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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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Retired U.S. Marines general endorses Doug Jones

Krulak, a Republican, served as the 31st commandant of the U.S. Marine Corps and as a member of the Joint Chiefs of Staff.

Eddie Burkhalter

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Retired United States Marine Corps Gen. Charles Krulak has endorsed Sen. Doug Jones, D-Alabama.

Retired United States Marine Corps Gen. Charles Krulak has endorsed Sen. Doug Jones, D-Alabama, the incumbent senator’s campaign announced Tuesday. 

Krulak, a Republican, served as the 31st commandant of the U.S. Marine Corps and as a member of the Joint Chiefs of Staff. He’s also the former president of Birmingham-Southern College. 

“Although I am a life-long Republican, I’m urging you to vote for Doug Jones. His work on the Armed Services Committee supports our veterans and military families, and ensures that we have the best equipped military in the world,” Krulak said in a new ad from Jones’s campaign. “Senator Doug Jones’ strong record of getting things done for Alabama and our military has earned our vote.” 

Jones in 2018 filed an amendment to make U.S. Department of Veterans Affairs reports on VA-run nursing homes public, and in 2019, introduced legislation that eliminated the Military Widow’s Tax, which impacted an estimated 2,000 surviving military spouses in Alabama alone.

In September, Jones introduced a bipartisan bill to address veteran suicide.

Krulak commanded a platoon and two rifle companies during his two tours of duty in Vietnam, according to his U.S. Marine Corps University biography. He was assigned duty as the deputy director of the White House Military Office in September 1987.

Krulak was promoted to General on June 29, 1995, and became the 31st commandant of the Marine Corps on July 1, 1995. He retired from the Marine Corps in June 1999.

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Crime

Alabama inmate dies after inmate-on-inmate assault

Edwin Wells, 29, died on Oct. 10 from injuries during an apparent inmate-on-inmate assault at the Easterling Correctional Facility, the Alabama Department of Corrections confirmed on Tuesday. 

Eddie Burkhalter

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(STOCK PHOTO)

A Prattville man became at least the 19th Alabama inmate to have died this year in a state prison of circumstances that were avoidable. 

Edwin Wells, 29, died on Oct. 10 from injuries during an apparent inmate-on-inmate assault at the Easterling Correctional Facility, the Alabama Department of Corrections confirmed on Tuesday. 

Wells death makes at least the 19th inmate to have died from either suicide, drug overdoses or homicide, according to records kept by the ACLU of Alabama’s Campaign for Smart Justice. His death is at least the seventh suspected homicide in state prisons this year. 

ADOC doesn’t typically publish information on an inmate death unless a reporter discovers the death through other means and requests the information, with the expectation of deaths of inmates who tested positive for COVID-19, which the department does regularly release. 

“The ADOC condemns all violence in its facilities, and the fatal actions taken against Wells by another inmate are being thoroughly investigated,” said ADOC spokeswoman Samantha Rose in a message to APR. “Wells’s exact cause of death is pending a full autopsy, and more information will be available upon the conclusion of the investigation into his death.”

A U.S. Department of Justice report in April 2019 found that Alabama’s overcrowded, understaffed prisons for men were likely in violation of the Constitution’s Eighth Amendment and its prohibition on cruel and unusual punishment, and that ADOC regularly failed to protect inmates from sexual and physical violence perpetrated by other inmates.

An expected followup report by the Department of Justice in July detailed why the federal government believes systemic use of excessive force within Alabama’s prisons for men violates the Eighth Amendment. 

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As of Tuesday, at least 29 state inmates and two prison workers have died after testing positive for COVID-19. There have been 453 confirmed coronavirus cases among inmates and 429 among prison staff as of Oct. 14, according to ADOC.

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Infrastructure

Alabama’s Black Belt lacks quality internet access, report finds

Twenty-two of 24 Black Belt counties are below the statewide average of 86 percent of the population who have access to high-speed internet, and two Black Belt Counties — Perry and Chocktaw — have no access at all. 

Eddie Burkhalter

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During an online video briefing Monday on a report about a lack of internet access in Alabama’s Black Belt, University of Alabama student Brad Glover warned reporters that he could get kicked off the briefing at any moment. 

That’s because he was talking during the video briefing by way of audio only, using his cell phone, as he does not have access to high-speed internet access at his Linden, Alabama, home in the Black Belt’s Marengo County. 

The COVID-19 pandemic that sent students home to study online left many in the Black Belt and other rural parts of Alabama in the lurch, without access to the high-speed internet enjoyed by so many other Americans, according to the latest report in the University of Alabama’s Education Policy Center’s Black Belt 2020 series. 

The latest report, titled “Internet Access Disparities in Alabama & the Black Belt,” found that 22 of 24 Black Belt counties, as defined by the Education Policy Center, are below the statewide average of 86 percent of the population who have access to high-speed internet, and two Black Belt Counties — Perry and Chocktaw — have no access at all. 

“It is still a terrible struggle for me to connect to get the things done that are required,” said Glover, who interned with the Education Policy Center. 

Stephen Katsinas, director of the Education Policy Center, said that in the 1930s, nine of ten rural homes lacked the electric service that urban American homes, by that point, had for 40 years. 

“The Rural Electrification Act was passed to address this abject market failure,” Katsinas said. “Today, as the COVID pandemic has shown, access to high-speed internet is as essential to rural Alabama as the REA was in the 1930s. Alabama must directly address the market failures that exist today to bring high-speech internet to every rural Alabamian, so that our rural workforce can access the lifelong learning skills they need, and our rural businesses can compete globally.” 

