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Bill Britt

A Dark Omen Rises From Moore Trial

Bill Britt

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By Bill Britt
Alabama Political Reporter

Those politicos and advocates who follow history should mark Friday, September 30,2016 on their calendars and note it as the day the State of Alabama changed due to the suspension of Chief Justice Roy S. Moore from the Alabama Supreme Court.

There is no reason for anyone on either side of this issue to celebrate. By suspending Judge Moore, the Judicial Inquiry Commission (JIC) and the Court of the Judiciary (COJ) have completely undermined the very institutions that stand for equal justice.

An old and poignant saying to which I wholly agree states, there are two times when an individual should expect fair judgment: when they stand before a court of law and when they stand before their maker.

There are people whom I respect on both sides of the issue of what constitutes a marriage. I have known same-sex couples who have enjoyed, built and remained in relationships with far greater love and depth of commitment than others, in what is considered a traditional marriage, and, of course, I have witnessed the opposite as well. Perhaps I fall into the category of those who feel marriage is not a matter for the state, but a private one. This belief may show my ignorance, as I am woefully underserved in my small capacity to judge such weighty matters.

However, I do have some notion of politics and the things that spark hatred and incite the worst passion which led to unforeseen consequences. I also have some idea of how opportunists move for advantage when those emotions bring gale-force changes.

In our state, judges are elected by the will of the people. Elections may not be a perfect method, but it is the law. Under our system, the will of the people is expressed by their vote. Again, far from perfection, but it beats all other models. But in this instance, the will of the people was overturned by a politically-appointed body. You might say the politically-appointed US Supreme Court does this with regularity…..but do they?

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In this case, it appears Justice Moore was forced from office because he had an opinion. A majority of people who arguably hold the same view of resisting federal mandates elected Moore. This majority’s beliefs may be flawed, but these are the realities of our state.

Moore is an anachronism to the sophisticated and progressives and an embarrassment to many Republicans and Conservatives. But Moore is who he is and silencing him by way of suspending him from office without pay only gives his argument of a “lawless court” strength.

If his ethics violation was so heinous, why not render the judgment the JIC attorney called the “only solution” which was removal not suspension? Why did the Court of the Judiciary choose an arbitrary middle ground instead of the full-force of the indictment?

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In a word: Politics.

Here is why September 30, 2016, should be remembered: Because an elected judge was indicted by a politically-appointed secret commission with liberal leaning and convicted by a politically-appointed court which feared an onslaught of outrage in the form of name calling and accusation from those who believe Moore was wrong.

Moore issued an opinion that was overruled by the federal court and for this he was in effect removed in a political coup de tat.

Anyone who saw the Will and Grace tribute to presidential candidate Hillary Clinton knows how far the LGBT movement has come. The skit was quaint by today’s standards.

Those on the right should have known the majority of Americans have moved on from worrying about who marries whom. Same-sex marriage is the law of the land, like it or not.

Moore lost that battle on same-sex marriage.

At issue here is the JIC and its power vs. the will of the people. Will they now indict judges whose opinions are overturned by a circuit court or the State Supreme Court? Doubtful.

In Alabama, when a public official is accused of an ethics violation, the Ethics Commission investigates and decides if the matter should go to the Attorney General for prosecution (note: its track record is not so hot).

Here again, a politically chosen body is offering up probable cause. However, the difference is the Attorney General’s Office is elected and employs career prosecutors, not a hired gun like JIC.

The JIC, like the Ethics Commission, should be dissolved and those responsibilities placed into the hands of District Attorneys and the Attorney General’s Office. But that is my opinion.

But if there is an unwillingness to abolish it all together then the State Legislature should move to limit its scope to classic misconduct.

In Moore’s case, the JIC acted as a legal review, not conduct review, but I am certain their lawyers would try and spilt hairs on that concept.

