By Lee Hedgepeth
Alabama Political Reporter
MONTGOMERY – The Alabama Legislature’s inability to react in the wake of Lawrence v. Texas, a 2003 US Supreme Court opinion declaring all laws prohibiting private, consensual sexual acts between adults unconstitutional, may prove fatal to the prosecutions of those accused of serious sexual misconduct throughout the State.
In the first Alabama court opinion addressing the State’s anti-sodomy statute since Lawrence, the Alabama Court of Criminal Appeals last week in Williams v. State held the entire law unconstitutional on its face:
“In light of the United States Supreme Court’s holding in Lawrence, we conclude that 13A-6-65(a)(3) is unconstitutional and that the circuit court erred in denying Williams’s motion for a judgment of acquittal. Therefore, we reverse the circuit court and render a judgment in favor of Williams.”
DeWayne Williams, the man acquitted by the Court of Criminal Appeals, had been charged and convicted of sodomy and served a year in jail, never being able to put forward a defense of consent – as constitutionally required by Lawrence – due to the Alabama anti-sodomy law’s broad wording. Passed in the 1970s, its provisions made clear that sodomy was illegal in the State whether or not the act was consensual.
Williams maintains that the sexual encounter for which he was charged was consensual. The State, though – and the victim, according to the opinion – maintained the opposite.
That distinction, though, between consensual sexual acts and rape, is one that Alabama’s anti-sodomy statute did not make, and one that the Alabama legislature has failed to enact into law since the High Court’s decision in 2003 outlawing statutes without such distinction.
Due to that inaction, the State of Alabama will not have an opportunity to retry Williams, or others they have prosecuted under the unconstitutional statute.
Indeed, because no constitutional ban on non-consensual sodomy has been passed by the Alabama Legislature in light of Lawrence v. Texas, all convictions under the law since 2003 can now be challenged, including those of heinous, clear cut offenders deemed guilty by a jury of oral or anal rape.
This point has been conceded by Alabama Attorney General Luther Strange, who is asking the Court of Criminal Appeals to revisit the issue, though the legal grounds for the appeal seem shaky, if not altogether unrealistic.
In his office’s press release on the matter, AG Strange does, however, point to an excellent example of the ramifications of legislative inaction the wake of the 2003 ruling.
“The impact of the Williams decision is illustrated by the case of Thomas Gilbert, which is also currently pending before the Court… The 54-year-old Gilbert gave enough alcohol to a teenage boy to render him severely drunk and then had sex with the teenager without his consent. If Williams stands, Gilbert’s conviction will also be reversed, even though the sex was nonconsensual, and Gilbert will not have to register as a sex offender… That is why I intend to ask the Court of Criminal Appeals to reconsider its decision,” the Attorney General’s statement said.
While AG Strange is correct about the imminent reversal of Gilbert’s conviction – and others like him – due to double jeopardy considerations, it seems unlikely that the Court of Criminal Appeals will revise their decision.
As the Alabama Political Reporter relayed when the decision was rendered, the Court of Appeal’s per curiam opinion overturning Williams’ conviction criticized the State’s attorneys for advancing the very argument Strange is now asking the court to reconsider, explicitly rejecting its legal basis and condemning the State for asking that the court “amend the Alabama Code to make it constitutional.”
“The State urges this Court to hold that the statute now requires, as an element of the crime, that any sexual act charged under 13A…(3) must have been committed without the consent of the victim,” the Court of Appeals opinion in Williams v State said.
“The State suggests we accomplish this by striking down the unconstitutional language… and remanding the case for a new trial. The Alabama Supreme Court, however, has stated: “As the judicial branch of government, this court can only interpret the law. Therefore, we will not, as the State urges us to do on appeal, amend the Alabama Code to make it constitutional.”
That portion of the court’s opinion mirrored wording in the brief of lawyer Bryan Stevenson, director of the Equal Justice Initiative, on behalf of Williams in the case.
“Because Section 13A…(3) is facially invalid, it cannot be redrafted by this Court so that it comports with the constitutional requirements of Lawrence v. Texas. Under state and federal law, courts are prohibited from redrafting a law so that it comports with constitutional requirements. Ex Parte Perkins, noting that courts should refrain from making policy decisions because the judicial branch of government can only interpret the law.”
