Circuit Judge Wendell Griffen just doesn’t operate in the shadows.

Today he has distributed a letter to Gov. Mike Beebe objecting to plans to spend state money on new prison facilities.


He contends the War on Drugs has stacked prisons with non-violent offenders. Wrote Griffien:

Arkansas does not have a prison overcrowding problem because of a dramatic increase in violent offenders. We have a prison overcrowding problem because of the “War on Drugs.”

It is foolish to believe that cancer, AIDS, and other life-threatening diseases will be reduced and cured by building mortuaries and cemeteries and hiring funeral directors and grave diggers. The January 23 decision of the Board of Corrections represents similar folly. That is why I urge you to stop the Board’s plans and impose a moratorium on new prison construction in Arkansas.

Coincidentally, I received a copy of a court filing in which Judge Griffen is more or less indirectly accused of contributing to prison crowding by virtue of what he calls a “dog bite rule.” According to the pleading, the judge rejects all plea bargains, typically with lesser sentences than conviction might bring, for a violent offense on which a felony charge was brought. In the case at issue, Griffen would insist on a prison sentence on conviction for someone prepared to take probation.


Deputy Public Defender Mac Carder, representing Mashieka Murphy, objected to Griffen’s refusal to accept a plea bargain calling for a probationary sentence in a battery case.

He wrote:


The Court’s application of its “my dog bite rule” policy of not considering alternative sanctions – where they are either presumed or available – based only upon the title or category of the charged offense, violates the fundamental rights of Due Process of Law under the Fourteenth Amendment to the United States Constitution of not only Defendant Murphy but of all defendants appearing before this Honorable Court who are subject to this Court’s stated policy ….

Carder argued it was an abuse of discretion for the judge to refuse a bargain without hearing any basis for it. Carder’s request for Griffen to discontinue the “rigid and arbitrary” practice quotes concerns from the prosecutor’s office.

MS. ABBOTT: Your Honor, just from the State’s perspective, I think the State’s concern on the Court’s stance on the D felonies is that the creating of a black letter rule on this – and, as you know, in prosecuting these cases, we have to take them on a case-by-case basis with what the facts are and there is a wide range of things that can fall into the category of a D felony battery second.
And I think it might be a little bit, from the State’s perspective, premature to say that on no – there is no battery second that will ever be a candidate for probation when what you’re actually saying is that in every D felony battery second, you are going to put the defense in a perspective to where they know that, without hearing the facts of the case, without hearing the allegations, you are telling the defendants that you are always going to do an upward departure from the sentencing guidelines.

More to come on this, undoubtedly, as the request moves through the system. The dog bite rule, or “country dog bite rule,” isn’t explained as to origin in the pleading, but Carder said it apparently arose in rural Pike County.

Carder argues that Griffen should end his rule or disqualify from all cases in which he’d apply it because it infringes on fair trial rights for defendants. Because Griffen wouldn’t withdraw, Carder withdrew the plea bargain request and asked for a jury trial.