Interesting question | Arkansas Blog

Wednesday, November 26, 2008

Interesting question

Posted By on Wed, Nov 26, 2008 at 9:06 AM

A prosecutor in another jurisdiction asks for an attorney general's opinion on a matter of high interest in Pulaski County. It concerns the legality of judges imposing fees not authorized by statute payable to outside funds and agencies. That, of course, is what Judge Willard Proctor continues to do with the Cycle Breakers probation program he started and which has been focus of a critical state audit, a federal probe and an investigation by the state Judicial Discipline and Disabilty Commission. Because of the last investigation, the a.g. declined to issue an opinion.


Boyce, Henry H

Pros Att'y, 3rd Judicial District

Opinion:  In a criminal case, must a circuit judge, or any other judge, have state statutory authority to  impose fines, costs, sentences, fees, restitution, contributions, or any other penalties?  Q2) In a criminal case, is a circuit judge, or other judge, limited to the amounts of fines, costs, sentences, fees, restitution, contributions, or any other penalties provided by law?  Q3) In a criminal case, may a circuit judge order moneys to be paid in lieu of fines, costs, sentences, fees, restitution, contributions, or any other penalties or assessments to be paid into a separate bank account maintained by the circuit judge, prosecuting attorney, sheriff, or other official?  Q4) Does a circuit judge have the authority to approve a plea bargain arrangement where, as a condition of probation or a reduced sentence, the defendant must make a  "contribution" to a drug control fund or other cash fund?  Q5) In a criminal case, is there any authority for a judge to require the payment of a "contribution?" 

RESPONSE: I must  respectfully decline to address your questions because of this office's long-standing policy  against issuing opinions on matters that are the subject of pending or impending litigation or  an ongoing administrative proceeding. This policy has consistently been applied to matters pending before both administrative agencies and the courts. E.g., Ops. Att'y Gen. 2008-081, 99-139, 96-137, 90-114. Your questions are implicated in the ongoing proceedings of the Judicial Discipline and Disability Commission against Circuit Judge Willard Proctor. Therefore, I am unable to answer your questions.


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