Before Troy King, the Attorney General’s Office served as the prosecutor for the JIC. Upon taking office, Attorney General Strange sought to reestablish that tradition, but they rebuffed him. The commission prefers to hire ideologic, simpatico lawyers. In this case, the very liberal John Carroll. Their unwillingness to work with General Strange alone should cast doubt on the commission’s bias.

At the very least, the Legislature should permanently by law recognize the Attorney General’s Office as prosecutor for the JIC.

As with the Ethic Commission, it may develop a case and recommend prosecution but only the Attorney General’s Office would have authority to bring the case to trail.

Some may argue this scenario places too much power in the hands of the Attorney General, it’s easy to argue this would be a lesser risk to justice than what we currently have with the JIC.

While I only saw one lawmaker at Justice Moore’s trial, they should not ignore what happened. Lawmakers should not shrink from fully evaluating the JIC and recommending changes that present more transparency and accountability. There should be a very high bar established for removing a Chief Justice from office.

I don’t fear that same-sex marriage or what consenting adults practice in the privacy of their homes will harm my marriage. But I do fear and loathe what I witnessed on Friday because it casts a harsh shadow over the future of our justice system. The JIC’s action serves as a dark omen that should be addressed by the State Legislature before unwanted change sweeps away equal justice.

And isn’t that what this was all about anyway?

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Bill Britt

Opinion | Prisons, justice reform and the art of the possible

Politics is bound by the art of what’s possible. It is also true that those who never dare the impossible rarely achieve even the possible.

Bill Britt

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For years, prison reform advocates, media outlets and even a few public officials have called for new correctional facilities to address Alabama’s dangerously overcrowded prisons.

Now that it’s happening, some aren’t happy with how Gov. Kay Ivey is addressing the problem.

Is the Ivey Administration’s plan perfect? No. But building new facilities along with criminal justice reform — while all imperfect — is the last best hope to correct generations of cruel treatment, endangered correctional officers and corrupt practices.

German chancellor and statesman Otto von Bismarck said “Politics is the art of the possible, the attainable — the art of the next best,” this is the state of a workable solution to Alabama’s prison needs and criminal justice reform.

Yet, there is a concerted effort underway to stop the Ivey Administration from acquiring three new men’s prisons under a build-lease agreement.

Some lawmakers want another crack at financing additional facilities through a bond issue, and others want more say in the process. Still, the fact is that Ivey’s actions are the result of decades of legislative indifference and inaction to adequately address the appalling conditions at Alabama’s correctional facilities.

Even some advocates are working against the prison plan and while their intentions may be good it seem to their hand wringing is almost as disingenuous as lawmakers whining.

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What’s worse are those who spread disinformation to discredit process.

Many good people have worked hard to bring about an end to the state’s barbaric prison system and unfair justice, but lately it seems there is an outright movement to derail much needed change— simply because it’s not enough. As the saying goes, “Don’t let the perfect be the enemy of the good.”

There have been so many false claims and sly manipulations of facts about the prison plan as to make even a hardened journalist want to cry “fake news.”

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But as for Ivey, frankly, my dears, I don’t think she gives a damn.

Here’s the hard truth. The Ivey Administration is building three new men’s prisons, and nothing will stop it. The fact is that three prisons are not enough; the administration should move forward to build a new women’s facility as soon as practicable.

Politics is bound by the art of what’s possible. It is also true that those who never dare the impossible rarely achieve even the possible.

Failing to recognize when the once impossible is coming to fruition is a sad reality. Still, in politics, as in life, good things happen while most people are navel-gazing or complaining.

Having visited three state prisons, St. Clair, Elmore, and Tutwiler, I can say without a doubt, the conditions in those places are a living hell.

A report from the U.S. Department of Justice released in April 2019, found “reasonable cause to believe that Alabama fails to provide constitutionally adequate conditions and that prisoners experience serious harm, including deadly harm, as a result.”

