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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.

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

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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.

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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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23rd Alabama inmate dies with COVID-19

There have been 409 total positive COVID-19 cases among inmates and 392 total among employees as of Sept. 26.

John H. Glenn

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(STOCK PHOTO)

The Alabama Department of Corrections on Friday reported the 23rd COVID-19 death among inmates in the state’s prisons.

Christopher Nalls, a 59-year-old inmate serving a 15-year sentence, died Sept. 10 at a local hospital in Hamilton, Alabama.

Nalls was moved to the local hospital on Aug. 31 to receive treatment for pre-existing health conditions unrelated to COVID-19.

His admission test upon entering the hospital was negative, and after treatment, Nalls was discharged Sept. 4.

Upon return, Nalls’s condition worsened, and he was readmitted Sept. 10. He died later that same day. A postmortem COVID-19 test showed Nalls died with COVID-19.

ADOC did not report any other positive COVID-19 cases among inmates in correctional facilities. But in the same report Friday, ADOC reported six new positive cases among staff, bringing the staff total to 28 active cases.

ADOC’s Office of Health Services initiated investigations into possible prolonged exposures between positive staff members and inmates or employees.

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There have been 409 total positive COVID-19 cases among inmates and 392 total among employees as of Sept. 26.

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Courts

Sen. Doug Jones won’t support SCOTUS nominee before Nov. 3 election

“Certainly, power grabs are not uncommon in our political system, but few are accompanied by such blatant hypocrisy as we are witnessing now,” Jones said.

Eddie Burkhalter

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Incumbent U.S. Sen. Doug Jones during a livestreamed press briefing. (VIA DOUG JONES CAMPAIGN)

Sen. Doug Jones, D-Alabama, on Friday said he would not support any nominee to the U.S. Supreme Court before the outcome of the Nov. 3 election is determined. 

Speaking during a livestreamed briefing, Jones said that while Republicans appear to have enough votes to replace the late Justice Ruth Bader Ginsburg, he will not be a party to denying the people a voice in the process in the election of the next president “in just under 44 days.” 

President Donald Trump said Saturday that he plans to nominate Amy Coney Barrett to replace Ginsburg, who on Friday became the first woman, and first Jewish person, to lie in state at the U.S. Capitol. 

Several Republicans who voiced opposition to President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court more than 10 months before the 2016 election have reversed course, and now say they support Trump nominating a selection with election day just a little more than a month away. 

“Certainly, power grabs are not uncommon in our political system, but few are accompanied by such blatant hypocrisy as we are witnessing now,” Jones said. “In fact, I believe that the level and intensity of hypocrisy being displayed by Senator McConnell and the president, with regard to the rush to confirm Justice Ginsburg’s successor, is unmatched in the history of our constitutional government.” 

Jones said what McConnell and other Republicans should be focusing on instead is getting another round of much-needed COVID-19 aid to small businesses and people impacted by the pandemic. 

“Rather than pushing this confirmation to the top of the Senate calendar, the majority leader should turn his focus instead to protecting the lives and livelihoods of the American people. We should pass a new bipartisan COVID-19 stimulus package to give Americans and businesses the relief that they desperately need, and that economists say if required to shore up the economy now,” Jones said. 

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Jones expressed concern as well for what medical experts are warning could be a new spike in COVID-19 nationwide. 

“There could be an even greater urgency, if our health care professionals’ warnings come to pass,” Jones said. “And that is as temperature drops and people go indoors that this virus spikes, and we see another surge.” 

Asked why his opponent, Tommy Tuberville, won’t debate Jones, he said, “It’s pretty simple. He doesn’t know what he’s talking about.”  

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“He has no clue. He is Coach Clueless,” Jones said. 

Jones noted that when asked recently on his thoughts on extending the John R. Lewis Voting Rights Act of 2020, Tuberville stumbled through an answer that indicated he wasn’t sure what the Voting Rights Act was.

“He had no earthly idea,” Jones said. 

Jones said Tuberville isn’t going to debate him because Tuberville doesn’t want to talk about issues.

“He doesn’t want to talk about a plan. His plan is simply this: Whatever Donald Trump says, I’m good,” Jones said, “and if Donald Trump says or does something that is not good, it’s crickets coming from Coach Tuberville.” 

Jones noted that after multiple news outlets, including Fox News, confirmed reporting that Trump had said disparaging things about veterans who died in combat, Tuberville has not spoken out against Trump’s comments. 

Jennifer Griffin, senior national security correspondent for Fox News, reported that she has spoken to senior U.S. officials who backed up reporting by The Atlantic, and said Trump said of the Vietnam War “anyone who went was a sucker.” 

“He has not said a thing about what was confirmed by Fox News about the president’s comment,” Jones said of Tuberville. “That’s just disgraceful.”

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News

SEC college football season begins

In August, it appeared that there could potentially be no college football season.

Brandon Moseley

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(VIA AUBURN UNIVERSITY ATHLETICS)

The delayed Southeastern Conference college football season is now underway as Auburn on Saturday hosted Kentucky. The University of Alabama will be playing the University of Missouri in Columbia.

Kickoff for the Kentucky vs. Auburn game was at 11 a.m., and the kickoff for the Alabama vs. Missouri game will be at 6 p.m. Auburn defeated Kentucky 29 to 13.

