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Sentencing reform does not mean soft on crime, neither does alternative sentencing

Bill Britt

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By Bill Britt
Alabama Political Reporter

Crime and punishment is a topic that raises complex issues, multiple passions and more than a little political rhetoric. A fixture of the liberal 1960s and 1970s was the idea that lawbreakers could be rehabilitated, that prisons were a barbaric intuition that should be brought into the modern era.

The scholarly new idea of that era was that rehabilitation was to be the function of criminal justice, that those who committed crimes could be changed into useful members of society through social engineering.

This liberal notion was thoroughly rejected in the 1980s and has continued in decline to this day.

Yet, with all of the good that has come from the more traditional model of crime and punishment there are still gaping holes when it comes to sentencing reform.

Sentencing reform is not synonymous with liberalizing punishment, no to the contrary, it has more to do with what Judge William Pryor said when he wrote that, “…criminal sentencing in Alabama could be made honest, fair, and rational.”

Judge William Pryor, who serves on the U.S. Court of Appeals for the Eleventh Circuit, was the driving force to establish the Alabama Sentencing Commission. Pryor served as the Alabama attorney general from 1997 to 2004. During this time he and his office drafted and successfully lobbied for the legislation that created the Alabama Sentencing Commission.

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Pryor has written that his goal for the commission was to, “Dismantle a regime of explosive growth in the prison population, disparities and dishonesty produced by indeterminate sentencing, and a system of corrections that offered few alternatives to incarceration as a form of punishment.”

He also has written that he hoped to, “Create over time a system of voluntary sentencing guidelines to the end that criminal sentencing in Alabama could be made honest, fair, and rational.”

According to Senator Cam Ward (R-Alabaster), who is the Co-Chairperson of the Senate Judiciary Committee, Chairman Joint Oversight for Prison and on the Sentencing Commission, says that the Sentencing Commission of Alabama has accomplished some very important tools toward better sentencing within the juridical system. A report released this summer lists a comprehensive look at what the commission has accomplish and is working on for the future.

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Over the years actions by the U.S. Supreme Court and the U.S. Congress have had the effect of federalizing crime and punishment and has severely compromised the sovereignty of state governments and courts.

Judge Pryor, in his writings on “Federalism and Sentencing Reform in the Post-Blakely/Booker Era,” sights two U.S. Supreme Court cases that produced a sea change in sentencing reform. First ‘Blakely v. Washington’ was decided in 2004 and then ‘United States v. Booker’ in 2005.

These two cases placed exhaustive roadblocks for sentencing reform in our nation’s states.

In her dissenting opinion in Blakely, Justice Sandra Day O‘Connor wrote, “What I have feared most has now come to pass: Over [twenty] years of sentencing reform are all but lost.”

O’Connor went on to accurately predict that many jurisdictions would abandon  sentencing reform all together.

The abandonment of sentencing reform had been one of the painful legacies of ‘Blakely.’

The Alabama Sentencing Commission is one of the few commissions that is still actively working to reform state sentencing policies.

In its mission statement the commission says, “The Alabama Sentencing Commission shall work to establish and maintain an effective, fair, and efficient sentencing system for Alabama that enhances public safety, provides truth-in-sentencing, avoids unwarranted disparity, retains meaningful judicial discretion, recognizes the most efficient and effective use of correctional resources, and provides a meaningful array of sentencing options.”

However, states have been wary of straying too far from the federal model which has resulted in limiting the role of judges and legislators.

“What has happened over the years is that states tie all of their sentencing guidelines to the federal guidelines. And what has happened over time is the federal justice and prison system has grown enormously,” said Ward.

Ward points out that when the federal system runs out of money because its prisons and courts have grown too large they simply print more money.

“The federal government can run up massive debt and then they just print more money but states like ours have to balance our budgets,” said Ward.

Ward says that many states have nearly bankrupted trying to keep on par with the federal system.

“So, over the years, mistakes have been made tying everything that we do to the federal government,” said Ward. “Some things we do should be tied to federal guidelines, but not everything,” said Ward.

