Arkansas Supreme Court affirms denial of inmate’s bid to force parole

The Arkansas Supreme Court on Sept. 25, 2025, affirmed a Pulaski County circuit court order denying Kenneth Burton permission to proceed in forma pauperis so he could pursue a writ of mandamus that sought to compel the Arkansas Post‑Prison Transfer Board to grant him parole. Associate Justice Nicholas J. Bronni wrote the court’s opinion affirming the lower court.

The court said Burton’s petition failed to plead a colorable cause of action, a prerequisite for in forma pauperis status under Arkansas law. That status would have allowed Burton to file a new civil action without prepaying court fees to seek a writ of mandamus directing the Board to grant parole.

Burton, who represented himself, is serving an aggregate 312‑month sentence from two 2015 convictions. In one case he pleaded guilty to second‑degree battery and received a 72‑month sentence; in the other he pleaded guilty to multiple offenses, including a terroristic act, possession of a firearm by certain persons, possession of a handgun on public‑school property, theft by receiving, endangering the welfare of a minor, and two counts of aggravated assault, together resulting in a consecutive 240‑month sentence. The opinion notes Burton has been denied parole four times since 2020 and that the Post‑Prison Transfer Board most recently denied parole on July 9, 2024, citing his institutional record and finding he would be a detriment to the community.

The court reviewed Arkansas law requiring that a petitioner show a “colorable cause of action” to proceed in forma pauperis, citing Morgan v. Kelley and Arkansas Rule of Civil Procedure 72. Burton argued that Ark. Code Ann. § 16‑93‑615(a)(1)(A) created an unequivocal right to parole because it provides that, except for inmates convicted of certain enumerated offenses, an inmate “shall be transferred” to parole “subject to rules promulgated by the Board of Corrections or the Post‑Prison Transfer Board and conditions adopted by the Post‑Prison Transfer Board.” The majority rejected that reading and concluded the statute does not strip the Board of discretion.

The court pointed to the statute’s subsequent sentence directing the Board to conduct a “risk‑needs assessment” and decide whether an inmate is likely to reoffend and, “if parole is granted,” to set conditions, concluding those provisions are inconsistent with an interpretation that parole is automatic. The opinion relied on statutory‑interpretation principles and Arkansas precedents to hold Burton’s legal theory failed as a matter of law; because the petition did not present a plausible legal claim, the circuit court did not abuse its discretion in denying in forma pauperis status and the Supreme Court affirmed.

Justice Shawn A. Womack filed a dissent. In his dissent, Womack wrote that dismissal would be proper under article 5, section 20 of the Arkansas Constitution because, he said, the State cannot properly be a defendant in a standalone civil action absent an express constitutional provision to the contrary. Womack argued Burton improperly brought a new civil action (case no. 60CV‑24‑6968) rather than seeking relief within Burton’s related criminal cases (35CR‑14‑164 or 35CR‑15‑85) and concluded the court lacks jurisdiction; he would have reversed and dismissed the case.

Burton is listed in the opinion as the pro se appellant. The opinion notes the appellee was represented by Arkansas Attorney General Tim Griffin, through Assistant Attorney General Walker K. Hawkins. The circuit judge below was Mackie M. Pierce of Pulaski County Circuit Court, Seventeenth Division.

The court’s decision leaves in place the lower court’s denial of in forma pauperis status and does not order the Post‑Prison Transfer Board to grant parole. The opinion is captioned Kenneth Burton v. Arkansas Post‑Prison Transfer Board, No. CV‑24‑779, and is reported as 2025 Ark. 141.