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The COVID-19 pandemic has also spotlighted the need to expand the growing area of telemedicine. 

Dr. Eric Wallace, medical director of Telehealth at UAB, told reporters during the briefing Monday that patients are largely doing telehealth from their homes, and explained that disparities in access to high-speed internet present a problem for them. 

“Since the COVID-19 pandemic began, UAB has done approximately 230,000 telehealth visits, and 60 percent of those were done by video,” Wallace said. 

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“Forty percent are audio only, and why is audio only? It’s because we do not have broadband,” Wallace said. “So it’s not just broadband. It’s broadband. It’s tech literacy. Socioeconomics, to have a device in your home. It’s all of that.”

Wallace said that the coronavirus crisis has made clear that telemedicine is a “100 percent necessity” and that patient satisfaction studies make clear it’s not going anywhere. 

The reasons for disparities in access to high-speed internet are myriad, explained Noel Keeney, one of the authors of the report and a graduate research assistant at the Education Policy Center. 

Keeney noted a study by BroadbandNow that estimates there are 154 internet providers in Alabama, but there are 226,000 Alabamians living in counties without a single provider, and 632,000 in counties with just a single provider. 

Even for those with access to internet providers, Keeney said that just approximately 44.4 percent of Alabamians have internet access at a cost of $60 monthly or below. 

“If we really care about our rural areas, we need to make an investment, and it needs to cut off that cost at a very low rate,” Wallace said. 

Katsnias said there’s a growing consensus on the part of Alabama’s political leaders that access to high-speed internet is an important issue, noting that Gov. Kay Ivey in March 2018, signed into law the Alabama Broadband Accessibility Act, which has given internet access to nearly 100,000 Alabama students. 

“In March, Gov. Ivey awarded $9.5 million in broadband expansion grants, with a significant amount going to Black Belt communities,” the report reads. “This was followed by $5.1 million in additional grants in May.” 

“The State of Alabama also allocated $100 million in federal CARES Act-related dollars for “equipment and service for broadband, wireless hot spots, satellite, fixed wireless, DSL, and cellular-on-wheels to increase access for K-12 students undergoing distance learning,” the report continues. 

An additional $100 million in CARES Act funds were made available to facilitate virtual learning across Alabama’s K-12 schools, researchers wrote in the report, and another $72 million in federal aid went to the state’s colleges and universities. 

Katsinas said however those federal funds are spent, the state still needs a long term plan for how to address the disparities in access to high-speed internet. 

“We need a long term plan and we need to do what we can do immediately,” Katsinas said

Read more of the Education Policy Center’s reports in the “Black Belt 2020” series here.

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Economy

Governor announces auto supplier IAC plans Alabama expansion

IAC is committing $34.3 million in new capital investment to expand its new manufacturing facility located in Tuscaloosa County.

Brandon Moseley

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Gov. Kay Ivey announced Monday that International Automotive Components Group North America Inc. plans to invest over $55.9 million in expansion projects that will create 182 jobs at two Alabama facilities.

“International Automotive Components is a leading global auto supplier, and I am pleased that this world-class company is growing significantly in Alabama and creating good jobs in Cottondale and Anniston,” Ivey said. “IAC’s growth plans show that Alabama’s dynamic auto industry continues to expand despite today’s challenging environment.”

Nick Skwiat is the executive vice president and president of IAC North America.

“Alabama was the logical choice due to its skilled workforce and proximity to the customer,” Skwiat said. “We are excited to see the continued growth of the automotive industry in Alabama and we plan to grow right along with it. We thank the Governor and Secretary Canfield for their leadership in this sector.”

IAC is committing $34.3 million in new capital investment to expand its new manufacturing facility located in Tuscaloosa County. This facility will produce door panels and overhead systems for original equipment manufacturers. That project will create 119 jobs at the production site in Cottondale.

IAC also plans to invest $21.6 million at its manufacturing facility located in the former Fort McClellan in Anniston. That East Alabama project will create another 63 jobs.

This project builds on a milestone 2014 expansion that doubled the size of the Calhoun County facility. There IAC manufactures automotive interior components and systems. Key components produced at the Anniston plant include door panels, trim systems and instrument panels for original equipment manufacturers.

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IAC Group is a leading global supplier of innovative and sustainable instrument panels, consoles, door panels, overhead systems, bumper fascias and exterior ornamentation for original equipment manufacturers.

IAC is headquartered in Luxembourg and has more than 18,000 employees at 67 locations in 17 countries. The company operates manufacturing facilities in eight U.S. states.

“With operations around the globe, IAC is the kind of high-performance company that we want in Alabama’s auto supply chain to help fuel sustainable growth,” said Alabama Commerce Secretary Greg Canfield. “We look forward to working with IAC and facilitating its future growth in this strategic industrial sector.”

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Danielle Winningham is the executive director of the Tuscaloosa County Industrial Development Authority.

“International Automotive Components is a valued part of Tuscaloosa County’s automotive sector,” Winningham said. “We are grateful for IAC’s investment in our community and the career opportunities available to our area workforce as a result of their investment.”

“The City of Anniston is excited that IAC has made the decision to expand here. I have enjoyed working with the leadership at IAC, the Calhoun County EDC, and the state of Alabama to get this project finalized,” said Anniston Mayor Jack Draper. “This is even further evidence that Anniston is indeed open for business.”

Only Michigan has more automobile manufacturing jobs than the state of Alabama. Honda, Mercedes, Hyundai, Polaris, Toyota and soon Mazda all have major automobile assembly plants in the state of Alabama.

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