The queen’s gambit: Gov. Sanders and Co. play political games with overcrowded prisons

Kasten Searles

In the early morning hours of Dec. 15, a prisoner named Anthony Mosley hanged himself with a bedsheet at the Ouachita River Unit, a state prison in Malvern.

According to Arkansas Department of Corrections policy, guards at the prison are required to conduct visual security checks on inmates every 30 minutes. That night, however, staffing shortages left three guards to do the work of five. Mosley went unobserved by staff between 12:46 a.m. and 2:13 a.m., when all three guards were handling inmates and paperwork related to incidents earlier in the evening. It was during this 90-minute window that Mosley hanged himself.

About 12 hours before Mosley died, the man in charge of the state prison system, Joe Profiri, was suspended from his job by the Arkansas Board of Corrections. Profiri was hired as corrections secretary by Gov. Sarah Huckabee Sanders in January 2023, and he soon began carrying out plans to add state prison beds as quickly as possible. But those plans hit a snag with the Board of Corrections — an independent panel that oversees the prison and parole systems — over concerns that the state’s understaffed facilities were approaching a breaking point.

Profiri and Sanders tried to ram through their changes regardless. The corrections board responded by suspending the secretary. A month later, the board fired Profiri outright, capping two months of public conflict with the governor, the attorney general and state lawmakers over who has final control over the prison system.

Behind the ongoing political drama is the looming problem of the overburdened, understaffed system. As of Jan. 1, there were 16,449 inmates in state prisons, which are built to house around 15,000 people; another 1,651 were being held in county jails, which provide “back up” prison space, for a total of 18,502.

More critical than the lack of space is the lack of personnel. According to department records, 981 positions among front-line corrections officers and corporals across the state were unfilled as of Feb. 2, representing 42% of the total.

At the Ouachita River Unit where Mosley died, nearly 46% of frontline positions are vacant. The numbers are as bad or worse at other state prisons, including Cummins (47%), Tucker (69%), Tucker Supermax (43%), McPherson (56%), Varner (48%), Wrightsville (51%), East Arkansas Regional (55%) and Mississippi County (45%).
Staff shortages mean danger for both guards and prisoners. Mosley’s was one of eight suicides among Arkansas Department of Corrections inmates in 2023, according to data provided by the ADC. A total of 48 inmates have taken their lives since the start of 2019.

So, what to do? The short-term answer from Sanders and Profiri has been to simply add more beds, regardless of the risks. A far-reaching bill championed by the governor and passed by the Legislature last spring will lock up more people for longer periods, and Sanders is also aiming to build a new, 3,000-bed prison in the coming years.

Never mind that Arkansas already has one of the five highest incarceration rates in the United States, imprisoning more than 550 people per 100,000 residents. The national rate is 307.

Not everyone is buying what the governor is selling. “If locking people up reduced crime, we would have the fourth lowest crime rate in America, but we don’t; we have the fifth highest crime rate,” said state Sen. Clarke Tucker (D-Little Rock), who voted against the bill. “We have to do something different. Building more prisons is just doing more of the same. It’s cheap from a policy perspective but very expensive from a dollars perspective and from a human cost perspective.”

Whitney Gass, a professor of criminal justice who served on the Board of Corrections until recently, cited similar concerns. “Over the long haul, locking people up for extended periods of time makes them less likely than before to conform to society’s rules,” she said, calling the desire to extend sentences “counterproductive.”

But, Gass added, there’s a more immediate issue. “We can’t employ enough staff to adequately monitor our inmate population as it is. Building a new prison is not going to solve that problem. In fact, I believe we will be hard-pressed to employ enough staff to open a new facility without a high percentage of vacancy from the start.”

The Protect Act

Shortly before he left office, former Gov. Asa Hutchinson announced plans to build a new 1,000-bed penitentiary and a 300-bed community corrections facility. Almost immediately after the 2022 election, though, Sanders announced that she and her staff were putting those plans on hold and working on their own, bigger corrections plan.

The announcement was anything but surprising. Sanders campaigned on crime and prison, inveighing against straw men who wanted to defund the police and vowing to limit or end parole for violent and repeat offenders.

