Summary
In Bruton, we held that the statute gave the State Penitentiary Board the authority to enact a penal statute, which is far different than the discretion that the MEA gives the Director to carry out a punishment, death, that the legislature has set forth in the manner that the legislature has set forth, by lethal injection.
Summary of this case from Hobbs v. JonesOpinion
No. 5-5372 and 5-5373
Opinion Delivered March 3, 1969.
1. CONSTITUTIONAL LAW — LEGISLATIVE POWERS, DELEGATION OF — ENACTMENT OF PENAL STATUTES. — Enactment of penal statutes, always strictly construed, is a function of the legislative branch of State government. 2. CONSTITUTIONAL LAW — LEGISLATIVE POWERS, DELEGATION OF — ENACTMENT OF PENAL STATUTE. — Ark. Stat. Ann. 46-158 permitting State Penitentiary Board in its sole discretion to prescribe for its employees limits of conduct which would constitute a felony, which had the effect of authorizing an administrative body to impose criminal liability upon penitentiary employees based upon rules fixed by it, held an unconstitutional delegation of legislative authority.
Appeal from Jefferson Circuit Court; Henry W. Smith, Judge; affirmed.
Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellant.
Reinberger, Eilbott, Smith Staten for appellees (Bruton Wilson); Douglas Bradley Hartman Hatz for appellee (Fletcher).
Appellees, employees of the Arkansas penitentiary, were charges by information in two cases with administering excessive punishment to prisoners in October 1964 and January 1965 in violation of Arkansas Statutes 46-158. The appellees filed a demurrer and motion to dismiss, alleging that the statute was void because of an unconstitutional delegation of legislative power. The trial court agreed and dismissed the cases and the state brings these appeals.
The issue in these cases is simply whether appellees were charged with a crime under a valid Arkansas penal statute. We are not asked to consider whether the use or the strap in the penitentiaries of Arkansas is cruel or unusual punishment prohibited by Article 2, Section 9 of the Arkansas Constitution. This point was recently before the Eighth Circuit in Jackson v. Bishop, 404 F.2d 571 (1968), which held use of the strap to be in violation of the Eighth Amendment to the Constitution of the United States. Neither do we consider here whether appellees might have been charged with a crime under some penal statute other than Section 46-158.
This law was enacted in 1893 as Section 62 of Act 76, which was a comprehensive measure providing for the management of the penitentiary. The constitutionality of this section has not been previously tested. It provides as follows:
"The board [State Penitentiary Board] shall prescribe the mode and extent of punishment to be inflicted on convicts for the violation of the prison rules; and any superintendent, subordinate officer of guard having in his charge any convicts who shall himself, or who shall cause any other person to inflict on any convict any greater or more severe punishment that is prescribed by said board, said superintendent, subordinate officer of guard shall be deemed guilty of a felony, and on conviction thereof shall be confined in the penitentiary for not less that one (1) nor more that five (5) years; and if death ensued from said punishment, he and his aiders and abettors shall be guilty of murder or manslaughter as the case may be."
This statute has no guidelines. It permits the State Penitentiary Board in its sole discretion to prescribe for its employees the limits of conduct which would constitute a felony. In the absence of an adequate yardstick for the guidance of the board, it could set minimums or extremes of punishment without restraint. The effect of this is to authorize an administrative body to impose criminal liability upon penitentiary employees based upon rules fixed by it. Enactment of the legislative branch of our state government.
We hold that Arkansas Statute 46-158 is an unconstitutional delegation of legislative power. Walden v. Hart, 243 Ark. 650, 420 S.W.2d 868 (1967).
Affirmed.
HARRIS, C.J., disqualified.
HOLT, J., not participating.