the Board has the authority under Amendment 33 and subsequent laws to approve or reject the governor’s nominee.

Act 659, which hasn’t taken effect yet, would transfer supervision of the directors of Corrections, Community Corrections, and the Arkansas Sentencing Commission to the Secretary of Corrections, rather than the Board.

“While I vigorously supported the Protect Act and testified in its favor, my only opposition to that law was based on Amendment 33’s explicit and important separation of powers. The Attorney General’s remarks [at the press conference] to the contrary were objectively false,” Magness wrote.

Magness testified against the PROTECT Act in committee, though he said he would’ve preferred not to have declared whether he was speaking for or against the bill. He said he supported much of the bill, but he also had several qualms with the legislation. Most of his testimony focused on provisions that he felt would weaken the board’s oversight of department leaders.

The Board of Corrections is responsible for managing the correctional resources of Arkansas, including the divisions cited in Act 659, the letter states.

“I believe the attempted alteration of Secretary Profiri’s duties to the Board has dealt incredible damage to the safety and security of Arkansans,” Magness said. “Secretary Profiri has taken the erroneous position that he is unaccountable to the Board.”

“While we might disagree about the proper separation of powers in our non-unified form of executive government, I reject the premise that our respective constitutional offices should be adversarial,” Magness said, adding that the board seeks more open communication with administration officials.

“Finally, while it is your prerogative to hold press conferences, I personally believe that more work can be accomplished in a conference room than in a press hall. Otherwise, given your stated support for protecting Arkansans, I trust that your administration will support a robust funding measure at our next fiscal session,” Magness wrote.