To carry out her plans, she brought in Profiri, a former prison official from Arizona, at a salary of $210,000 — almost $40,000 more than the last secretary earned.

Then, Sanders began pushing a package of changes to state law. In the 2023 legislative session, state Sen. Ben Gilmore (R-Crossett) and state Rep. Jimmy Gazaway (R-Paragould) sponsored the “Protect Arkansas Act.” In 15 days, the 131-page bill sped through the Senate on a party-line vote, passed the House 82-14, and landed on Sanders’ desk. (For comparison, the governor’s notoriously rushed education bill, the 145-page LEARNS Act, went from introduction to being signed into law in 22 days.)

Similar to LEARNS’ impact on public schools, the wide-ranging Protect Act touches on nearly every aspect of corrections in the state. Most prominently, it overhauls Arkansas’s rules for parole. The new law will keep people convicted of certain crimes incarcerated for at least 85% of their sentences and remove the possibility of parole entirely for the most serious offenders. That’s in keeping with Sanders’ request to the Legislature last spring to set aside $470 million to eventually build a new prison that can house up to 3,000 inmates.

Under the Protect Act, felonies in which an offender must serve 100% of his or her sentence include capital or first-degree murder, aggravated robbery, rape, human trafficking and various crimes involving the sexual exploitation of children. The list also includes offenses such as aggravated residential burglary and possession of a firearm, in certain cases.

House sponsor Gazaway said the changes make sense. “Eliminating parole for the most heinous crimes is appropriate,” he said. “We’re talking about the worst crimes and repeat offenders; this isn’t too harsh of an outcome. We’re talking about violent criminals, not addicts.”

But Gass, the former corrections board member, said harsher sentences can be counterproductive. “Inmates need incentive to work hard,” she said. “If it doesn’t matter what their behavior is while they are incarcerated, there’s no real reason for them to behave.”

Even before the Protect Act, offenders convicted of many serious crimes had to serve 70% of their sentence before becoming parole eligible. Will incrementally increasing the length of time inmates serve on those convictions make a difference in public safety? It’s not clear.

“Going from 70% to 100% is not that drastic of a change,” Gazaway acknowledged, “[and] a lot of those folks weren’t getting paroled as soon as they hit 70% anyway.”

The idea behind limiting parole eligibility is to stop what Sanders and Attorney General Tim Griffin have called the board’s “failed catch-and-release policy” and the “revolving door in prisons.” This is a reference to the board’s use of the Emergency Powers Act, a law that allows the board to release prisoners up to 90 days earlier than the date they become eligible for parole when the prison system exceeds 98% capacity or there are more than 500 state inmates being held in county jails. About 2,400 prisoners per year have been released under the act between 2011 and 2021.

Tucker, the Democratic state senator, thinks “catch-and-release” is hyperbole. He pointed to a 2023 survey of seven Southern states that showed Arkansas was at the top of the list in time served for assault, robbery and drug offenses, regardless of the offender’s original sentence length.

For drug crimes specifically, “this means Arkansas was not only number one in average time served, but also that the average time served for drug offenses in Arkansas, before the Protect Arkansas Act, was more than double that of Texas, Missouri and Alabama,” Tucker said.

The impacts of the bill’s parole changes will pile up in the years to come. In the meantime, the system already has more prisoners than it can handle, and the population is growing. From Jan. 1, 2023, to Jan. 1, 2024, the state prison system gained 876 inmates, according to ADC figures.

With the governor insisting Arkansas needs to lock up more people, not fewer, that means adding prison beds to existing facilities — regardless of whether the system has the staff to do it.

Constitutional collision

On Nov. 17, Sanders, Profiri and Griffin held a press conference at the Capitol surrounded by state lawmakers and local law enforcement personnel. Sanders told reporters at the time that the Board of Corrections had recently voted against opening up “hundreds” of temporary prison beds “for no good reason whatsoever,” proving the board was “soft on crime” and part of the “failed status quo” she had sworn to end.

Griffin chimed in as well, going so far as to say that the board was making “Arkansans in this room and all around the state less safe” and calling for “constitutional and statutory change[s]” that would limit the board’s authority.

