Arkansas Code of 1987 (2023) › Title 5 - CRIMINAL OFFENSES (§§ 5-1-101 — 5-79-101) › Subtitle 1 - GENERAL PROVISIONS (§§ 5-1-101 — 5-5-501) › Chapter 4 - DISPOSITION OF OFFENDERS (§§ 5-4-101 — 5-4-913) › Subchapter 4 - IMPRISONMENT (§§ 5-4-401 — 5-4-405) › Section 5-4-405 - Delayed release for certain offenders

(a)
As used in this section:
(1)
"Aggravating circumstance" means a defendant purposely selected the victim because the victim was a member of or was associated with a recognizable and identifiable group or class who share mental, physical, biological, cultural, political, or religious beliefs or characteristics;
(2)
"Delayed release" means that a person who receives a sentence of imprisonment is not eligible for parole unless the person has served at least eighty percent (80%) of his or her sentence;
(3)
"Purposely selected the victim" does not mean that a defendant's mere abstract belief or expression was hostile or contrary to the victim's being a member of or was associated with a recognizable and identifiable group or class who share mental, physical, biological, cultural, political, or religious beliefs or characteristics; and
(4)
"Serious felony involving violence" means:
(A)
Murder in the first degree, §
5-10-102
;
(B)
Murder in the second degree, §
5-10-103
;
(C)
Battery in the first degree, §
5-13-201
;
(D)
Aggravated assault, §
5-13-204
;
(E)
Terroristic threatening, §
5-13-301
, if a felony offense;
(F)
Terroristic act, §
5-13-310
;
(G)
Arson, §
5-38-301
;
(H)
Unlawful discharge of a firearm from a vehicle, §
5-74-107
; and
(I)
An attempt, a solicitation, or a conspiracy to commit an offense listed in this subdivision (a)(4) if the attempt, solicitation, or conspiracy itself is a felony.
(b)
(1)
(A)
A person who commits a serious felony involving violence is subject to delayed release if the state proves beyond a reasonable doubt that the person committed a serious felony involving violence under an aggravating circumstance.
(B)
In order to seek delayed release under this section, the state shall set out the allegation in the indictment, in the information, or in a separate filing.
(2)
If the finder of fact is the circuit court, the state may present evidence of an aggravating circumstance during its case-in-chief, and if the circuit court finds the person guilty and sentences the person to a term of imprisonment, the circuit court shall make the determination as to whether the state proved beyond a reasonable doubt that the person committed a serious felony involving violence under an aggravating circumstance and sentence the person accordingly.
(3)
(A)
If the finder of fact is a jury, the jury shall first hear all evidence relevant to the serious felony involving violence with which the person is charged and shall retire to reach a verdict of guilt or innocence on the charge.
(B)
If the person is found guilty of the serious felony involving violence, the circuit court shall then instruct the jury that the state seeks a sentence of imprisonment that would provide for delayed release.
(C)
The state may then offer additional evidence and argument that one (1) or more aggravating circumstances existed, which the person may rebut with his or her own evidence and argument.
(D)
The jury shall retire again and then determine a sentence and, if the sentence includes a term of imprisonment, a finding as to whether the person is subject to delayed release.
(c)
This section does not:
(1)
Interfere with the exercise of rights protected by the United States Constitution or the Arkansas Constitution, including without limitation the right of clergy to express religious beliefs during a religious service or ceremony;
(2)
Serve as a basis to create a protected classification or prohibit discrimination under the Intrastate Commerce Improvement Act, §
14-1-401
et seq.; or
(3)
Expand or contract the protections afforded by the Arkansas Civil Rights Act of 1993, §
16-123-101
et seq.
(d)
This section shall not be altered, broadened, or narrowed through federal or state executive action.
Added by Act 2021, No. 681,§ 1, eff. 7/28/2021.