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Senator Ward’s SB84 on Habitual Offenders Act Catches Serious Criticism

Lee Hedgepeth

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By Lee Hedgepeth
Alabama Political Reporter

A bill by Senator Cam Ward pre-filed in preparation for the upcoming state legislative session, which begins tomorrow, is currently facing serious criticism from Democrats in the legislature as well as nonprofit justice advocacy groups.

Senate Bill 84, sponsored by the 14th District Republican, would repeal an amendment to the Habitual Offender Act, Alabama’s version of the three strikes law, that held retroactive an earlier provision allowing for the appeal of life without parole mandatory sentences for nonviolent offenders. While it may sound complex, given relevant context, the particulars of SB84 are simple.

The Habitual Offenders Act, 1977

Following at the footsteps of Texas, which passed similar legislation in 1974, Alabama in 1977 passed what is known as the Habitual Offenders Act. It provided – without exception –that those who had been convicted of three felony crimes were to be sentenced to certain mandatory minimum sentences, with the desired effect of reducing recidivism by being “tough on crime.” In cases where the fourth offense, for example, was a Class A felony where the usual sentence would be 10-99 years with the automatic possibility of parole, the new mandatory minimum assessed for the crime would be life in prison with no possibility of parole; for a Class B fourth offense, a mandatory of life with the possibility of parole would be the minimum sentence.

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Under that scheme, sentence averages in Alabama exploded, and incarceration rates among the general population did, too. In 1977, only 1.5 percent of Alabamians were incarcerated; today, .65 percent of Alabamians are living at taxpayer expense in prisons and jails across the state. There are more inmates in state correctional facilities today solely under the Habitual Offenders Act, around 8,000, than there were in 1977 for any crime at all, approximately 5,500.

Incarceration rates from 1977 are from the Equal Justice Initiative:
http://www.eji.org/files/Prison%20Crisis.pdf

Incarceration rates from today are from the Alabama Department of Corrections, realtime: http://www.doc.state.al.us/InmateSearch.aspx

All overall population information comes from the US Census Bureau’s statistics, available here: https://www.google.com/#q=alabama+population

Examples of egregious prosecutions under the law gained national fame. Jerald Sanders, who had stolen a $16 bicycle from a back porch of a home in northern Alabama, received a life without parole sentence because of drug convictions decades earlier. Lydia Diane Jones was also sentenced to life without parole for drug charges involving marijuana and cocaine that were found in a home occupied by her ex-boyfriend; she had come to the house to gather clothes she had left behind. Her prior convictions included charges stemming from using a forged check for food at a local grocery store.

Amendments to the Habitual Offenders Act

Realizing the impact of the wide net the law was casting over nonviolent offenders as well as hardened criminals, many in the Alabama Legislature supported, and eventually passed, an amendment to the 1977 law that provided “consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

In 2001, at the support of now passed civil rights leader and Democratic Representative Demetrius Newton, and upon realizing the backlog of nonviolent offenders convicted prior to the amendment, the Alabama Legislature passed a bill that allowed application for those with convictions before 2000. In effect, all nonviolent inmates would be able to call for reconsideration of their sentencing under the new version of law. According to the legislators who passed the bill, the express purpose of the amendment was to “to provide further for eligibility for parole consideration of non-violent offenders.”

Amendment Application

The passage of the amendments, however, did not immediately lead to the release of any inmates or any considerations of parole. Immediately after the amendment’s passage, then-Governor Don Siegelman issued an executive order directing the Department of Correction and the Parole Board to make such regulations as would be necessary to implement the changes. Despite this, the agencies refused, questioning the constitutional validity of the new provisions and denying their implementation them without a judicial clarification.

Kirby v. State of Alabama, 2004

It would take years for that clarification, but it would come in the form of an opinion of the Supreme Court of Alabama in August of 2004. Junior Mack Kirby, who had been prosecuted under the act prior to 2000, sought relief from Alabama’s highest court, claiming that the new provisions were constitutional and that his request for a new sentence hearing must move forward. In a unanimous Ex Parte opinion, then-Chief Justice Drayton Nabers said that “[The new provision] provides that an inmate may ask the sentencing judge or the presiding judge for relief from a previous sentence imposed pursuant to the [Habitual Offenders Act] and provides that the court is to consider the evaluation of the DOC in considering the inmate’s motion. [It also] clearly confers jurisdiction on the sentencing judge or the presiding judge by giving that judge the power to apply the provisions… retroactively to ‘nonviolent convicted offenders’ and by providing the procedure by which the provisions of the statute are to be applied.”