As it turned out, Sanders and Griffin’s complaints didn’t hold up to scrutiny. Audio from the Nov. 6 Board of Corrections meeting showed a prison official asked the board, on behalf of Profiri, that a total of 622 beds be added to five prisons. The board approved the expansion request for some of the prisons but not all of them.

Three days after the press conference, corrections board Chairman Benny Magness sent an open letter to Sanders and Griffin disputing the claims they had made. The request for new beds had been delivered “just minutes” before the start of the Nov. 6 meeting, he said. At the press conference, Sanders had urged the board to call an emergency meeting to approve the additional beds — but Magness said the board had not received a formal request to call a special meeting. Nor had anyone asked the board to add the request to its agenda for its next regularly scheduled meeting, either.

And any reluctance to add beds was due to the staffing shortfall, not opposition to the idea of adding prison capacity, Magness said. “We are currently experiencing staffing deficits unlike any other time in our history,” he wrote. “In some facilities over one-third of our open positions are unfilled.” More than two-thirds of the proposed additional beds were in three ADC units where staff vacancies ranged from 33% to nearly 39%, he said.

Magness, a former Baxter County sheriff first appointed to the corrections board in 1999 by Sanders’ father, then-Gov. Mike Huckabee, was an unlikely antagonist for the governor. But he and the other board members refused to back down.

At the heart of the dispute is a constitutional amendment born out of another fight between a board and a governor 80 years ago. Arkansas voters passed Amendment 33 to push back on actions taken by Gov. Homer Adkins after his election in 1940.

Adkins was angry that Roberta Fulbright, the publisher of a Fayetteville newspaper, had vocally supported Adkins’ opponent, former Gov. Carl Bailey. Bailey had appointed Fulbright’s son, future U.S. Sen. J. William Fulbright, as president at the University of Arkansas in 1939. After taking office in January 1941, Adkins installed new trustees at the university and had them fire J. William Fulbright as retaliation against his mother.

Public outrage followed, and the dean of the university law school drafted what would become Amendment 33. Approved by voters in 1942, Amendment 33 gave independence to the boards of public universities and the Board of Corrections, among other boards. It prohibited the governor from removing members without cause and said the powers of a board could not be reduced unless the institution was abolished or consolidated with another.

Two laws that passed in the 2023 legislative session, however, seem to conflict with Amendment 33. One of them says the secretary of the Department of Corrections serves at the pleasure of the governor, rather than the corrections board. The other is a provision in the Protect Act that says the directors of the department’s two divisions — the Division of Correction and the Division of Community Correction — serve at the pleasure of the secretary, rather than the board.

With these two statutes, the Legislature changed the structure of the operations of Arkansas prisons immensely. Previously, a governor nominated the corrections secretary, but he or she served directly under the supervision and control of the Board of Corrections. Now, the governor would have full control over the chief of the department (and by extension, their top deputies). It was only a matter of time before the conflict between the legislative changes and Amendment 33 came to a head.

Profiri out

The moment came in early December, when Profiri said he was moving ahead with Sanders’ plan to add temporary beds despite the board’s objections. Alexa Henning, the governor’s spokesperson, said at the time that, “The Board of Corrections had plenty of time to do the right thing but chose not to act, so the governor and secretary, who has the authority to open certain bed space, are going to do everything in their power to keep Arkansans safe.”

Anticipating a legal battle, the board voted 3-2 at its Dec. 8 meeting to hire an outside attorney to represent it in employment matters. Under normal circumstances, the attorney general would act as the board’s lawyer, but Griffin had made it clear he was not on the board’s side.

On Dec. 14, the board authorized its outside counsel to take the necessary steps to resolve the conflict between the two new laws and Amendment 33. The board also voted to suspend Profiri with pay, based in part on the secretary showing “disdain” for the board’s authority.

Later that day, the board filed a lawsuit in Pulaski County Circuit Court against the governor and Profiri and asked for an injunction to block the two new laws. Circuit Judge Patricia James entered a temporary restraining order the next day, holding that the two statutes “usurped the board’s power” under the state constitution. Profiri remained under the board’s control.

