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First, Arkansas held Tim Howard in a cell on death row for 14 years after a trial in 1999 that would later be ruled illegal. Then, after the jury at his second trial this spring sentenced him to a term of years that would make him immediately eligible for parole, the state refused to grant him the necessary parole hearing.
On May 8, Howard's new jury sentenced him to a total of 38 years in prison. It did not pull that number from a hat. Before the jurors began deliberating, they asked the judge if they could set the length of Howard's sentence. The judge said they could, but only if they found Howard guilty of nothing greater than second-degree murder, which is what the jury did.
When it came to sentencing, the jurors were instructed that if they sentenced Howard to a term of years, he would be eligible to be transferred out of prison after serving half of whatever time they gave him.
In addition, the jurors were told:
"The term of imprisonment may be reduced further, up to one-fourth of the period you impose, if the defendant earns the maximum amount of 'meritorious good time' during his imprisonment."
Howard has always maintained that he is innocent of the murders for which he was convicted. Throughout his time on death row he was a model prisoner. One-fourth of his new 38-year sentence would be nine and a half years — considerably less than the time he had already spent behind bars.
But since that verdict, officials at the Arkansas Department of Correction have all but tied themselves in knots, insisting that he cannot be released. I know this because Howard has granted his attorney permission to let me see his files.
At first, the ADC told reporters that Howard would not become eligible for parole until November 2017. The reason, they said, was that he had been held on death row and the department didn't award good time to prisoners on death row.
Howard's attorney, Patrick Benca, protested to Jim DePriest, the ADC's chief attorney, arguing that Howard was being doubly penalized. First, he'd had to endure those years in isolation on death row because of a state prosecuting attorney's misconduct. And now, the state was denying him "good time" credit for those years, even though Howard's death sentence had been vacated.
I, too, was asking the department to explain Howard's unique situation. On July 24, ADC spokesperson Cathy Frye offered a lengthy explanation of what she called this "highly unusual case" that I, frankly, could not understand.
At the end of the email, however, Frye offered that, due to new calculations, and if the parole board approved, Howard would be eligible for release on Feb. 26, 2016 — a date almost two years earlier than the one previously announced.
Benca still wasn't buying it. On Aug. 18 he submitted a Freedom of Information Act request for the ADC's internal correspondence regarding the new calculation. Benca told DePriest in an email:
"If Mr. Howard was incarcerated back in 1999 for second-degree murder, with the same exact entry dates, he would have been eligible for parole [in] a little less than 10 years ...
"This man is being punished additionally because he got a new trial and received a better sentence? He lived in a hole for almost 14 years and you are telling me he is only entitled to 244 days of good time credit?"
The correspondence revealed that DePriest had checked on and confirmed Howard's prison record. He'd written that Howard had received one disciplinary, but, at a hearing, had been found not guilty.
In June, DePriest had written: "Realizing I could be wrong (heaven knows), it appears to me that we have miscalculated his [parole eligibility] date and that he is going to be immediately eligible for parole."
Someone apparently convinced DePriest that he was indeed wrong, because on Aug. 24, DePriest told Benca that the department's options regarding Howard were limited by terms of the sentencing order submitted by the court where Howard was retried. Benca foresees a lawsuit.
I see madness — at best. Any sane (or fair) system would have released Howard by now. Even the department's own lawyer deemed him eligible for a hearing, at least. Yet, despite the government hullaballoo about how this state can't afford to hold prisoners indefinitely, the ADC has not managed to get even Howard out the door.
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