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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.

*******
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

Opinion | Collier’s allegations are not about Ivey’s health — they’re about retaliation

Josh Moon

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It’s not the (alleged) stroke, it’s the coverup.

That was the message from Walt Maddox and his campaign on Thursday, as they took shots at Gov. Kay Ivey for allegedly directing her security detail to cover up a health scare in 2015. She’s also alleged to have demoted a state trooper from her security team after he refused to conceal from his superiors a trip to the hospital Ivey was forced to take while attending a conference in Colorado.

And the story could use a little refocusing.

After APR’s Bill Britt wrote a story Monday that quoted former Alabama Law Enforcement Agency head Spencer Collier confirming the hospital trip for “stroke-like symptoms” and providing details of his conversations with Ivey about demoting the trooper, the story from state media outlets veered off course.

Instead of the focus landing on Ivey’s mistreatment of a law enforcement officer who was simply doing his job correctly, it became all about her health.

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Was she sick? Did she have a stroke? How’s her health these days?

Those are all fair questions.

They’re just not THE question that should have come from Collier’s revelations.

Because if Ivey did what Collier alleges, she possibly broke the law. And maybe, more importantly, she took money out of the pocket of a trooper who was trying to support a family simply because he refused to conceal her trip to the hospital.

That sort of behavior … well, we’ve seen that before in this state.

Mike Hubbard and Robert Bentley both went after law enforcement when they were initially caught in lies and illegalities.

Hubbard tried to defund the entire Alabama Attorney General’s Office and squeeze the prosecutors on his trail. He later launched public attacks against the lead prosecutor, Matt Hart, in a failed attempt to get out from under his misdeeds.

Bentley asked Collier, who was then head of ALEA, to lie to AG’s office investigators. And when Collier, after being terminated by Bentley for refusing to lie, told the world of the then-governor’s affair, Bentley set out to ruin the man.

Both Bentley and Hubbard wound up in jail for brief periods. And Alabamians wound up with more black eyes from the nation’s most corrupt state government.

That’s why this deal with the trooper matters so much.

Because it speaks to the character of Kay Ivey.

I mean, would she really demote this poor guy — the same trooper who sat by her hospital bed for three days — force him to uproot his family and go from the Montgomery area to Houston County, cut his pay and stifle his career because he followed trooper regulations instead of her improper/illegal directives?

Would she?

Because I think that’s something we should know.

Ivey, in response to Maddox’s comments on Thursday, told reporters that they should “check” the facts on the trooper, Drew Brooks.

I’ve done that.

I have copies from his personnel file showing where he lost pay and was sent from the governor’s security detail — a sought-after position — to giving out drivers licenses in Dothan — a very much not-sought-after position.



If Ivey has records indicating these things didn’t happen, I’d love to see them. And I’d also love to see records of her trip to Colorado in 2015.

Because right now, this is looking like a very familiar road.

A candidate who won’t debate. A politician who plays a little loose with the rules and law. A career politician who would do anything to stay in the game. A desperate politician who will stoop to any level to conceal their flaws and errors.

It all rings a bell, doesn’t it?

Mike Hubbard.

Robert Bentley.

Kay Ivey?

 

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Elections

Ivey campaign calls Maddox a lying liberal

Brandon Moseley

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The Kay Ivey campaign pounced after Walt Maddox contradicted himself and Spencer Collier at his news conference in Tuscaloosa.

Spencer Collier is a former Alabama Law Enforcement Agency (ALEA) head appointed by then Governor Robert Bentley (R). Collier thrust himself into the 2018 gubernatorial race by claiming that Ivey lied about an illness over three years ago back when she was Lieutenant Governor and then retaliated against a state trooper assigned to her security detail that allegedly was a source for an Alabama Political Reporter story about the hospital stay.

On Tuesday, Collier told Al.com “he has not been contacted by the campaign of Tuscaloosa Mayor Walt Maddox.”

On Wednesday, Maddox told the Associated Press that he was “shocked to learn” about the Collier allegations.