The commission has made progress in its mandate to ensure that sentencing practices promote public safety and recognize the impact of crime on victims by concentrating on the incarceration of violent, sex, and repeat offenders. There is still work to be done to “maintain meaningful judicial discretion allowing judges the flexibility to individualize sentences based on the unique circumstances of each case,” states the Alabama Sentencing Commission.

This again is slowed because of ‘Blakely’ and the federalization of the sentencing with mandatory minimums.

Today, prisons and state resources are stretched to the breaking point, the judicial system has ridden the pendulum, from the lenient 60s and 70s through the “Tough on Crimes,” of the last three decades into a new awareness that there must be a middle way. Where tough on crime also means alternative sentencing but not liberal punishment.

Ward said, “There are a lot of other individual crimes, particularly certain types of drug crimes, acts where you get caught for possession, but you are not trafficking, crimes like that aren’t necessarily tied to any kind of mandatory minimum.”

Ward says that using certain alternative sentencing options, is how to begin to address prison overcrowding.

“You look at conservative states like Texas, Kentucky, South Carolina, these are states that are very conservative and they have already tackled this issue,” said Ward.

But, Ward and others point out that this is not about being soft on crime but being sensible in finding ways to keep the worst criminals behind bars.

However, only recently have many Republicans began to see the need for alternitive sentencing, the impetus coming not from legal reasoning but from budgetary restraints.

“There has been a dramatic shift in the political landscape on this issue in the last few years,” said Adam Gelb, director of the Public Safety Performance Project of the Pew Center on the States. “Conservatives have led the charge for more prisons and tougher sentencing, but now they realize they need to be just as tough on criminal justice spending.”

Ward says that many conservative states because of budgetary constraints have looked at how to  keep their pledge of public safety, punishment for crime and judicial integrity while making tough choices.

When asked which state offers the best example of a conservative re-evaluation of alternative sentencing, Ward said, “Texas, hands down. Because the Republican legislature, they are the government of Rick Perry, they have signed into law alternative sentencing guidelines for these first-time, non-violent offenders and have remained tough on crime.”

Alabamians expect that the legislature will keep in mind Justice Pryor’s goal to, “Create over time a system of voluntary sentencing guidelines to the end that criminal sentencing in Alabama could be made honest, fair, and rational.”

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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Alabama women to Ivey: Support fair processes

Last week, Ivey co-authored a letter of support for Barrett and released it to media outlets.

Josh Moon

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Gov. Kay Ivey held a Coronavirus update Press Conference. (Governor's Office/Hal Yeager)

A letter signed by a bipartisan group of about a thousand Alabama women takes issue with Gov. Kay Ivey’s recent support of Republican Supreme Court nominee Amy Coney Barrett, and it encourages Ivey and other state officials to instead support fair processes.

Last week, Ivey co-authored a letter of support for Barrett and released it to media outlets. In response, the letter from Alabama women calls the process to nominate Barrett, which is occurring after more than 50 million votes have been cast and in a Senate that is predicted to change from Republican to Democratic control, unfair and “anti-democratic.”

The letter, which doesn’t criticize Ivey or request that she rescind her endorsement of Barrett, asks instead that Ivey and other state leaders honor women by implementing and following fair processes that provide women with equal opportunities.

The full letter is below:

Dear Governor Ivey,

We are a group of women. We are current and future mothers, grandmothers, caregivers, leaders and champions of all citizens of our great state. We are moderates, progressives and conservatives. When we agree with our leaders, we say so, as we have in your support for education, workforce development, and sensible mask policies.  

We also speak up when we do not agree. Thus, we want to respond to your letter in support of Amy Coney Barrett because it does not represent our views. 

Like you and Judge Barrett’s father, we want to tell all young girls that they can do anything their male counterparts can do and they can be anything and everything they want to be. We want it to be a truth, not just a signal “that the most qualified individual will get the job”.  In addition to those things, we want them to know and believe that the process will be fair, because no matter the job, the process should be fair. And our children and young people (boys or girls) should be able to trust that democracy works and can be counted on. How can we assure them when this process has been so rushed and undemocratic?

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We are women who oppose Judge Barrett’s confirmation, because confirming her at this time, when 50 million Americans have already cast their votes, is anti-democratic. Regardless of what ways she does or does not think or talk like us, what matters is that a confirmation should not take place after the election is underway. 

