Dereck Pelletier v. Wendy Kelley, Director, Arkansas Department of Correction, et al.

A citizen of another state received a three-hundredyear sentence for sending, in one transaction, a single computer file containing thirty (30) images of child pornography to a law enforcement officer in Arkansas. The citizen plead guilty to thirty (30) counts of violating an Arkansas statute prohibiting the transfer of “any photograph . . . [or] computer program or file” that depicts child pornography. Ark. Code Ann. § 5-27- 602(a)(1). The Arkansas Supreme Court held, breaking with nine state supreme courts and its own judicial precedent interpreting similarly worded statutes that a conviction and sentence for each item of contraband transferred did not violate the Fifth Amendment. The questions presented are:

1. Whether a state supreme court can overcome a defendant’s multiplicity challenge under the Double Jeopardy Clause of the Fifth Amendment by classifying a statute as unambiguous without utilizing the cannons of statutory construction; and

2. Whether an unforeseeable judicial enlargement of a criminal statute’s unit of prosecution violates due process under the Fifth and Fourteenth Amendments when applied retroactively.