In August, it appeared that there could potentially be no college football season. The Ivy League, the SWAC, the University of Connecticut, the MAC, the Big 10, the PAC 12, and the Mountain West conferences all announced that they would postpone the 2020 football season to spring.

The unlikely prospect of playing two shortened college football seasons in one calendar year seemed to be the best hope of there even being a college football season. But college football is not like other sports and there is no central governing authority. Each conference makes decisions for itself.

The Atlantic Coast Conference and SEC both met and each decided that they would play this fall — regardless of if any of the other conferences were playing. The Big 12 eventually joined the SEC and ACC.

The SEC will play a 10-game, conference-only season that ends with an SEC Championship game on Dec. 19. Both Alabama and Auburn will have fans in the stands, but both schools are limiting capacity — at least for their home openers. Attendees must wear masks or cloth face coverings and social distancing rules will apply.

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Many states, including Alabama, are playing high school football, and the NFL is in its third week of play. Last week, the Big 12 reversed their earlier decision to sit out this fall and announced an 8-week, conference-only season starting in October. On Thursday, the PAC 12 voted to play a seven-game, conference-only season starting in November, followed by a Dec. 19 championship game. The Mountain West has also voted to play a fall season and the Mid-American Conference is voting, and the colleges are expected to green light an abbreviated fall season.

President Donald Trump had strenuously urged colleges to play this football season.

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UAB, South Alabama and Troy University have already begun their Conference USA and Sunbelt Conference football seasons. UAB defeated South Alabama 42 to 10 on Thursday night.

While few young people have actually died from COVID-19, some university presidents in the Big 10 expressed concerns about the long-term health effects on COVID-19 on survivors, including incidents of heart inflammation.

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Congress

Republicans blast Jones for refusal to even consider Trump nominee

Brandon Moseley

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Republicans criticized U.S. Sen. Doug Jones, D-Alabama, on Friday for saying that he would not vote to confirm any nominee by President Donald Trump before the Nov. 3 election.

Alabama Republican Party chair Terry Lathan called Jones’s announcement “disgraceful.”

“It’s disgraceful that Senator Jones is dismissing his duties when he announced he would not support the confirmation of any Supreme Court justice nominee put forth by President Trump prior to the November election,” Lathan said in a statement. “The Constitution of our country clearly states that the President ‘shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…judges of the Supreme Court…’”

“At the very least, Senator Jones owes Alabamians the simple courtesy of meeting with the nominee regardless of what he already plans to do,” Lathan continued. “It’s time for him to do his job, at least until November 3rd.”

“The people of our great state have spoken,” Lathan concluded. “The majority support President Trump and his policies which includes the conservative judges he has nominated for the federal bench. However, Doug Jones continues to ignore the wishes of the majority of his constituents and falls in line with his liberal party bosses, Hollywood supporters and New York fundraisers. On Election Day, Alabamians will give their advice and consent to remove Doug Jones from office. Tommy Tuberville will represent the majority’s values when he is elected as our next U.S. Senator.”

On Friday, Jones was asked if he would even meet with the nominee. His response was, “I don’t think my vote’s going to count, so I doubt they’ll even want to.”

“The President’s nominee hasn’t even been announced but anti-Trump Democrat Doug Jones has already made up his mind against the person,” said NRSC spokesperson Paige Lindgren. “Refusing to take part in a consequential Supreme Court confirmation process is the latest example that Jones has one foot out the door. He’s clearly no longer focused on representing the people of Alabama.”

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Former State Rep. Perry Hooper Jr., a Trump supporter, said that Jones votes against “everything that the people of Alabama believe in.”

“Doug Jones has consistently voted against the President and everything the good people of Alabama believe in.” Hooper said. “Jones is against the 2nd Amendment, he is for government funded abortions and he is a globalist. Alabama needs to send a strong pro-life, pro-business, pro-Trump and pro-American to Washington DC. And that man is Coach Tommy Tuberville.”

Senate Majority Leader Mitch McConnell, R-Kentucky, has vowed to bring the president’s pick to the floor of the Senate for a vote.

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“Thank God for Senator Mitch McConnell,” Hooper said. “Senator McConnell has 51 votes to confirm the President’s nominee to the US Supreme Court.”

Conservatives are hopeful that a more conservative court will vote to overturn Roe vs. Wade, the Supreme Court precedent that prevents state governments from banning abortions.

“Senator Doug Jones betrayed Alabamians when he voted against Justice Kavanaugh and has betrayed them again today, before President Trump’s Supreme Court nominee has even been named,” SBA List President Marjorie Dannenfelser said in a statement. “During his short time in office, Jones has proven to be an extremist, repeatedly siding against constituents and voting with the most radical members of his party – like Kamala Harris – in favor of abortion on demand through birth, paid for by taxpayers. Asked about his stance on limiting late-term abortions more than halfway through pregnancy, Senator Jones laughed and called the issue ‘stupid.’ Jones is unfit to represent the pro-life, pro-Trump state of Alabama and will be held accountable at the ballot box.”

Many media sources are reporting that Trump will appoint Seventh Circuit Court of Appeals Judge Amy Coney Barrett to fill the vacancy on the court left by the death of Associate Justice Ruth Bader Ginsburg.

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