At his press conference on Thursday, Maddox told Al.com reporter that he had actually had a meeting with Spencer Collier several weeks back. Maddox admitted, “Spencer contacted me a few weeks ago and wanted to meet… He told me what he was going to do.”

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This embarrassing episode came on the heels of a Yellowhammer News report that Maddox’s struggling campaign has been bankrolled by far-left billionaire George Soros.

Maddox is running ads claiming that he will never lie.

The Ivey campaign wasted no time in taking advantage of Maddox’s gaffes.

“Apparently Walt Maddox isn’t just a liberal. He’s a lying liberal,” Ivey campaign spokesperson Debbee Hancock wrote in a statement. “The people of Alabama will see this for what it is – a desperate false attack from a shameless politician who will say or do anything to get elected.”

Hancock reiterated that the Governor and her doctor “have repeatedly disputed these lies and provided detailed accounts to back it up. As it relates to the officer, that’s another Maddox whopper. News outlets reported last year that the officer actually received a promotion and raise in late 2015.”

“Walt Maddox is pushing these last second lies because his half baked liberal ideas have him losing in a landslide,” Hancock stated. “With less than three weeks to go, not even $200,000 from George Soros can save him.”

Ivey took more than $100,000 from same Soros-backed PACs as Maddox

Collier was fired as head of ALEA by Bentley after a power struggle with alleged Bentley mistress Rebekah Caldwell Mason. Collier has been suing Bentley ever since. Collier became disenchanted with Ivey; because she has authorized using state funds to pay Bentley’s legal defense to fight Collier’s efforts to get a cash settlement from ex-Gov. Bentley. Collier is presently working as the police chief of Selma.

Walter “Walt” Maddox (D) is the Mayor of Tuscaloosa. He has never run a statewide campaign before and is struggling to find any issue that can cut into Ivey’s enormous 20 point lead in the polls. Maddox has run ads claiming that he is pro-life and pro-gun; but has conflicting statements on those positions. He has said that the Second Amendment has to be limited like the First Amendment. How that would work and what that means for gun owners is unclear. He has also said that he is pro-life; but opposes the pro-life Amendment Two, which is also on the general election ballot.

There are only eighteen days until the general election.

(Original reporting by the Yellowhammer News’ Sean Ross and the Alabama Media Group contributed to this report.)

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Elections

Zeigler: Change from Bentley to Ivey “removed a dark cloud over Montgomery”

Brandon Moseley

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State Auditor Jim Zeigler (R) told the Republican Women of Coffee County the resignation of former Gov. Robert Bentley “removed a dark cloud over Montgomery.”

Zeigler said he could see a real difference when Ivey took over in April 2017 after, “Bentley’s forced resignation.”

“During the two years I served with Gov. Bentley, I was never allowed inside the governor’s offices,” Zeigler said. “Once Kay Ivey took over, I was inside the governor’s offices six times in just the first two months, working with her staff on issues.”

Zeigler clashed frequently with the Bentley Administration even before his term began. Ultimately, Zeigler filed the first ethics complaint against Gov. Robert Bentley in March 2016. 13 months later the Alabama Ethics Commission found probable cause that Bentley was in-deed likely guilty of violation multiple counts of Alabama ethics and campaign finance law. Five days later, the House Judiciary Committee began historic impeachment hearings. On that same day, April 10, 2017, Bentley resigned and Ivey became governor.

As Governor Ivey has focused on: growing the economy. Unemployment has reached record lows and businesses are moving manufacturing to Alabama. The legislature has passed the second largest education budget in history. Kay has focused on increasing computer science classes, pre-K expansion, workforce development, and building new prisons.
Ivey is seeking a second term as governor in the November 6 general election. She faces Tuscaloosa Mayor Walter “Walt” Madox (D).

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While Zeigler had been a consistent critic of Bentley. Zeigler has not filed litigation against the Ivey administration but has been active on other issues, such as diversion of food funds by the outgoing Etowah County Sheriff.

While Ivey has led Maddox in every polls by large margins, Zeigler told the Republican group that some GOP voters “may be too confident. They think we Republicans have it made, so they don’t need to get involved and don’t need to vote. That is the quickest way to lose an election.”

