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:
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.”
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.
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.
Madison County mask order goes into effect Tuesday
Madison County’s health officer issued a face mask order to slow the spread of COVID-19, which goes into effect Tuesday at 5 p.m.
Madison County Health Officer Dr. Karen Landers, who also serves as the assistant state health officer, issued the order, which requires those over the age of 2 to wear masks in businesses or venues open to the public, while on public transportation, in outdoor areas open to the public where 10 or more people are gathered and where maintaining 6 feet of distance from others is not possible.
“We need to do all we can to limit the spread of COVID-19,” State Health Officer Dr. Scott Harris said in a statement. “Until we have a vaccine or treatment for COVID-19, wearing a face covering in public is a key measure we have available to prevent transmission of the virus.”
Huntsville Mayor Tommy Battle in a statement expressed support for the mask order. Madison County now joins Jefferson County, Montgomery, Mobile and Selma in requiring masks while in public.
“This is a simple math problem. Since June 16, the number of positive cases in Madison County has tripled, and the number of hospitalizations has increased 660 percent,” Battle said in the statement. “We need to take precautionary measures, such as wearing face covers, distancing 6 feet, and handwashing to provide a safe environment for our citizens.”
Madison Mayor Paul Finley also noted the surging cases and said he supports the order.
“Since day one, we as elected officials have said we would work to find the balance of personal versus economic health. While personal responsibility is still paramount, our dramatic rising numbers dictate this step be taken to continue to support all citizens’ safety,” Finley said in a statement.
Medical experts believe COVID-19 is most often spread when an infected person, with or without symptoms, talks, coughs or sneezes. Studies have shown that wearing masks reduces transmission of coronavirus.
Other exceptions to Madison County’s mask order include:
- Persons while eating or drinking.
- Patients in examination rooms of medical offices, dental offices, clinics or hospitals where their examination of the mouth or nasal area is necessary.
- Customers receiving haircare services, temporary removal of face coverings when needed to provide haircare.
- Occasions when wearing a face covering poses a significant mental or physical health, safety or security risk. These include worksite risks.
- Indoor athletic facilities. Patrons are not required to wear face coverings while actively participating in permitted athletic activities, but employees in regular interaction with patrons are required to wear face coverings or masks.
- Private clubs and gatherings not open to the public and where a consistent 6-foot distance between persons from different households is maintained.
“Although not mandated, face coverings are strongly recommended for congregants at worship services and for situations where people from different households are unable to or unlikely to maintain a distance of 6 feet from each other,” the department said in a statement on the order.
This is a simple math problem. Since June 16, the number of positive cases in Madison County has tripled, and the number of hospitalizations has increased 660 percent."
Parents must ensure children over 2 years old wear masks in public, and childcare establishments and schools are to develop their face covering policies and procedures, according to the department.
The order also mandates that businesses and venues open to the public provide a notice stating that face coverings are required inside, and signage is required at all public entrances.
“Wearing a face covering can help keep family, co-workers, and community safe,” Harris said. “This is the simplest act of kindness you can take for yourself, your family and your community, especially for those who are at high risk of contracting the virus.”
The Alabama Department of Public Health advises these actions to prevent the spread of COVID-19:
- Wash your hands frequently with soap and water for 20 seconds
- Social distance by staying 6 feet away from others
- Avoid people who are sick
- Stay home if you can; work remotely if possible
- Cover your mouth and nose with a face covering when around others
- Cover coughs and sneezes
- Clean and disinfect frequently touched surfaces
- Monitor your health
Push to rename Edmund Pettus Bridge gains steam, but Selma activists want their say
The latest effort to rename the bridge is gaining momentum, with a petition surpassing 300,000 signatures, but residents of Selma are saying not so fast.
The latest effort to rename the Edmund Pettus Bridge is gaining momentum, with its online petition surpassing 300,000 signatures and attracting some high-profile supporters, but residents of Selma are saying not so fast.
“We don’t agree that one person’s name should go on the bridge because it was a collective of people that made that happen,” said Alan Reese, of Selma, whose grandfather F.D. Reese was one of the “Courageous Eight” who invited Dr. Martin Luther King, Jr. to join their push for voting rights.