DOJ’s investigation revealed that prisoners were susceptible to “an enormous breath” of sexual abuse and assault but other types of violence as well, including gruesome murder and beatings that went without intervention.

When the state incarcerates a criminal, it assumes custodial care for that individual. No matter how heinous the crime or foul the person, the state has an obligation to feed, clothe, house and provide essential human services for their care and welfare. Another element is often overlooked; when a person is committed to prison, they lose their freedom, not their humanity. Therefore, under the law, they cannot be subject to cruel and unusual punishment.

Building three new men’s prisons is just the start; it must be accompanied by criminal justice reform.

“We are able to have a serious discussion about prison reform in Alabama because we have a governor who is serious about putting solutions into place,” Ivey’s press secretary Gina Maiola recently told APR. “Prison infrastructure is a key part of the equation, but criminal justice reform is also needed,” Maiola said.

By executive order on July 18, 2019, Ivey established the Study Group on Criminal Justice Policy. The Study Group released its findings on Jan 31, 2020.

The Study Group entered its mission with one pressing question; “What policies and programs can the State of Alabama implement to ensure the long-term sustainability of our prison system without jeopardizing public safety?” according to Supernumerary Associate Supreme Court Justice Champ Lyons, Jr., who led the effort.

In a letter to Ivey on the Study Groups finding, Lyons wrote [T]he challenges facing our prison system are exceedingly complex—ranging from the elimination of contraband weapons and drugs to the recruitment, retention, and training of correctional staff to the size of the inmate population and to the physical condition of an aging and far-flung prison infrastructure.” He further wrote, “But having thought through many of these issues with my Study Group colleagues, especially our legislative members, I can report to you that some meaningful answers to this question are not just possible; they are within our grasp.”

Prisons without justice reform is a hollow victory, and the Ivey Administration is committed to bringing about reasonable reforms.

“Prison infrastructure is a key part of the equation,” said Maiola, “but criminal justice reform is also needed.”

The issues facing Alabama’s prisons and criminal justice system are complex, and generations in the making; therefore, arriving at a universally acceptable solution is not imaginable for the moment if ever. But what once seemed impossible is soon to be realized.

No one gets everything they want, but it’s a great step toward getting what is needed simply because it’s possible.

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Bill Britt

Opinion | Amendment 4: Stairway to heaven or highway to hell?

If you wouldn’t trust that august body to manage your checkbook, reconfigure your last will and testament, or redefine the terms of your car loan, then you should vote no.

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Amendment 4 will appear on the Nov. 3 general election ballot asking the voters to approve a constitutional amendment to remove racist language from the 1901 Constitution and recompile other sections for content and clarity.

If you trust state lawmakers to “recompile” the state’s governing document, then vote yes.

If, however, you wouldn’t trust that august body to manage your checkbook, reconfigure your last will and testament, or redefine the terms of your car loan, then you should vote no.

The question is straightforward. Do you trust this Legislature with this important task?

The ballot measures lead sponsors were Sen. Rodger Smitherman and Rep. Merika Coleman, both Black Democrats, and it was passed with an overwhelming majority in both the House and Senate. This would seem to give legitimacy to the claim that at its heart, this is a referendum to remove racist language from the state’s Constitution.

However, Amendment 4 is a Trojan horse to allow the state Legislature to manipulate the state’s Constitution using past racism as cover. (Let’s not forget the recent racially charged monuments preservation act.)

This Amendment isn’t a benign effort to cleaning up the Constitution; it is a way for lawyers, lobbyists and lawmakers to rewrite the Constitution using sleight-of-hand.

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After speaking about the need to eliminate racist words in the Constitution, Coleman actually points to the real reason the Republican supermajority supported the measure.

“Coleman said it’s not just a social issue,” according to reporting by Mary Sell. “But an economic development issue ‘for those of us who want to bring industry, new ideas, new technology, new research, new employees that are diverse into the state of Alabama.'”

The driving force behind the so-called recompilation is mostly about money, bringing more in and for the government to spend it more easily.