No longer could Alabama bar eligible inmates from applying for reconsideration of their sentences under the act, even if any changes were to be made solely at the discretion of trial judges.

Recent Changes

In 2012, the Alabama Legislature went a step further. In light of ever increasing prison costs and populations, a bill was passed making sentencing guidelines such as those in the amendments presumptive in most cases, taking most discretion away from the judge, and requiring a deference to liberty interests for nonviolent fourth time offenders.

At the time of its passage, Madison County District Attorney Rob Broussard explained his motives to the Alabama Media Group, saying that although in a perfect world all prosecutors could be ‘tough on crime:’

“In the practical, budget-driven world, we understand why we have [these presumptive guidelines]. In this state, as in a lot of jurisdictions, we can about talk justice and what something is worth until we’re blue in the face, unfortunately it’s a money game.Do you have the space to house criminals or not?”

Senator Cam Ward also commented on the then newly-released guidelines:

“Nobody in this process is soft on crime, we’re trying to be smarter about it. Our prisons are at 193 percent of capacity and we spend less than any other state in the country. We’re going to get sued in federal court and they are going to come in and impose a harsh penalty. The problem is, under the current system, we basically have people concerned more with politics than actual results. Sometimes they want to impose sentences that may not fit the crime.”

District Attorney Broussard and Senator Ward’s statements on the topic were in line with what policy experts did – and do – point to as good incarceration policies. 2014’s Alabama Sentencing Commission’s sentencing guidelines say that “…sentencing standards shall take into account and include statewide historically based sentence ranges, including all applicable statutory minimums and sentence enhancement provisions, including the Habitual Felony Offender Act, with adjustments made to reflect current sentencing policies.” The “current policies” referred to are those allowing for reconsideration of nonviolent offender sentences.

With the announcement of his SB84 for the upcoming session, however, it seems policy groups and many state politicians are now at very far odds with Senator Ward’s views, at least on this legislation.

Senate Bill 84 and a War of Ideas

Senate Bill 84, which would repeal the 2001 retroactivity amendment pushed by then Speaker-Pro Tem Demetrius Newton, has some in the justice advocacy community at arms, especially in light of statements by legislators like Ward that show they truly understand the question.

“I sound like broken record but [I] still believe our prison sys[tem] is [the] greatest threat to state budgets,” Senator Ward recently tweeted, “[Throwing] more money at [the prison] sys[tem] not [the] solution. Changing the system is. Keep[ing] violent folks locked up and more alt[ernative] sentencing for non-violent ones is.”

Many groups opposing Ward’s SB84 say the bill would prevent just that. In an APR exclusive, founder and executive director of Montgomery-based nonprofit the Equal Justice Initiative Bryan Stevenson discussed the issue of HB84.

“Alabama legislators have acknowledged and discussed the fact that our overcrowded prisons and runaway spending on unnecessary incarceration has to end,” Stevenson said. “This bill is a step in the wrong direction. We should be seeking ways to expand release opportunities for non-violent offenders, not passing laws to keep them in prison longer.”

As Senator Cam Ward correctly pointed out, Alabama’s correctional facilities are at nearly double their capacity, with over 33,000 inmates housed in accommodations made for under 20,000.

“We cannot seriously address the critical problems facing Alabama’s prisons and prison spending without courageous leadership,” the Harvard grad and NYU professor pointed out. “This proposal does not address the very serious problems that need to be confronted. It’s another unfortunate effort at being tough rather than smart on crime.”

Senator Cam Ward has pushed back, saying that he introduced the bill with bipartisan support last session, and is was voted out of the Judiciary committee unanimously, with bipartisan support. He also says that the Alabama Court of Appeals supports the legislation, and that it will save the courts money.