Zeigler is seeking re-election in the Nov. 6 general election. He is opposed by Democratic nominee Miranda Karrine Joseph. This is the third time that Joseph has run for Auditor.

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Elections

St. Clair GOP urged to vote yes on Alabama Amendment Two

Brandon Moseley

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Rick Renshaw with the Alliance for a Pro-Life Alabama addressed the St. Clair County Republican Party at a meeting in Moody Thursday. Renshaw urged the gathered Republicans to vote Yes on Amendment two.

Amendment Two is a pro-life amendment that would clarify that nothing in the Alabama Constitution could be interpreted as guaranteeing a right to an abortion.

Renshaw said that the opposition is, “Sitting on $900,000. We have about a $1000. When I say they are going to outspend us a million to one, I mean that literally.”

We are not going to be able to run TV or radio advertising, Renshaw said. The opposition group is calling itself: “Alabama for Healthy Families. Can you be any more deceptive?”

We recently announced three co-chairs for our group, the Alliance for a Pro-Life Alabama: PSC President Twinkle Andress Cavanaugh, Republican Party Chairman Terry Lathan, and Mary Sue McClurkin. She shepherded a lot of legislation through the House during her four terms.

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We have a statement from the Attorney General supporting Amendment Two, Renshaw said. Any state candidate is welcome to submit a statement supporting Amendment Two.

AG Steve Marshall (R) has been supportive of the pro-life cause.

“When the Democrats controlled the legislature, we were kind of conditioned to vote no on Amendments,” Renshaw said. We need to get over that. Renshaw said that he was good with all four of the statewide Amendments; but particularly Amendment Two.

Renshaw warned that Planned Parenthood and the Amendment Two opposition would use scare tactics and misinformation to defeat Amendment Two.

“They are trying to scare people about the nature of the Amendment.” Renshaw said.

Renshaw told the Alabama Political Reporter that Planned Parenthood PACs in other state are transferring funds to the Alabama for Healthy Families PAC in violation of Alabama’s PAC to PAC transfer ban law.

“Thank you for letting me come up here and speak,” Renshaw told the St. Clair County Republicans.

The Chairman of the St. Clair County Republican Party is Lance Bell.

Chairman Bell said that Sheriff elect Billy Murray (R) did not run for another term as a member of the state Republican Executive Committee because he did not want to appear on the ballot twice. Emory Cox ran for that seat; but he got a job in the White House so had to resign.

The St. Clair County Executive Committee then accepted nominations for the vacancy. Judge Phil Seay (R), a former St. Clair Republican Party Chairman, was selected unanimously to fill that vacancy on the State Republican Executive Committee.

“Thank you very much I really appreciate it,” Judge Seay said.

The Treasurer reported that the St. Clair County Republican Party had over $45,000 in their main checking account. The bass tournament and scholarships accounts are separate from that main account.

Judge Seay made a motion that $10,000 of that be used to pay campaign debts for Judge-elect Bill Cole (R), Judge-elect Richard Minor (R), support the campaign of State Senator Jim McClendon (R), and state house candidate Craig Lipscomb (R). The St. Clair County Repubican Steering Committee would be able to spend up to $10,000 at their discretion.

The motion passed unanimously.

Chairman Bell announced that the Party will have officer elections in February.

St. Clair County School Board Member Bill Morris (R) is heading the St. Clair County for Kay Ivey Campaign.

Morris said that the governor needed donations to her campaign and volunteers to work the polls on election day.

Chairman Bell said that Kay Ivey was leading her Democratic opponent by 20 percentage points in the latest polling but that the biggest concern is that Republicans get complacent and not show up on election day. “Make sure you go vote and bring your friends and family too.”

Judge Robert Minor (R) thanked the party members who contributed to the local charity, Lighten the Load which raises money so that children in the foster care system can have hard sided luggage so that when they have to move to a new location they have something to put their stuff in. “Most of them have to put their stuff in garbage bags,” Judge Robert Minor said. “We raised $6500.”

On November 20, St Clair County will be 200 years old. There will be birthday parties with cake at both the Ashville and Pell City court houses.

The general election will be November 6.

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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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