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Eradicating racism from the state’s Constitution is a noble effort, but not if it opens the flood gates to more mischief.

In 2012, the Legislature offered a more narrow amendment which claimed to remove racist language from the Constitution only to have it revealed that it also eliminated a child’s right to a state-provided public education.

About that Amendment, also known as Amendment 4, then-Sen. Hank Sanders wrote, ”It proposes to remove racist provisions from the Alabama Constitution that have no real legal impact.”

The indent of the 2012 measure was to do away with a child’s right to public education; removing racist language was simply bait for the unaware.

The same is true of the current Amendment 4 because the offensive words have no bearing on how the state is governed.

The U.S. Constitution contains racist language and holds racist ideals, but they no longer have the weight of law.

“Consider the 14th Amendment. No part of the Constitution speaks more forcefully to the power of law to transform social relations,” notes Richard Albert, a constitutional law professor at The University of Texas at Austin. “It guarantees that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ And yet the Constitution still today counts a slave as ‘three-fifths’ of a person.”

“The First Congress debated whether a constitutional amendment should entail changes to the original text but ultimately chose to record changes in the higher law as sequential amendments to the end of the document,” according to Albert.

The founders determined it was best to leave offense clauses in the text and add amendments to the end; Alabama has followed their example.

Hurtful words matter and should be condemned but protecting citizens from a Legislature who would exploit constitutional change for their own benefit is also dangerous.

Removing racist language from the state’s constitution is morally right, but not if it lets deceptive lawmakers legalize unethical conduct. The state shouldn’t exchange one wrong for another.

Those who support Amendment 4 say that it will not change the Constitution; just cleans it up by removing all racist language; deleting duplicative and repealed provisions; consolidating provisions regarding economic development; and arranging all local amendments by county of application. And nothing in the amendment permits more money to be spent on economic development than is currently available. Those who want to foster greater commercial growth believe that condensing and clarifying sections of the Constitution will help define Alabama as a more business-friendly state.

However, anyone with a rudimentary understanding of textural construct knows that merely moving a comma can dramatically change a sentence’s meaning. Consider the many tricks which can occur with a cut and paste constitution.

For example, “I say to you today, I’m going to give you a million dollars.” That statement means at some point in the future, I’ll give you the money. But, “I say to you, today I’m going to give you a million dollars.” That means you’re going to get cash now. One little comma makes a lot of difference.

Alabama’s 1901 Constitution is some 800 pages long. How many lawmakers have read it; how many will read the “recompiled” Constitution? Most? Like none.

The Legislature asks us to suspend disbelief, pretending that nothing nefarious is going on and that they are sincere, and their intentions are good.

Sincerity is no guarantee of honesty, and as for good intentions, we all know where that leads.

Rock songs say there is a stairway to heaven and a highway to hell. Obviously, rockers understand the traffic patterns better than our lawmakers.

Amendment 4 is a fraud that will weaken the state and lead to further legalized corruption.

The ballot measure is in fact about money and power under the guise of racial equity.

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Bill Britt

Opinion | Gov. Kay Ivey didn’t cave

Ivey stood her ground on Wednesday, refusing to cave to those who want to end the mask order.

Bill Britt

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Gov. Kay Ivey held a Coronavirus update Press Conference Wednesday September 30, 2020 in Montgomery, Ala. (Governor's Office/Hal Yeager)

Gov. Kay Ivey extended the statewide mandatory mask ordinance on Wednesday despite pressure from her party’s right-wing. Nationally and here in Alabama, many Republicans have complained that any restrictions on their behavior during the COVID-19 outbreak is a violation of their individual liberty.

Ivey stood her ground on Wednesday, refusing to cave to those who want to end the mask order. For most of the COVID-19 pandemic here in the state, Ivey has followed health experts’ advice rather than politicos. Standing up to the Republican Party’s right-wing is not an easy task even in the best of times, but these days, with the party more radicalized than ever, Ivey is taking a huge political risk.