Representative Darrio Melton (D) has also joined in the debate. “When we talk about repeat, nonviolent offenders,” the Selma native told APR, “we should be looking at rehabilitation and address the root causes that lead to this activity. Senator Ward wants to reform Alabama prisons and reduce operating costs, but this law would cause more people to remain behind bars. Instead of locking people up, let’s look at the underlying factors, such as poverty-level wages, a broken educational system and damaged families and communities. Let’s work to fix the state to prevent crime and rehabilitate offenders.”

Senator Ward, a member of the Shelby County delegation, has also pointed out that the legislation would not apply to those cases already in litigation, or cases after the 2000 amendment. In addition, he says that it will involve no increase in prisoner population, and that it only currently involves 82 cases.

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Republican Senator Cam Ward has represented the 14th district since 2010, before which he represented it in the House of Representatives for multiple terms.

Democratic Chief Justice Drayton Nabers, author of Kirby v. State of Alabama recently accepted a position as the head of Samford University’s new ethics institute.

Representative Darrio Melton was elected to represent the 67th district in 2010. He has pre-filed legislation that would increase the minimum wage in Alabama.

Bryan Stevenson is the founder and director of Montgomery-based nonprofit Equal Justice Initiative, which represents indigent death row inmates. He is a Harvard and Yale University lecturer, and a law professor at New York University.

APR contacted all Democratic members of the Judiciary committee from last session. Only Representative England has responded, and he has not yet let us know his full position.

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Motion seeks donors info from Bentley’s “girlfriend fund”

Bill Britt

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A motion to compel disgraced former Gov. Robert Bentley to provide donors and contributions to the political nonprofit that paid his girlfriend was filed in Montgomery Circuit Court on Monday in the wrongful termination suit brought by former Alabama Law Enforcement Agency Secretary Spencer Collier.

Collier is seeking information on donations to ACEGOV a 501(c)(4) set-up to promote Bentley’s political agenda by then-General Counsel Cooper Shattuck in February 2015.

One prominent question is whether donations to ACEGOV were intended to influence the state’s felony case against Speaker of the House Mike Hubbard.

Collier was fired from his position at ALEA after he refused to lie to prosecutors in the Hubbard case as Bentley had ordered him to do.

The germ of Collier’s firing grew out of actions taken by Hubbard’s attorney Lance Bell who  in January 2016 contacted ALEA to arrange for attorney and radio host Baron Coleman to issue a complaint accusing prosecutor Matt Hart of leaking grand jury information. Bell’s actions are recounted in an affidavit by Hall Taylor current ALEA Secretary. The matter was dismissed by Hubbard’s trial judge Jacob Walker III.

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Among ACEGOV expenditures was a payment of  $2,500 per month plus expenses to Bentley’s paramour, Rebekah Caldwell Mason’s, company, RCM Communications, Inc., who is also a defendant in Collier’s lawsuit. Bentley testified that Mason was also being paid through his 2014 Campaign, even two years after the election.

In Montgomery, ACEGOV was widely known as the “girlfriend fund,” because it was used to pay Bentley’s former special advisor, Mason.

“The fact that a portion of these contributions were used by ACEGOV to pay Bentley’s girlfriend, a co-defendant in this case, is clearly relevant to this case,” states Collier’s motion. “The requested information goes directly to the pattern and practice claims, the potential bias between Bentley and Mason and punitive damages.”

Collier argues he is entitled to know if any money funneled to Mason through ACEGOV came from Hubbard supporters, which would go to Bentley’s motive to destroy him.

In essence, it’s believed that ACEGOV was a honey hole to curry favors with Bentley who then may have acted to benefit donors.

In a recent deposition, Bentley admitted that he solicited contributions to ACECOV from various people. However, other than Franklin Haney, “Bentley refused to identify any other donor or the amount of donations claiming the information was somehow privileged because ACEGOV is a 501(c)(4), according to Collier’s motion.

Haney reportedly contributed $300,000 to Bentley after the 2014 election. Bentley later encouraged the TVA and others to sell the Bellefonte Nuclear Power Plant in northeast Alabama to Haney.

