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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.

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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.

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.

*******
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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Elections

A case of mistaken candidate identity could embarrass the ALGOP

Josh Moon

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It’s one of the oddest, and most embarrassing, cases of mistaken identity in recent Alabama political history.

According to recent polling, James Bonner is leading Jeremy Oden in a race for a seat on the Alabama Public Service Commission.

No, not that James Bonner.

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It doesn’t matter which James Bonner you were thinking of, it’s a different guy.

This Bonner — the one who resides in Bear Creek and who has never held public office despite several attempts — is set to embarrass the ALGOP like few other candidates.

On Monday, APR editor in chief Bill Britt wrote about a number of highly offensive Facebook posts by Bonner, including posting a Valentine’s Day card that read: “My love for u burns like 6,000 Jews.” There are other posts about strippers and an old blog post that inexplicably uses a racist rhyme.

Yet, because voters — mainly voters in south Alabama — are confusing James Bonner with a longtime congressman, he’s running neck and neck in the GOP primary.

“What makes this particular race so interesting is that Jim Bonner is benefiting greatly from having the same last name as the former Congressman Jo Bonner and his well-known sister, former Judy Bonner,” noted pollster and Cygnal president Brent Buchanan told Britt. “This is borne out by the fact that in the Mobile media market Bonner leads Oden by 28 percent to 6 percent, a 4-to-1 ratio.”

Should James from Bear Creek manage to pull off this “Distinguished Gentleman,” it could be a disaster for the ALGOP. Because his problems go well beyond a few offensive Facebook posts.

Bonner has filed multiple bankruptcies, has been cited by the IRS for failing to pay his federal income taxes for several years and owes his ex-wife more than $40,000 in back alimony. He also claimed during his most recent bankruptcy proceedings in 2016 that he is too disabled to work, and thus avoid paying his full alimony payments, yet he’s been able-bodied enough to run for public office five times over the last eight years.

And it gets worse.

Bonner entered into a bankruptcy agreement to repay his debts, which totaled into the six figures, and then he failed to pay the agreed-upon bankruptcy payments. That failure resulted in his bankruptcy agreement being dismissed — an extremely rare action by the courts and one that could see him face criminal charges over his back taxes.

And that’s not the end of it.

His campaign finance reports are also a mess. Most of his forms have been filed hopelessly late and are filled with incorrect info. He also has failed to report a single donation — outside of a loan he made to his campaign fund — to any of his various campaigns.

Following APR’s initial report on Monday, Bonner began scrubbing his Facebook page clean of the offensive posts. In response to the story, which he linked, he claimed his various offensive posts were made “make liberals angry.” He did not deny making any of the posts.

 

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Elections

Poll shows Maddox pulling ahead in race for Democratic nomination

Chip Brownlee

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With endorsements from heavyweight Democratic groups like the New South Coalition’s campaign arm and the Alabama Democratic Conference, the Democratic party appears to be coalescing around Tuscaloosa Mayor Walt Maddox ahead of the June 5 primary.

A new poll released by the Maddox campaign Tuesday backs up what the endorsements hint: Maddox appears to be pulling ahead of challengers Sue Bell Cobb, a former chief justice of the Alabama Supreme Court, and James Fields, a former state representative from Cullman County.

Former gubernatorial aide Doug “New Blue” Smith and Dothan activist Christopher Countryman are also seeking the nomination.

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The poll — conducted by Mississippi-based Chism Strategies for the Maddox campaign — shows Maddox capturing 68 percent of likely voters surveyed ahead of the Democratic primary election.

Cobb and Fields trail behind Maddox in the poll by a 5.6-to-1 and 11-to-1 advantage among those who expressed support for a candidate, respectively, according to the poll results provided.

“Numbers don’t lie — Walt is on a fast track to a substantial victory in the primary,” said Chip Hill, a spokesman for the Maddox campaign. “The people of Alabama, especially younger voters, are finding Walt and his message very attractive.  He will most definitely be a force to be reckoned with in November.”

From May 15 to May 17, 13,601 likely Democratic voters were interviewed by live callers, according to the Chism Strategies results released.

The Alabama Democratic Conference — long considered one of the main gatekeepers in Alabama Democratic politics and one of the most powerful and active black political groups in the state— officially threw their support behind Maddox on Saturday.