We do not expect you to rescind your support of Judge Barrett. However, we urge you and the other women leaders who have advanced to top positions in our government to stand with us in asking for a fair process that takes place after the election. A process that helps us to believe that our voices and our votes matter because the American people should have the right to choose who nominates the next Supreme Court Justice.

Respectfully, 

Emily Hess Levine
Lindsey Chitwood
Megan Cheek
Kira Fonteneau
Ronne M. Hess
Cindi Cassis Branham
Anna Brantley Fry
Joellyn M. Beckham
Kristen Berthiaume
Alexandra Ruthann Bullock McElroy
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The letter is signed by more than 800 women. The full list of signatures was sent to APR with the letter. We have chosen to list only the first 10 for the sake of brevity.

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Health

Study: COVID-19 infection rates more than double without lockdowns

Infection and fatality rates would have been higher without stay-at-home orders, a new UAB study found.

Micah Danney

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(STOCK PHOTO)

New research from the University of Alabama at Birmingham says that if there had been no stay-at-home orders issued in the U.S. in response to the coronavirus pandemic, the country would have experienced a 220 percent higher rate of infection and a 22 percent higher fatality rate than if such orders were implemented nationwide.

Seven states never imposed stay-at-home orders, or SAHOs. The study analyzed daily positive case rates by state against the presence or absence of statewide SAHOs between March 1 and May 4, the period when such orders began to be implemented. Twelve states lifted their SAHOs before May 4.

The researchers defined SAHOs as being in effect when a state’s governor issued an order for residents of the entire state to leave home only for essential activities and when schools and nonessential businesses were closed.

“During March and April, most states in the United States imposed shutdowns and enacted SAHOs in an effort to control the disease,” said Bisakha Sen, the study’s senior author. “However, mixed messages from political authorities on the usefulness of SAHOs, popular pressure and concerns about the economic fallout led some states to lift the restrictions before public health experts considered it advisable.”

The research also sought to determine if the proportion of a state’s Black residents was associated with its number of positive cases. It found that there was.

“This finding adds to evidence from existing studies using county-level data on racial disparities in COVID-19 infection rates and underlines the urgency of better understanding and addressing these disparities,” said study co-author Vidya Sagar Hanumanthu. 

The research can help advance a greater understanding of racial disparities in the health care system as a whole, and help leaders make future decisions about shutdowns as the virus continues to spread, Sen said.

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“While the high economic cost makes SAHOs unsustainable as a long-term policy, our findings could help inform federal, state and local policymakers in weighing the costs and benefits of different short-term options to combat the pandemic,” she said.

The study was published Friday in JAMA Network Open.

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Elections

Jones to attend Auburn student forum, Tuberville hasn’t yet responded to invitation

Jones has agreed to attend the forum, but it was unclear whether Tuberville planned to attend.

Eddie Burkhalter

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Sen. Doug Jones, left, and Senate candidate Tommy Tuberville, right.

The College Democrats at Auburn University and the College Republicans at Auburn University have asked U.S. Senator Doug Jones, D-Alabama, and his Republican opponent, Tommy Tuberville, to attend a student forum on Wednesday.

“We are excited to invite the candidates running for our U.S. Senate seat and provide this opportunity for any Auburn student to hear directly from them, and we hope it will inform our student bodies’ decisions with the November 3rd election only days away,” said Carsten Grove, president of the College Democrats at Auburn University, in a statement.

Jones has agreed to attend the forum, Auburn University College Democrats confirmed for APR on Sunday, but it was unclear whether Tuberville planned to attend. The student organization  was still awaiting a response from Tuberville’s campaign.

Jones has for months requested Tuberville join him in a debate, but Tuberville has declined.

“AUCR takes great pleasure in coming together with AUCD to co-host the Alabama Senate candidates in this forum. We are looking forward to a very informative and constructive event,” said Lydia Maxwell, president of the College Republicans at Auburn University.

Dr. Ryan Williamson, assistant professor of political science, is to emcee the forum, which will be open to all Auburn University students in the Mell Classroom Building at 6 p.m., according to a press release from the College Democrats at Auburn University.