Collier is not asking for records from ACECOV; he is merely asking that Bentley be compelled to testify to his personal knowledge about donors and contributions he solicited for the non-profit.

“Bentley was not an incorporator of ACEGOV, was never on its Board and never represented the 501(c)(4) in an official capacity,” according to Collier’s motion.

This motion to compel is the latest in a round of legal wrangling where the state has paid upwards of $300,000 to defend Bentley.

Gov. Kay Ivey in campaign advertisements says she cleaned up Bentley’s mess. However, her administration has done nothing to end the lawsuits which resulted from Bentley’s failed tenure as governor.

 

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Ivey reports successful first year for “Strong Start, Strong Finish” education initiative

Brandon Moseley

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Monday Alabama Governor Kay Ivey (R) reported progress on her Strong Start, Strong Finish (SSSF) education initiative that she announced on July 26, 2017.

Governor Ivey launched Strong Start, Strong Finish to integrate Alabama’s early childhood education, K-12 education and workforce development efforts into a seamless educational journey. SSSF is composed of three major strategies: Pre through Three; Computer Science for Alabama (CS4AL); and Advanced Training, Better Jobs.

The Pre through Three initiative focuses on ensuring the Alabama First Class Pre-K program is available to all families who choose to participate and ensuring that all of Alabama’s third graders are proficient readers by 2022.

CS4AL will ensure that a computer science course is offered at all of Alabama’s middle and high schools by 2022.

Advanced Training, Better Jobs will prepare 500,000 more Alabamians to enter the workforce with high-quality postsecondary degrees, certificates or credentials by 2025.

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Over the past year, Governor Ivey has secured progress toward each of her ambitious SSSF goals in the following ways.

Governor Ivey reports that under her leadership, investment in First Class Pre-K has grown in one year from $77.5 to $96 million. The $18.5 million increase in 2018 was the largest ever single-year increase in program funding approved by the Legislature.

Jn the 2018-2019 school year, First Class Pre-K will officially break the 1,000 classroom mark for the first time with 1,040 classrooms serving 18,720 four-year-olds, which will reach 35 percent of the eligible four-year-old population.

In December 2017, Governor Ivey announced that Alabama received a $1.5 million grant from the W.K. Kellogg Foundation to support the launch of the Pre-K-3rd Grade Integrated Approach to Early Learning pilot program (“P-3”), starting with 35 classrooms in 2017-2018. The program will grow to 75 classrooms in the upcoming 2018-2019 school year.

Gov. Ivey empaneled a diverse, 100-member Executive Team to assist in establishing 11 regional councils that will recruit a host of local campaigns for grade-level reading. The Executive Team met for the first time in June 2018, and the team will begin establishing the regional councils and recruiting local campaigns during the fall of 2018.

During the 2018 Legislative Session, Ivey secured a $4 million increase for the Alabama Reading Initiative (ARI), which will be used to refocus ARI on grades K-3 and to reinforce the gains produced by the First Class Pre-K program.

During the summer of 2018, Ivey established the Alabama Summer Achievement Program (ASAP) for students who are reading below grade level proficiency in grades 1, 2, and 3. Governor Ivey created an ASAP pilot program at four elementary schools in Montgomery County, serving hundreds of children, with plans for expansion in the summer of 2019.

In 2016, only 86 schools in Alabama offered a high-quality computer science course. Today, more than 175 Alabama high schools offer such classes. In September 2017, Governor Ivey established the Governor’s Advisory Council for Computer Science Education.

In March 2018, Governor Ivey and the Alabama State Board of Education approved the Alabama Digital Literacy and Computer Science Course of Study and Standards. Currently, only 10 other states in the nation have computer science standards.

Gov. Ivey also worked to secure $300,000 for computer science professional development for middle and high school teachers, during the 2018 Legislative Session.

On April 2, 2018, Governor Ivey championed and signed legislation creating the Alabama School of Cyber Technology and Engineering.

Based in Huntsville and scheduled to open during the fall of 2020, the school will be a destination magnet school that will also serve as the hub for computer science professional development in Alabama.