The bridge became a landmark of the civil rights movement in 1965, when state troopers and a white posse attacked the roughly 600 marchers who crossed it as they attempted to march to Montgomery to register to vote.
The event became known as Bloody Sunday and galvanized support for civil rights for Black Americans. Among the beaten was Georgia Rep. John Lewis, then a member of King’s Southern Christian Leadership Conference.
His role as a leader of that march, and the injuries he suffered from a trooper’s baton, made him the focus of The John Lewis Bridge Project, a nonprofit formed last month by Michael Starr Hopkins, who has worked as a political strategist for several Democratic campaigns.
Hopkins had just watched the 2014 film “Selma” and looked up who Edmund Pettus was. When he learned that Pettus had been a Confederate general and reputed grand wizard in the Ku Klux Klan, Hopkins decided he wanted to do something to change the bridge’s name. He created the petition, and within 24 hours, it had more than 10,000 signatures.
Its goal is half a million signatures, Hopkins said. He’s also raising money to start an outreach program in Alabama and nationally to build a pressure campaign to change the name.
Lewis responded to a previous petition to rename the bridge in his honor with a statement that it was not his desire. His office has not addressed the current effort. Lewis is undergoing treatment after he was diagnosed with advanced pancreatic cancer in December.
Hopkins said he understands Selma residents’ concerns.
“If someone was coming into my back yard and wasn’t from where I was from, telling me that I needed to change something, you know, I’d be a little ticked off too,” Hopkins said.
After speaking with Reese, he agreed that the citizens of Selma need to be central to the conversation about what will happen to the bridge’s name.
Alternatives to Lewis’s name have been suggested, including bestowing the honor on the “foot soldiers” who marched there, or on the eight activists who led the Dallas County Voters League, which laid the groundwork for the march that made the bridge a global icon of nonviolent struggle.
The very thing that my forefathers and mothers were walking on the bridge to secure was agency."
“Yes his name was on the bridge on Bloody Sunday, but if he had had it his way, none of the people crossing that bridge would have been let out of shackles, and we would still be slaves,” Hopkins said. “So I think that by continuing to keep his name on the bridge, you bestow a sense of honor that he is undeserving of.”
Reese said he plans to speak to Hopkins later this week to figure out how to proceed. This isn’t the first push to rename the bridge, and Reese said that Selma’s residents are tired of outsiders making decisions about what happens to what may be the most famous landmark in their community.
Monuments have faces, he said. The bridge is not a monument, and its history changed the meaning of Pettus’s name, he said, although he understands the urge to change it. If that happens, he wants the name to prompt people to learn about what the people of Selma did before and after Bloody Sunday. If it honored the Couragious Eight, for instance, that might encourage future generations to learn about who they were.
Reese’s grandfather was not featured in Ava DuVernay’s 2014 film, he noted. DuVernay tweeted recently in support of renaming the bridge.
Lydia Chatmon, who works to promote tourism in Selma and is a program manager for the Selma Center for Nonviolence, said that most surviving foot soldiers she has talked to aren’t keen on changing the name. It could also have implications for tourism, she said, noting that the bridge is under review for designation as a UNESCO World Heritage Site.
The bridge’s renaming is an opportunity to have a valuable conversation at a critical time, Chatmon added. The brutality captured by cameras on the bridge sent shock waves through American society, as did the brutality of George Floyd’s death captured by cell phone cameras, she said. Part of the process of building a better nation is having an open dialogue about issues like the bridge and how its name and legacy are owned and handled.
She looks forward to setting a date for an open town hall where the discussion can take place, likely in early August, she said.
Above all, it is a matter of agency, Chatmon said. King’s model for social change required the consent and participation of the people his work purported to help.
“The very thing that my forefathers and mothers were walking on the bridge to secure was agency,” Chatmon said.
For the first time, more than 1,000 hospitalized with COVID-19 in Alabama
The new highs of 919 patients in hospitals being treated for COVID-19 on Sunday and of 1,016 on Monday were 40 percent higher than the number of patients a week ago.
The number of people hospitalized with COVID-19 in Alabama hit record highs Sunday and Monday, jumping over 900 on Sunday for the first time since the pandemic began, and then surging past 1,000 for the first time on Monday.*This story has been updated throughout at 6:30 p.m. on Monday, July 6 to include the latest figures.