AG Strange’s press release, though, argued the court should revisit the case to do just that.
“The Williams decision leaves all Alabamians less protected from nonconsensual sex and potentially calls into question numerous past convictions,” Strange said. “That is why I intend to ask the Court of Criminal Appeals to reconsider its decision.”
From the Court of Appeal’s earlier decision, it seems much more likely they will not revisit the issue, as they seem in line with the legal view of EJI, the nonprofit representing Williams.
“Courts may not legislate,” EJI’s brief said, “even if, as the State suggests in its brief, failing to legislate may leave a gap in a state’s criminal code. The Alabama Supreme Court has repeatedly held that ‘[such] questions of propriety, wisdom, necessity, utility, and expediency are exclusively for the Legislature to determine and are matters with which the courts have no concern.’”
The Alabama Legislature, under both Democratic and GOP rule, has now had over a decade to address the legal problems arising with the statute since Lawrence was decided in 2003. Despite that amount of time, though, no action has been taken, and the State is now reaping the legal consequences.
So, until Alabama’s legislative body acts, all forms of sodomy, wanted or unwanted, are now legal under state law, giving birth to a problem which needs a solution of “wisdom, necessity, utility, and expediency,” not another decade of inaction.
The Attorney General is expected to file his request for a rehearing by the end of next week.
“We’re not going to get a do-over:” Alabama health officer on Thanksgiving and COVID-19
There were 1,427 hospitalized COVID-19 patients in Alabama on Monday, the most since Aug. 11.
Alabama State Health Officer Dr. Scott Harris on Monday pleaded with the public to avoid gatherings over Thanksgiving as COVID-19 continues to surge in Alabama and hospitals statewide are filling with coronavirus patients.
“We don’t want this to be the last ever Thanksgiving for someone in your family, like your parents or your grandparents,” Harris said during a press conference Monday.
Harris said Alabama’s numbers aren’t headed in the right direction and more than 230,000 Alabamians — roughly 4 percent of the state’s population — have been infected by the coronavirus.
“We are adding a couple of thousand new cases a day, at least, that we are aware,” Harris said. “This is a time for people to be vigilant. This is a time to be careful and to think about what you’re going to be doing.”
Alabama added 1,574 new coronavirus cases on Monday, and the state’s 14-day average for new daily cases was at a record high 2,087. In the last two weeks, the state has added 29,223 cases, the most cases in any two week period since the pandemic arrived in Alabama in March.
There were 1,427 hospitalized COVID-19 patients in Alabama on Monday. The last time so many were hospitalized in the state was on Aug. 11, during Alabama’s summer surge.
Harris said that he and his wife will be staying home for Thanksgiving instead of having his family’s regular large, intergenerational gathering. What happens with Alabama’s COVID-19 numbers over Thanksgiving will impact what the state’s December holiday and Christmas season will look like, Harris said.
“Are we gonna be here a month from now trying to have the same conversation? I really, really hope not,” Harris said.
Dr. Mary McIntyre, the Alabama Department of Public Health’s chief medical officer, said during the briefing that her home usually sees between 15 and 20 family members arriving for Thanksgiving. They’ve limited this year’s Thanksgiving to three additional people from out of their household, for a total of seven people, she said.
Everyone must wear masks and have temperatures checked at the door, she said.
Everyone will be seated six feet from one another and a Zoom video conference will be set up for those family members who won’t be attending in person, McIntyre said. They’ll use disposable plates, cups and utensils and have the ability, weather permitting, to eat outdoors.
“If we want to live to see another Thanksgiving, and I do, that it may mean stepping back this Thanksgiving and really limiting the number of people, and some of the things that we do,” McIntyre said. “Now is not the time to get out to do Black Friday shopping.”
Dr. Kierstin Kennedy, UAB’s chief of hospital medicine, in a separate press briefing Monday echoed concern over the possibility of spikes following Thanksgiving and Christmas if the public doesn’t do what’s needed to keep themselves and others safe.
“We are very much worried about the potential spike in numbers. We’ve also seen some of our own staff getting sick,” Kennedy said. “And unfortunately that’s not been at work. It’s been because we are just like you. We’re tired. We’re lonely. We want to try to socialize, and some of us have let our guards down and, as a result, have gotten sick.”