On April 30, 2018, the Attainment Committee issued the Success Plus Plan for post-secondary attainment. Based on those recommendations, Governor Ivey set the statewide post-secondary attainment goal of adding 500,000 highly-skilled Alabamians to the workforce by 2025.
To achieve that goal, and in light of the recent reauthorization by Congress of the Carl D. Perkins Career and Technical Education Act, Governor Ivey is working to increase the efficiency of our workforce development programs to meet Alabama’s growing economic demands and to incentivize more private-sector partners to offer apprenticeships.

The Jobs for Alabama’s Graduates (JAG) program has grown from 23 to 29 programs in 2018 alone. Ivey worked to secure a $250,000 increase in the state appropriation for JAG, which provided funds for four new programs in Tuscaloosa, Morgan County, Madison County and Wilcox County. Governor Ivey also utilized federal Workforce Innovation and Opportunity Act (WIOA) monies to establish two additional JAG programs in Geneva County and Montgomery County.

Governor Ivey said that she is happy with the progress thus far, but plans to further work toward these goals and continue to strive for improvement in Alabama’s education system.

Gov. Ivey inherited one of the worst educational systems in the country. Gov. Robert Bentley (R) admitted to the state’s economic development association that: “Our schools suck.” But struggled to roll out a plan to change that. Ivey is a former educator who has worked in the classroom.

Upon being elevated to Governor on April 2017, Ivey has prioritized improving education in the state and upgrading the state’s workforce development.

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Kavanaugh decision dominates Doug Jones town hall

Brandon Moseley

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U.S. Senator Doug Jones (D-Alabama) held his second town hall as a U.S. Senator at Birmingham’s historic Parker High School.

Jones was elected largely due to the enormous turnout among Black voters.

“It was because of the incredible work that you did that I am here as the first Democratic Senator to represent Alabama in 25 years,” Jones told the crowd.

“I want to be able to listen,” Jones said. “Some of you have questions and some of you have comments.”

Many of the comments and questions were about how Jones would vote on the confirmation of Donald J. Trump’s (R) U.S. Supreme Court appointee, Brett Kavanaugh.

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Kavanaugh would fill the seat of Justice Anthony Kennedy who retired this summer. Kennedy was often the swing vote between the four strict constructionist Justices and the four liberal Justices.

“I am doing a lot of work on the Supreme Court nominee,” Jones said. “He will be there for life twenty, thirty years, maybe more, we do not know.”

Jones said that it is the job of the Senate to advise and consent on judicial appointments and that he takes that responsibility very seriously.

Jones said that the Judiciary should be independent of politics. “He (the President) is not supposed to have a team on the judiciary.”

Jones asked what was the vote when Justice Antonin Scalia was confirmed. 98 to 0.

On Judge Kavanaugh’s confirmation hearings, Jones said that the Senate is looking at all of his opinions, including his dissents as well as his work for the Bush presidency and his work with the Whitewater Investigation. The archives have said that even some of what Chairman Grassley (R-Iowa) has requested won’t be ready until October.

“Candidly I am disappointed that we are moving so quickly on a hearing,” Sen. Jones said. “Unfortunately the Democrats do not control the calendar.”

“I am going to do an independent review,” Jones said. “I thought I could get through 2018 without seeing another Doug Jones commercial.”
Jones said that the people who paid for the TV commercials to influence his vote have wasted their money.

A vocal Kavanaugh opponent holding a large heart shaped pillow interrupted the Senator.

“We love you, but you have enough information. Vote NO,” she screamed. After the woman would not calm down or stop repeating herself she was removed from the venue.

“I am going to look at all of the information so I will be able to justify my opinion,” Sen. Jones said. Jones acknowledged that a lot of people were going to be upset no matter how he decided.

One citizen asked Jones how he could consider confirming Kavanaugh after decisions he made against the Affordable Care Act.

“I will answer that question after I meet with him,” Sen. Jones said. “Everything about his record is fair game.”

“I have read a number of his opinions, not all of them yet,” Jones said. “I am not prepared to say what I am going to do on Kavanaugh or give any indication of what I am going to do. I have reached out to meet with him as soon as those hearings are done.”