Students will be permitted 30 seconds to ask a question of either candidate, and each candidate will have two minutes to answer, according to the release.

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Capacity at the forum will be limited and precautions taken due to COVID-19. Any student with an Auburn ID is welcome and attendance will be first come, first served.

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Health

122,000 Alabamians could lose health coverage if ACA is overturned, study finds

President Donald Trump’s administration and 18 states, including Alabama, are asking the country’s highest court to strike down the law. 

Eddie Burkhalter

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(STOCK PHOTO)

At least 122,000 Alabamians and 21.1 million in the U.S. overall would lose health coverage if the U.S. Supreme Court strikes down the Affordable Care Act, according to a recent study. 

The Washington D.C.-based think tank Urban Institute’s analysis found that Alabama’s uninsured rate would increase by 25 percent if the court strikes down the Affordable Care Act. Oral arguments in a case against the landmark health care law are to begin on Nov. 10.  

President Donald Trump’s administration and 18 states, including Alabama, are asking the country’s highest court to strike down the entire ACA. 

Trump, speaking to CBS News’s Lesley Stahl in a recent interview, said he would like the Supreme Court to end the ACA. There’s concern among many that Trump’s pick to replace the late Justice Ruth Bader Ginsburg on the court, conservative Judge Amy Coney Barrett, could be a deciding factor in the repeal of the ACA when the Supreme Court hears the case just after the Nov. 3 election.

“I hope that they end it. It’ll be so good if they end it,” Trump told Stahl.

“Repealing the ACA would throw our health care system into chaos in the middle of a pandemic and a deep recession,” Alabama Arise executive director Robyn Hyden said in a statement. “Tens of thousands of Alabamians would lose health coverage when they need it most. And hundreds of thousands would pay more for coverage or lose protections for their preexisting conditions.”

Health care coverage losses could be even larger next year, as the COVID-19 pandemic and recession likely still will be ongoing, according to the study. 

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“The ACA has been a health lifeline for many Alabamians during the pandemic,” Hyden said. “It provides coverage options for people who have lost their jobs or seen sharp reductions in their income. And it ensures people aren’t denied insurance just because they got sick.”

Ending the ACA would also reverse gains made in reducing racial disparities in health care coverage, researchers in the study found, noting that overturning the ACA would strip health coverage from nearly one in 10 Black and Latino Americans under age 65, and more than one in 10 Native Americans nationwide would lose health insurance. 

People with pre-existing conditions would be charged higher insurance rates, or have their coverage dropped altogether, if the ACA is struck down, according to the study, which also found that the law’s repeal would harm people who have health insurance through their jobs. 

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Those who have health insurance from an employer could see their plans reintroduce annual and lifetime coverage limits, and requirements for plans to cover essential benefits and provide free preventive services would disappear, according to the study, as would the requirement for insurers to allow young adults to be covered through their parents’ plans.

While millions would lose health care if the law is repealed, the country’s top earners would receive tax cuts, according to a study by the Center on Budget and Policy Priorities, which found that the highest-income 0.1 percent of households, which earn more than $3 million annually, would receive tax cuts averaging about $198,000 per year. 

“A portion of these tax cuts — about $10 billion per year — would come at the direct expense of the Medicare Trust Fund, since the additional Medicare tax the ACA instituted for couples with earnings over $250,000 flows to the fund,” the Center of Budget and Policy Priority study reads. 

Pharmaceutical companies would pay $2.8 billion less in taxes each year, according to the study, while millions of seniors would pay billions more for prescription drugs due to the gap in Medicare’s prescription drug benefit if the ACA is repealed. 

“The ACA has left Alabama better equipped to fight COVID-19 and rebuild our economy after the recession,” Hyden said. “And those benefits would be even greater if Alabama would adopt Medicaid expansion.

“Striking down the ACA would harm the Alabamians who have suffered the most during the pandemic and the recession. It would deprive our state of the opportunity to save lives and strengthen our health care system by expanding Medicaid,” Hyden continued. “And it would shower huge tax cuts on rich people while making life harder for everyone else. Alabama officials should stop seeking to undermine the ACA and start investing in a healthier future for our entire state.”

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