Kennedy said while there’s is concern over future spikes following the upcoming holidays “there is a way for all of us to help prevent that from happening.”
Kennedy said when Gov. Kay Ivey first issued her statewide mask order and social distancing requirements, the public masked up, businesses enforced the orders, and coronavirus numbers improved.
“It didn’t get nearly as bad as we thought, and we are really hopeful that the community is going to come together and do that again for us,” Kennedy said. “Because it’s more than just not having enough space for the COVID patients. It’s also those patients who do not have COVID that have other conditions. They rely on us for routine care, and we want to make sure that we’re available to provide that.”
Kenedy said UAB has an incredible group of staff members, who’ve proven themselves to be quite resilient, but that “the group is tired.”
“We’ve been doing this every single day since March, and so as you can imagine, people are very tired. It’s very emotional, especially as we see younger patients getting sick with this and getting sick in ways that we weren’t expecting,” she said.
Harris again urged the public to make smart decisions that will help slow the spread of coronavirus and save lives.
“Ladies and gentlemen, we’re not going to get a do-over on this,” Harris said. “This is a big national holiday, and we’re in the middle of a pandemic, and our numbers are worse than they have ever been during this entire response. Please be careful. Please be safe. And please try to take care of those people who are most vulnerable.”
Governor allocates $3.6 million in CARES Act funds to food banks
The money is to go to the nonprofit Alabama Food Bank Association, which will administer the funds.
Gov. Kay Ivey on Monday announced that $3.6 million in federal CARES Act money will be used to reimburse food banks for COVID-19-related expenses.
“Alabama is a state where neighbors help neighbors, even in the most difficult times,” Ivey said in a statement. “The Coronavirus pandemic presented significant challenges around the world, as well as here at home in our own state. Food banks in communities across Alabama have been a lifeline for those in need, and I am proud to be able to put these funds toward the Alabama Feeding Initiative. I have told Alabamians that I remain committed to getting these CARES Act funds into the hands of those who need it.”
The funds are to go to the nonprofit Alabama Food Bank Association, according to the memorandum of understanding. The association will administer the funds to eight participating food banks across the state, which can be reimbursed for the following:
- The purchase of food, packaging and related supplies to meet increased demand.
- operational expenses, including fuel and maintenance, incurred due to handling a higher amount for food, as well as open-air distribution events.
- Rental costs of storage space and vehicles to handle increased volumes of food.
- To purchase PPE, screening equipment and decontamination services to prevent the spread of COVID-19.
Unless Congress extends the deadline, Alabama and other states have until Dec. 30 to spend CARES Act funds or the money reverts back to the federal government. Ivey has just under $1 billion left to spend before the deadline.
Alabama Education Association, Board of Medical Examiners meet over excuses to break COVID-19 quarantines
Prior to the meeting, the AEA on Nov. 5 threatened legal action against the board over the matter.
Officials with the Alabama Education Association and the Alabama State Board of Medical Examiners met on Thursday to discuss a concern the association has with doctors who write excuses to allow students to return to school before their mandated COVID-19 quarantine periods expire.
At the meeting between Theron Stokes, associate executive director of the Alabama Education Association, and William Perkins, executive director of the Alabama State Board of Medical Examiners, Stokes learned that the board wasn’t aware of the problem, the AEA said in a press release.
“Both groups agreed to set up a meeting with educational and medical organizations on the front lines of the COVID-19 pandemic in Alabama,” the AEA said in the release. “A meeting should be held before the end of the year and will allow the AEA and the Board of Medical Examiners, as well as other educational and medical organizations, to review existing guidelines issued by the Alabama Department of Public Health and the Centers for Disease Control and ensure conformity in following those guidelines.”
In a letter to Perkins on Thursday, Stokes wrote that it was AEA’s understanding that the board was aware of the problem, but he wrote that during their meeting he became aware that neither the board nor Perkins was aware of the problem.
“It was not the intent of AEA to cause any unnecessary problems for you, the doctors you represent, or your organization regarding this matter,” Stokes wrote.
Prior to the meeting, the AEA on Nov. 5 threatened legal action against the board over the matter.
“It is our firm belief that there exists no medical scenario under which these students could be written out of quarantine and that to do so is violative of ADPH and CDC quarantine recommendations,” Stokes wrote in the Nov. 5 letter.