One man said that the majority of Alabamians support the confirmation of Kavanaugh. How could you vote different that the majority of Alabamians?

“I am going to exercise an independent view,” Jones said. “Most of those constituent views are based on 30 second TV ads.” “My vote is going to be based on what I believe. I am going to be an independent voice for Alabama and that is what I intend to do come Hell or highwater.”

Doug Jones was elected in a special election on December 12. Jones is a former U.S. Attorney for the Northern District of Alabama. He has practiced law in Birmingham for 15 years after leaving the Justice Department.

The Senate Judiciary Committee will be holding hearings on Kavanaugh’s confirmation in September.

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Elections

Sewell, Gowdy, others introduce bill to strengthen election infrastructure against cyberattacks

Brandon Moseley

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Friday, four members of the House Permanent Select Committee on Intelligence (HPSCI) introduced the Secure Elections Act, which would provide local communities and state governments with the resources needed to strengthen election systems against cyberattacks.

The bill was introduced by Reps. Tom Rooney (R-Florida), Terri Sewell (D-Selma), Trey Gowdy (R-South Carolina), and Jim Himes (D-Connecticut). All four of them have played a role in the HPSCI investigation into alleged Russian meddling in the 2016 election.

“Our democracy is our nation’s greatest asset and it is our job to protect its integrity,” said Rep. Sewell. “We know from our Intelligence Community that Russian entities launched cyberattacks against our election infrastructure in 2016, exploiting at least 21 state election systems. As the 2018 elections approach, action is urgently needed to protect our democracy against another attack. Today’s bipartisan bill takes a huge step forward by providing election officials with the resources and information they need to keep our democracy safe.”

“Although the Russian government didn’t change the outcome of the 2016 election, they certainly interfered with the intention of sowing discord and undermining Americans’ faith in our democratic process,” Rep. Rooney said. “There’s no doubt in my mind they will continue to meddle in our elections this year and in the future.”

The sponsors say that the Secure Elections Act would allow states and local jurisdictions to voluntarily apply for grants to replace outdated voting machines and modernize their elections systems. The bill also streamlines the process the federal government uses to share relevant cybersecurity threat information with state and local governments.

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The Senate version of the Secure Elections Act was introduced in March by Sens. James Lankford (R-Oklahoma) and Amy Klobuchar (D-Minnesota).

Sen. Lankford addressed the U.S. Senate on the Secure Elections Act.

“We have to be able to have better communication between the federal government and states, a better cybersecurity system, and the ability to be able to audit that,” Lankford said. “That is why Senator Klobuchar and I have worked for months on a piece of legislation called the Secure Elections Act. That piece of legislation has worked its way through every state looking at it and their election authorities. We’ve worked it through multiple committee hearings. In fact, recently just in the last month, two different hearings with the Rules Committee. It is now ready to be marked up and finalized to try to bring to this body.”

“I have zero doubt the Russians tried to destabilize our nation in 2016 by attacking the core of our democracy,” Lankford said. “Anyone who believes they will not do it again has missed the basic information that is how day, after day, after day, in our intelligence briefings. The Russians have done it the first time. They showed the rest of the world the lesson in what could be done. It could be the North Koreans next time. It could be the Iranians next time. It could be a domestic activist group next time. We should learn that lesson, close that vulnerability, and make sure that we protect our systems in the days ahead.”

Rep. Sewell is also the lead sponsor of the SHIELD Act and the E-Fellows Security Act, two bills which would strengthen cybersecurity on federal, state, and local campaigns.

Rep. Terri A. Sewell is serving her fourth term representing Alabama’s 7th Congressional district. She sits on the House Permanent Select Committee on Intelligence and was recently appointed to the powerful House Ways and Means Committee. Sewell is a Chief Deputy Whip and serves on the prestigious Steering and Policy Committee of the Democratic Caucus. She is also a member of the Congressional Black Caucus, and serves as Vice Chair of the Congressional Voting Rights Caucus, and Vice Chair of Outreach for the New Democrat Coalition.

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Senator Ward’s SB84 on Habitual Offenders Act Catches Serious Criticism

by Lee Hedgepeth Read Time: 9 min
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