Benny Magness proposed to the governor that the conflict could be resolved by assigning 138 National Guard members to help staff prisons. But Sanders called that request a “political stunt” and demanded that Magness resign, which he declined to do.

When Judge James held a full hearing Jan. 4, things only got worse for Profiri and the governor. Magness and others testified about Anthony Mosley’s death at the Ouachita River Unit, saying that the lack of adequate staffing was why Mosley went unobserved for nearly 90 minutes. This lack of adequate staffing was explicitly why the board had not agreed to add beds at the pace the governor wanted, they said.

A former director of the Division of Community Correction, Jerry Bradshaw, testified that Profiri had raised the possibility of using tents for inmates if there was not enough room inside the prisons. (This was done in Arizona for several years when Profiri was an administrator there, leading to lawsuits.) Bradshaw also said Profiri routinely refused to talk to anyone about his plans for the Arkansas prison system, even when asked directly by board members. Profiri, who was not in attendance, was described at the hearing as “disdainful,” “rude,” “insubordinate” and “unprofessional.” No one testified in support of him.

The judge sided with the board and ruled that Profiri would remain under the board’s supervision until litigation over the two new laws was completed. On Jan. 10, the board voted 5-2 to fire Profiri.

Sanders announced almost immediately that she was hiring Profiri as a “senior advisor on corrections issues” in her office. He is now earning $201,699 per year, after Sanders got the Legislature to approve an additional $104,000 to cover Profiri’s salary until this summer.

The corrections board scored another legal victory later in January. In a separate lawsuit, Griffin had sued the board over its hiring of outside counsel and alleged violations of the state Freedom of Information Act. On Jan. 22, Pulaski County Circuit Judge Tim Fox dismissed the attorney general’s lawsuit.

Profiri’s ouster left the Department of Corrections without a day-to-day executive for several weeks. On Jan. 31, the board hired Eddie Joe WIlliams, a former Republican state senator from Cabot, and a longtime advocate for private prison companies, to be “temporary executive-in-charge.” Griffin sent the board and Williams a letter arguing that the secretary can only be appointed by the governor. Griffin threatened that Williams might be sued and have to return any money he was paid if he did not immediately resign.

Williams did indeed resign, and two days later, Sanders announced she had nominated ADC chief of staff Lindsay Wallace to be the new corrections secretary. Sanders mentioned she had already discussed the nomination with Magness and other board members, a possible sign the governor had decided to switch tactics and make nice. The board approved Wallace as secretary on Feb. 15.

But on Feb. 20, Griffin announced he was appealing both recent circuit court rulings to the Arkansas Supreme Court, indicating the governor will continue her effort to seize power from the corrections board.

Most board members seem dug in. “It is clear to me that what we are experiencing is a continuing political attack on a constitutional board that by its very design and creation under Amendment 33 is supposed to be insulated from these games,” board member Lee Watson wrote in a recent open letter to the attorney general.

Sanders made another misstep in January with her appointment of Jamol Jones as chair of the state parole board, giving him an automatic seat on the Board of Corrections as well. News quickly broke that Jones had been fired from the Benton Police Department in 2018 for having sex with a 17-year-old girl and then lying about it. Sanders’ spokesperson issued a statement defending Jones, but he resigned after less than a week on the board.

Another member of the Board of Corrections, Alonza Jiles, is now under fire due to a series of lawsuits that allege widespread sexual abuse at a youth behavioral health facility where he served as a deputy administrator for many years, the Lord’s Ranch. Griffin and legislative allies of the governor — including Sen. Ben Gilmore, the co-sponsor of the Protect Act — have said Jiles should step down, but Sanders herself has not called for his resignation thus far. Her position may be complicated by the fact that her father is a friend and ally of the former head of the Lord’s Ranch; Mike Huckabee originally appointed Jiles to the corrections board in 2006. 

Neither Sanders nor Griffin responded to requests for comment. Magness did not respond to a request for comment sent through the attorney representing the corrections board.