The new highs of 919 patients in hospitals being treated for COVID-19 on Sunday and of 1,016 on Monday were 40 percent higher than the number of patients a week ago on June 28 and more than 50 percent higher than two weeks ago. The seven-day average of that number was also at a new record high Monday.
Dr. Don Williamson, president of the Alabama Hospital Association and a former state health officer, told APR on Monday that 893, or 57 percent of the state’s supply of ventilators, were available Monday morning, while 309 of 1,669 ICU beds, or 18.5 percent, were available.
Williamson said while those two indicators are encouraging, it may take several weeks to learn whether many of those hospitalized will worsen and require ICUs and ventilators, and possibly lead to a rise in deaths. He said another possibility is that younger people are being admitted for COVID-19 but may not become sick enough to require more of the hospitals’ resources, and doctors are getting better at caring for coronavirus patients.
“We just don’t know yet. We don’t know which way we’re going to go,” Williamson said. “We just know we got a whole lot more cases than we had a month ago, and we’ve got a lot more hospitalizations than we had a month ago.”
Williamson said that from the week beginning June 29 to the week starting July 5, the average number of daily COVID-19 hospitalizations increased by 140, rising from 658 hospitalizations to 798 hospitalizations on average during that time. He believes the number of confirmed cases will continue to spike after Fourth of July celebrations.
For six straight days, Alabama has added more than 900 new COVID-19 cases daily, and on Monday the state recorded 925 new cases, and the 14-day average of new cases was also higher than it’s been since the pandemic began, at 1,025.
While testing has increased in Alabama, so too has the percent of tests that are positive, a marker public health experts say shows that there still isn’t enough testing and many cases are going undetected.
We just know we got a whole lot more cases than we had a month ago, and we've got a lot more hospitalizations than we had a month ago.”
The 14-day average of percent positivity was 13.5 percent on Monday, and taking into account incomplete data on negative tests in April, which inflated the positivity percentage, the data Monday was at a record high. Public health experts say the number should be at or below five percent.
The seven-day and 14-day average of daily COVID-19 deaths both were at 11 on Monday, and the numbers have remained largely steady for most of May, June and July.
In the last week, there have been 79 COVID-19 deaths in the state. Since the pandemic began, there have been 984 deaths in Alabama attributed to the virus, and the Alabama Department of Public Health estimates that 23 more deaths are likely due to COVID-19.
Governor awards $48 million to Department of Education, up to $50 million for higher education
Gov. Kay Ivey on Monday awarded $48 million of the Governor’s Emergency Education Relief Fund (GEERF) to the Alabama State Department of Education in response to challenges related to COVID-19. This allocation will enable schools to enact policies established in the Alabama State Department of Education’s Roadmap to Reopening Schools.
As schools across Alabama are navigating increased challenges related to COVID-19, this initial investment will assist by providing budget stability, enable distance learning for any student that seeks it, and get additional resources to students most in need.
The allocation will be used as follows:
- $10 million to equip all school buses with WiFi capabilities to increase internet connectivity and help bridge the digital divide
- $4 million to improve remote learning opportunities by providing digital textbook and library resources for all students
- $26 million to provide additional academic support to bridge learning and achievement gaps
- $9 million to support intensive before and after school tutoring resources for learning and remediation in schools
Additionally, Alabama institutions of higher education will be able to submit requests for a combined reimbursement of up to $50 million of the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Alabama received approximately $1.9 billion of CARES Act funding to respond to and mitigate the coronavirus pandemic. Alabama Act 2020-199 designated up to $118.3 million of the Coronavirus Relief Fund for any lawful purpose as provided by the United States Congress, the United States Treasury Department, or any other federal entity of competent jurisdiction.
“I am pleased to invest in our state’s greatest asset – our students,” Governor Ivey said. “As we respond and adapt to COVID-19, we must ensure that our local school districts and institutions of higher education receive necessary support and provide our students full access to their educational opportunities. Closing school during the pandemic disproportionately impacts students who are already struggling, and it is our obligation to provide as much stability and access possible in these uncertain times.”