Stokes in his recent letter notes that both agreed in the meeting to bring together representatives of the other organizations to come up with a uniform procedure for following state and federal guidelines.
“I agree with your plan to conduct this meeting and finalize our goals before the holidays,” Stokes wrote.
Caravan to honor the life of longtime State Rep. Alvin Holmes
The caravan is being organized by community activists Ja’Mel Brown and William Boyd.
There is a car ride caravan honoring the life and service of Rep. Alvin Holmes in Montgomery at 2 p.m. Monday. The caravan is being organized by community activists Ja’Mel Brown and William Boyd.
On Saturday, Holmes passed away at age 81. He was born in 1939 into a very segregated Montgomery and spent his life battling in favor of civil rights causes. He was one of the first Black state representatives to serve in the Alabama Legislature after implementation of the Voting Rights Act.
There had been Black legislators during Reconstruction in the 1870s, but Jim Crow segregation during much of the 20th Century had effectively disenfranchised millions of Black Alabamians for generations.
Holmes served in the Alabama House of Representatives, representing House District 78 from 1974 to 2018. Holmes participated in the civil rights movement. He was a professor and a real estate broker.
The chairman of the Alabama Democratic Party, State Rep. Chris England, D-Tuscaloosa, released a statement mourning Holmes’s passing.
“Representative Alvin Holmes was a great Democrat and a fighter,” England said. “He stood on the frontlines of the fight for civil rights and was willing to sacrifice everything in his fight for justice for all. He not only had a long and distinguished career as a civil rights leader, but also as a member of the Legislature, serving his constituents faithfully and dutifully for 44 years. Alabama has lost a giant, whose wit, intelligence, fearlessness, selfless determination, and leadership will be sorely missed. My prayers are with his friends, family, and colleagues.”
State Rep. Kirk Hatcher, D-Montgomery, fondly remembered Holmes, whom he defeated in the 2018 Democratic primary.
“Today we lost a dedicated warrior for social justice. Representative Alvin Holmes was a true public servant,” Hatcher said. “What an amazing legacy he has left us! He could always be seen waging the good fight for equality in all aspects of state government and beyond. His public service is legendary and without peer.”
“In recent years, I am profoundly grateful for the grace he showed me in his willingness to share with me his blueprint for effectively serving our people—and by extension the larger community,” Hatcher said. “Today, my fervent prayers are with his beloved daughter Veronica, her precious mom (and his best friend), as well as other cherished members of his family and friends as they mourn his passing. I humbly join the many voices who offer a sincere ‘Thank You’ to Mr. Alvin Holmes for his dedicated service to our Montgomery community and our state. ‘May angels sing thee to thy rest.’”
State Rep. Tashina Morris, D-Montgomery, also fondly remembered Holmes.
“Sending Prayers to The Holmes family,” Morris said. “Alvin Holmes was the epitome of greatness working for his people!! May you Rest Well !!!”
Republican insider and former State Rep. Perry Hooper Jr. also served with Holmes in the Alabama House of Representatives and the Montgomery legislative delegation.
“I served with Alvin for 20 years in the Alabama Legislature,” Hooper said. “We often disagreed on the issues, but even after a heated floor debate, we could shake hands at the end of the day. I always considered him a friend. He loved Montgomery and he was a great representative of his district and its issues. He was always willing to go the extra mile for one of his constituents. When I served as Chairman of the Contract Review Committee, he was one of the committee’s most conscientious members. He was always questioning contracts so he could be assured that the contract represented a good use of taxpayer’s dollars which as Chairman I greatly appreciated. He was one of a kind pioneer in the Alabama Legislature and will be sorely missed.”
Alabama Secretary of State John Merrill served with Holmes in the Alabama House of Representatives prior to his election as secretary of state.
“I just learned that former State Rep. Alvin Holmes passed away today,” Merrill said on social media. “I enjoyed the privilege of serving with him from 2010-14. There was never a dull moment whenever he was in the Chamber. I appreciated him for his candor & for his desire to work on behalf of his constituents!”
Holmes was a member of the Hutchinson Missionary Baptist Church, Kappa Alpha Psi Fraternity, Montgomery Improvement Association, Southern Christian Leadership Conference, Alabama Southern Christian Leadership Conference Board, and the National Association for the Advancement of Colored People. He has one daughter, Veronica.