When the hammer came down on Marlin Lynn Brown, it came down hard - 495 years in prison, a sentence imposed in Pulaski County Circuit Court on Oct. 16.
Brown is 41. He can’t apply for parole until 2351, when he will be 379 years old. Which seems unlikely, based on common knowledge about the human life span.
And so this sentence is, in essence, a life sentence for the man known colloquially as the Hillcrest rapist.
The sentence - 495 years - was front and center in the headline when the news story was published Oct. 17. Even for those readers who didn’t get past the headline, the questions arise.
What’s the point? And how can this be?
This can be because state law allows sentences of extreme length. Explanation shortly.
As for the point, comes now John Wesley Hall, a Little Rock defense lawyer. He has seen this sort of thing before. In fact, he was the deputy prosecutor in the analogous case of the Quapaw Quarter rapist a generation ago. More about that later.
Hall points out that had Brown’s sentences for multiple convictions not been stacked, or run consecutively, he still would have had a lengthy sentence up to life.
“The rest of it,” Hall said, “was to send a message to rapers and pillagers.”
Who sends such messages? Juries and judges.
Let’s start at the more or less beginning.
Brown was a one-man outbreak of crime in 2001 and 2002. In the latter year he robbed a bank in Little Rock’s Heights neighborhood. For that transgression he was convicted in federal court and sentenced to 346 months, nearly 29 years. Brown was in federal prison in Texas when DNA matched him to four rapes committed in Hillcrest in 2001. The match happened in 2010.
Brown came to trial in the rape cases in October and was found guilty on all charges - one count of kidnapping, three counts of rape, three counts of aggravated robbery.
The stage was set for sentencing, but first let’s look at a document of the Arkansas Sentencing Commission. It includes a grid for sentencing standards, and rankings of the seriousness of offenses, both of which guide prosecutors and judges.
More importantly, for the average citizen anyway, the document explains the reasoning behind the state’s system of sentencing.
Sentencing standards were revised by the Legislature in 1993 to create equity in sentencing, and to provide similar sentences for similar offenders with similar criminal histories. The most serious sentences would be reserved for the most serious offenders.
A presumptive sentence would be determined on a grid with two dimensions: Offense seriousness and offender history. The presumptive sentence for a particular offense is a starting point for the sentencing process. But the sentencing guide adds: “The full statutory range of punishment is available for all cases.”
As it was for Marlin Lynn Brown. He was a violent offender with convictions for robbery and bank robbery. His current convictions for rape and kidnapping are Class Y felonies, among the most serious category of crimes in Arkansas.
The hammer, based on the guidelines, was poised. Brown could have been sentenced to 40 years to life, but jurors recommended the next toughest sentence available: 80 years each on the rape and robbery convictions, 40 years for kidnapping with an extra 15 years for using a gun. The judge, then, had a range of 80 years (all sentences concurrent) to 535 years (all sentences consecutive).
Here’s where Brown got a break from special Judge John Cole. The judge stacked up all the prison time, except the kidnapping, which ran concurrently to the other sentences. The result was 495 years, with parole eligibility after 70 percent of the sentence is complete. The 70 percent rule applies to those most serious, Class Y, felonies.
The decision to run the sentences concurrently or consecutively, or some combination of both, is at the discretion of the presiding judge, Gregg Parrish, executive director of the Arkansas Public Defender Commission, said. The presumption is concurrent sentences, he added, unless the judge specifies otherwise.
“Juries can recommend,” Parrish said, “but they are told their recommendations are not binding on the judge.”
“Judges have complete discretion on stacking them,” Hall said. “Some judges stack them as a matter of habit.”
Sometimes it’s better to cop a plea, Parrish said, especially for those crimes which “shock the conscience.”
“I’ve done some of my best work convincing clients not to go to trial,” he said.
Copping a plea might have been a solid strategy for Terry Allen Dowdy, convicted Nov. 15 of rape, second-degree assault and sexual indecency with a child.
The trial, in Paragould, inspired a jury of Greene County citizens to recommend to Circuit Judge Randy Philhours that Dowdy, 50, be sentenced to two life terms plus 78 years. The judge agreed.
Scott Ellington of Jonesboro is the prosecuting attorney for the Second Judicial District. He understands a defendant can only serve one life sentence.
“But I also understand that after hearing testimony over two and a half days of this reprehensible conduct the jury is outraged,” he said. “They are allowed to make that recommendation and that’s why they made it.
“They’re mad. They’re really mad at that point.”
Was this some kind of a message?
“I do think that’s exactly what’s going on,” Ellington said. “The jury is letting others know if they offend on a child the way Dowdy did, they’re more than happy to send them to prison for the rest of their lives.”
In fact, he said, if such a thing were constitutional as in the past, “juries would be happy to recommend a death sentence in some sex cases.”
Hall, the Little Rock defense lawyer, suggested another message, one sent from elected judges to the body politic.
“Judges are reluctant to disagree with a jury because they are the conscience of the community,” Hall said. “And since we still have an elected judiciary, that gives them political cover.”
Now, about the Quapaw Quarter rapist.
Otha Lee Conley was convicted of four counts of rape, three counts of burglary, kidnapping and aggravated robbery, all committed in the summer of 1978 in Little Rock’s Quapaw Quarter neighborhood.
So notorious was the case that Circuit Judge Floyd Lofton ordered the press not to refer to Conley as the “Quapaw Quarter rapist.” The Arkansas Gazette objected, litigated, and the Arkansas Supreme Court on May 27, 1980, overturned the order.
The First Amendment precluded such an order, the Supreme Court said, describing Lofton’s action as “a judicial censorship which is beyond the jurisdiction of this or any other court.”
Conley went into the state prison system on Feb. 13, 1979. He’d been sentenced to life plus 173 years.
Conley died in prison on May 17, 1982, of cardiac arrest at 32 years of age, the citizens of Arkansas having extracted from him a pound of flesh equal to three years and 89 days.
Style, Pages 29 on 12/10/2013