But like Shadrach, Meshach and Abednego, she hasn’t bowed, she hasn’t bent, and she hasn’t burned.

These are divisive times when even the best of people seem to be at war over the nation’s direction.

“Give me liberty or give me death” may have been a great rallying cry in 1776; it’s less persuasive as a public health policy.

Lately, some Alabama conservatives sound more like the John Birch Society members than the Republican Party of just a few years ago.

“In the name of fighting the coronavirus, more and more state governors are ruling by decree, curtailing freedoms and ordering residents to stay at home,” says the Birch website.

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The Republican Party in the 1960s deemed Birchers dangerous and severed ties with the group. But like 60s racism, Red-baiting and a fear that socialist are lurking behind every corner, all that’s old is new again.

Not surprisingly, former Alabama Supreme Court Chief Justice Roy Moore is one of the leading voices in the fight to discredit the Ivey administration’s COVID orders.

Senate President Pro Tem Republican Del Marsh is part of the anti-masker movement and has suggested he’d like to see more people become infected to build the state’s overall immunity to the virus.

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Marsh is certainly not alone; there is a motivated mop of miscreants who sees any restriction as an affront to them doing anything they please. Perhaps they can refuse to wear a seatbelt or maybe light up a cigar the next time they are dinning at the county club and show some real radical resistance.

The truth is many of those who condemn masks as an intrusion on personal freedom would happily compel their fellow citizens to pray at school and stand for the national anthem. They are more than willing to regulate liberties when it contradicts their opinion of what is good and wholesome. But heaven forbid they wear a mask to protect others—that is one regulation too far.

Like a pubescent boy, they live in a fantasy world; without consequences.

Anti-maskers are given to a form of herd mentality, which is part of a broader movement to discredit science for political purposes.

Perhaps the most critical job of a governor or lawmaker is the heath and safety of the public.

Masks protect others more than the wearer, and where the “Golden rule” should apply, it is trampled on just like Jesus’ admonition to love our neighbors as ourselves.

But I suspect that many of those who continuously espouse conspiracies, apocalyptic nightmares, and end time prophecies actually don’t like themselves very much and therefore don’t really care about the shared responsibilities we have toward others.

Writing for Business Insider, George Pearkes explains the four different types of liberty, according to David Hackett Fischer’s Albion’s Seed to explain mandatory mask orders.

“Efforts to require masks are a straightforward expression of ordered liberty,” writes Pearkes. “The concept of ordered liberty argues that without structure and a set of rules which are enforced for the common good, society would devolve into chaos.” He further concludes that “Mask orders are quite literally saving society from itself, so that we can be more free than we would if COVID spread even further and faster.”

Ordered liberty can be seen at the heart of Ivey’s policies during the coronavirus plague.

But for anti-maskers, “Live Free or Die” means they are free to do what they want, even if it kills you.

Ivey is putting people ahead of politics. We should wish more would follow her example.

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Bill Britt

Opinion | In Alabama, the past is prologue

Even after 200 years, Alabama’s political approach hasn’t changed much; the fundamentals established by its founders are still evident in everyday politics.

Bill Britt

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Like people, governments have pasts, and today’s fortunes are either furthered or frustrated by the things that came before. It might be said that even history leaves DNA.

Understanding Alabama’s past is essential to navigating its future because its government’s origins determine that the past is prologue.

Even after 200 years, Alabama’s political approach hasn’t changed much; the fundamentals established by its founders are still evident in everyday politics.

Those who observe Alabama’s governing process closely see the same structural problems impede progress year after year. Resistance to home rule and a regressive tax system are just two of the many roadblocks to a more prosperous state.

Some unresolved issues are due to a lack of leadership, but others are inherent within the state’s original governing procedures. Even the state’s architects’ elitist attitude is still prevalent with near total power given to a Legislature dominated by one-party rule. The earlier settlers’ prejudices are enshrined in every process of governing.