Overwhelmed

The Protect Act makes a variety of other changes to the corrections system, some of which are less punitive. Tucker, who opposed the bill as a whole, praised its creation of a legislative task force on recidivism and a provision that grants inmates who give birth in custody 72 hours with their newborn in most instances. (Previously, inmates were limited to 24 hours of contact after giving birth.) The Protect Act prioritizes keeping incarcerated parents close to their minor children and emphasizes the need to prepare inmates for reentry, he said.

Gazaway touted the recidivism task force and money for drug courts and diversion programs. He’s proud that the law postpones when a person has to begin paying fines for 120 days after he or she is released from prison. Recently released prisoners have told him “they had to start paying fines before they even had a chance to look for a job after getting out,” Gazaway said.

But it’s the changes to the parole system that are likely to have the biggest impact on the prison system, with its 42% vacancy rate among rank-and-file corrections officers and corporals.

The numbers improve quite a bit beyond those front-line security positions, ADC figures show. Only 13% of 706 sergeant positions, fewer than 9% of lieutenants, zero captains and only one major out of 24 spots are unfilled.

The increased safety risk from direct interaction with inmates is a hard sell when the starting pay for a corporal is a little over $40,000 per year. But there are other factors, too.

“The hassle of dealing with the prison supervising bureaucracy makes the job even less appealing,” said Jeff Rosenzweig, a defense lawyer and criminal justice reform advocate in Little Rock. There’s also the fact that prisons tend to be in poorer, lower-growth parts of the state.

“In addition to pay, the prisons are placed in areas with declining populations, thus reducing the number of people available to apply,” he said.

Gass said the existing vacancies should be a dealbreaker when it comes to building a new facility. “If we can’t adequately staff the units we currently have, building a new prison shouldn’t even be considered a viable option,” she said. “We will have no more success retaining employees at a new unit until we’ve figured out what the issues are in our existing units. That’s just common sense.”

In an effort to fill vacant positions and retain employees, the Legislature bumped up all ranked positions (corporals, sergeants, etc.) two grades on the state’s pay chart last spring and appropriated an additional $20 million for salaries and benefits. Current employees should receive raises ranging from $8,000 to $12,000 — but the new money won’t be enough to fully cover raises even for existing workers, let alone recruit new frontline staff.

Arkansas Department of Corrections

Wallace, the new corrections secretary, said the department “already had sufficient appropriation and funding to cover any increase in pay” resulting from the pay grade bump. But this is partly due to the number of empty positions in the prison workforce.

If the nearly 1,000 vacant corporal positions go unfilled, how can Arkansas keep inmates in prison longer? An economic impact statement attached to the Protect Act said it’s expected to cost the state an additional $163.8 million over the next 10 years and increase the prison population by 1,465 by 2033.

The number of prisoners was swelling even before the new law. The prison population was 17,784 at the beginning of 2020. It dipped to 16,104 in 2021, due to COVID-19, but by Jan. 1 this year it had rebounded above pre-pandemic levels, to 18,502. Adding almost 1,500 more inmates on top of that baseline growth will clog the corrections system even more.

“The real population crunch will come in the early 2030s, when people who otherwise might be getting out will remain there for another decade or two,” Rosenzweig said.

Gazaway, the House sponsor of the Protect Act, said the parole changes are worthwhile.

“I can’t say for sure — no one can — but when I was presenting the bill, I gave very specific examples of people committing murders while on parole who wouldn’t have been eligible for parole under the Protect Act,” he said. “That’s a real impact: Additional Arkansans would still be alive if their killers had gone to prison the first time under the Protect Act.”

Others argue that harsher sentencing ends up being counterproductive in the long run. “Locking people up for longer periods of time, in theory, protects Arkansas from that offender while they are incarcerated, but there are other issues to consider,” Gass said. “Removing that offender from society leaves a void or a hole in a family, community, organization … and just as places of employment replace employees in short order, families, communities and organizations do the same.

“The incarcerated person was likely meeting or contributing to someone or something’s financial need. Just because that person is incarcerated doesn’t mean that need goes away. If those persons don’t have a legitimate way of meeting the financial need, they will resort to criminality to meet it.”