Maddox has received a number of endorsements in the race for governor including from Birmingham Mayor Randall Woodfin last week.

A number of key Democratic lawmakers in the state — from State Sen. Vivian Figures, D-Mobile, and State Rep. Chris England, D-Tuscaloosa — have also backed Maddox.

A Democrat hasn’t been elected governor in Alabama since former Gov. Don Siegelman’s victory in 1998. Democrats in Alabama are hoping that recent momentum from Sen. Doug Jones’ election last year could help a Democrat upend the GOP’s hold on most statewide elected positions.

While Maddox is a newcomer to state politics, Cobb has experience in statewide races. Her election as supreme court chief justice in 2006 cost millions and achieved national notoriety as a Democratic victory during a time of Republican takeovers in the South.

Cobb has had trouble getting traditional Democratic groups to back her campaign. Members of the Alabama New South Coalition and its political arm, the New South Alliance, expressed concern during their endorsement vote over Cobb’s resignation as chief justice and a letter she wrote backing President Donald Trump’s nomination of Attorney General Jeff Sessions.

When Cobb resigned in 2011, she was the top statewide elected Democrat left. Only Public Service Commission President Lucy Baxley remained after Cobb quit.

Both the Alabama Democratic Conference and the New South Coalition have strong voter outreach and get-out-the-vote operations that could work to Maddox’s advantage in the June 5 primary.

 

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Elections

Manufacture Alabama makes endorsements

Brandon Moseley

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Friday, Manufacture Alabama announced several endorsements for the upcoming primaries.

“Alabama’s Primary Election is June 5. Many Manufacture Alabama endorsed candidates have tough primary elections. It is crucial that you get out and vote on June 5. There have been many significant races over the years that have been decided in close primaries or run-offs,” the group said in a statement.

Manufacture Alabama Endorsed Candidates include:

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Governor: Kay Ivey (R)
Lieutenant Governor: Twinkle Andress Cavanaugh (R)
Attorney General: Steve Marshall (R)
Commissioner of Agriculture and Industries: Gerald Dial (R)
Treasurer: John McMillan (R)
Alabama Public Service Commission, Place 1: Jeremy Oden (R)
Alabama Public Service Commission, Place 2: Chris “Chip” Beeker Jr. (R)

State Senate Races
Senate District 2: Tom Butler, R-Madison.
Senate District 3: Mike Sparks (R)
Senate District 7: Sam Givhan, R-Huntsville.
Senate District 8: incumbent Steve Livingston , R-Scottsboro.
Senate District 12: incumbent Senate Pro Tem Del Marsh, R-Anniston.
Senate District 21: incumbent Gerald Allen, R-Tuscaloosa.
Senate District 34: Jack W. Williams, R-Wilmer.

State House Races
House District 10: incumbent Mike Ball, R-Madison.
House District 12: incumbent Corey Harbison, R-Cullman.
House District 14: incumbent Tim Wadsworth, R-Arley.
House District 16: incumbent Kyle South, R-Fayette.
House District 22: incumbent Ritchie Whorton, R-Owens Crossroads.
House District 30: Rusty Jessup, R-Riverside.
House District 48: incumbent Jim Carns, R-Vestavia Hills.
House District 49: incumbent April Weaver, R-Alabaster.
House District 55: incumbent Rod Scott, D-Fairfield.
House District 64: incumbent Harry Shiver, R-Bay Minette.
House District 73: incumbent Matt Fridy, R-Montevallo.
House District 77: Malcolm Calhoun, D-Montgomery.
House District 102: Thomas Gray, R-Cintronelle.
House District 105: Chip Brown, R-Mobile.

Alabama Supreme Court
Chief Justice: Lyn Stuart (R)
Place 1: Brad Mendheim (R)
Place 4: Jay Mitchell (R)

Alabama Court of Civil Appeals:
Place 1: Christie Edwards (R)
Place 2: Terri Thomas (R)

Alabama Court of Criminal Appeals
Place 1: Richard Minor (R)
Place 2: Chris McCool (R)
Place 3: Bill Cole (R)

State Board of Education
Place 8: Rich Adams (R)

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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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