Failure to understand, acknowledge, and change the state’s historical patterns hinders advancement, leaving the state nearly dead last in every metric of success. It doesn’t have to be this way, but the cure is always met with fierce rejection because beyond admitting ingrained inequities, any change would upend 200 years of consolidated power.

When Republicans promised a new day in Alabama politics in 2010, some sincerely believed that change was possible. Still, after nearly a decade of Republican one-party rule, there isn’t a substantial difference in governing practice.

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It’s not because good people haven’t tried to make a difference; it’s that there are systematic flaws that thwart reformers while rewarding the status quo.

A region’s founders and its dominant settlers are the creators of what can be called a state’s DNA. Alabama’s government still reflects the make-up of its original colonizers.

Much of the Deep South was established by slave owners who intended to recreate a society based on the Caribbean colonies of Great Britain.

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In his 2011 non-fiction work American Nations: A history of the eleven rival regional cultures of North America, Colin Woodard shows how Deep South states were “Marked by single-party rule, the domination of a single religious denomination, and the enshrinement of a racial caste system for most of its history.” He also writes that these cultures supported regulation on personal behavior while opposing economic restraint.

Today, Alabama’s governance framework and, to a lesser degree, its society is much like the Deep South characteristics Woodard describes.

One Party rule.

A dominant religion.

A racial caste system.

And a willingness to impose regulations on personal behavior while opposing almost every economic restrictions.

Woodward’s findings mirror Alabama’s state government.

Alabama’s central governing power is based on a top-down fraternity where a privileged few hold the reins of authority with a whip hand ready to strike.

Even before statehood, Alabama was regulated by an upper class who built the territory’s economy slave labor. The same class gained even more control after statehood.

“By the antebellum period, Alabama had evolved into a slave society, which…shaped much of the state’s economy, politics, and culture,” according to the Encyclopedia of Alabama.

Slaves accounted for more than 30 percent of Alabama’s approximately 128,000 population when it was granted statehood in 1819. “When Alabama seceded from the Union in 1861, the state’s 435,080 slaves made up 45 percent of the total population,” writes Keith S. Hebert.

The state is currently home to approximately 4.9 million individuals. If 45 percent were slaves today, that would account for around 2.2 million people in bondage.

After the South lost the Civil War, Reconstruction ushered in an era where “a larger number of freed blacks entered the state’s electorate and began voting for the antislavery Republican Party,” according to Patrick R. Cotter, writing for the Encyclopedia of Alabama.

But the old establishment fought back and instituted the 1901 Constitution, which permanently ended any challenge to one-party rule and restored white supremacy in government.

A major feature of the new constitution was a poll tax and literacy tests and other measures to disenfranchise Black people and poor whites.

As Republicans reminded voters in the 2010 campaign cycle, Democrats controlled Alabama politics for 136 years. But these were not liberals; far from it. Alabama’s old Democratic Party for generations was home to racists, not radicals.

It was only over time that the Democratic Party became the diverse collation it is today.

With Republicans holding every state constitutional office and the Legislature, the one-party rule continues as it has throughout the state’s history; only the name has changed.

Looking back over the founding years of Alabama’s history, barbarity is searing, and the atrocities unimaginable. Yet, the fact remains that these early framers thought nothing of enslaving Blacks or treating poor whites as little more than chattel. It shocks our modern sensibilities as it should. Still today, the state continues in a system of government steeped in framers’ institutionalized prejudices.

Famously 19th-century British politician Lord Acton said, “Power tends to corrupt, and absolute power corrupts absolutely.”

Alabama’s fathers wanted a government that gave absolute power to the few at the expense of the many; that is as true now as it was then.

There is a path to a better government, but as Lord Acton also said, “Great men are almost always bad men.”

History may not repeat itself, but politics does, and that is why Alabama’s history is prologue for today.

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