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Alabama judicial override safe from Supreme Court review

Chip Brownlee | The Trace

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By Chip Brownlee
Alabama Political Reporter

MONTGOMERY—The US Supreme Court on Monday refused to hear a challenge to Alabama’s system of judicial override for the death penalty from several death-row inmates in the State.

In a list of orders on pending cases released Monday, the Court denied certiorari in the case of Thomas Arthur v. Alabama. Arthur and two other death-row inmates petitioned the high court in November to review Alabama’s death row laws.

Those laws allow judges in the State impose the death penalty in some capital murder cases, even when the jury refused to impose the death penalty.

Last year, the Yellowhammer State became the last state in the US to have judicial override after the US Supreme Court ruled against a similar law in Florida. Over the next several months, the Florida Supreme Court and the Delaware Supreme Court killed judicial override in two out of the last three states with the provision.

Arthur escaped death for the seventh time in November when the US Supreme Court Chief Justice issued a stay from the Court on the night of the 74-year-old’s scheduled execution. That night, Arthur’s attorneys filed two briefs before the Court.

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The petition for writ of certiorari denied Monday asked the Court to review the death penalty sentencing laws, which Arthur argued were unconstitutional based on the Supreme Court’s January 2016 decision in Hurst v. Florida.

Another petition, which is still before the Court, asks the Court to review Arthur’s request for an alternative form of execution beside Alabama’s lethal injection cocktail. Arthur believes Alabama’s three-drug lethal injection regimen would be cruel and unusual, violating the Eighth Amendment.

In Hurst v. Florida, the Court ruled Florida’s judicial override laws were unconstitutional. That law, like Alabama’s, allowed trial court judges to overturn a jury’s verdict of life.

Attorney General Luther Strange said Monday in a statement that Alabama’s judicial override sentencing law is different from Florida’s and that the Court’s decision was a victory.

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“The US Supreme Court’s denial of certiorari … is a reaffirmation that Alabama’s death sentencing law is constitutional,” Strange said. “Convicted murders [sic] have repeatedly challenged Alabama’s death penalty sentencing system because it allows for judicial override similar to Florida’s law.”

Alabama’s law, unlike Florida’s, requires that a jury unanimously “find an aggravating factor at either the guilt or sentencing stage” before determining a death sentence. In other words, judges can’t impose the death penalty without at least some input from the jury.

In the Hurst decision, the Court applied a 2002 decision that found that a jury must find the “aggravating factors” necessary for imposing the death penalty. Florida’s laws did not require the jury’s input on those factors.

Aggravating factors are often whether the murder occurred during the course of a robbery, burglary or kidnapping — or whether the defendant was “under sentence of imprisonment,” as was Arthur’s case.

That small provision present in Alabama’s criminal procedure giving juries the responsibility to find those “aggravating factors” likely saved the State’s sentencing system, though the Court’s exact reason is unknown.

For Alabama, Strange said, it’s still a victory.

“It should, therefore, be clear to all that Alabama’s death penalty sentencing system is constitutional,” Strange said.

But even with Monday’s legal victory, Alabama’s system remains the only “hybrid sentencing system” in the country. Juries give a nonbinding advisory sentence — either for death or for life — and the judge then makes the final determination.

In Arthur’s case, his trial jury voted 11-1 for an advisory verdict of death, but the vote wasn’t unanimous, as most other states’ death-penalty sentences require.

Since 1976, more than 92 percent of 107 overrides have resulted in a judge imposing the death penalty when a trial jury voted to recommend life in prison, according to Montgomery’s Equal Justice Initiative.

And it’s not just the Supreme Court reviewing judicial override in the State. The Legislature will take it up next month as well. Sen. Dick Brewbaker, R-Montgomery, has prefiled a bill intended to abolish the practice.

Many expected the Court to take up the challenge based on the previous successful challenge in Hurst. In the Hurst case, Alabama’s own solicitor general submitted an amicus curiae brief to the Court urging them not to strike down Florida’s system because it would likely strike Alabama’s down as well.

And in Harris v. Alabama, a 1995 Supreme Court decision upholding Alabama’s death penalty, the Court noted that Alabama’s system was “based on Florida’s sentencing scheme.”

Despite the similarities, Chief Justice Roberts hinted in November that the Court would likely refuse Arthur’s request for certiorari in the case, noting that he agreed to issue the stay as a “courtesy” to the other justices who wanted time to review the case.

“The claims set out in the application are purely fact-specific, dependent on contested interpretations of state law, insulated from our review by alternative holdings below, or some combination of the three,” Roberts said at the time.

Two other justices, Associate Justices Samuel Alito and Clarence Thomas, voted against a stay in November, foreshadowing Monday’s decision.

The Court has not yet issued a decision on whether they will grant Arthur’s other petition for certiorari, which originated from a denied appeal to an Alabama US District Court and then another appeal to the US 11th Circuit Court of Appeals.

In his appeal in the US District Court, Arthur suggested a firing squad or another lethal execution drug, Pentobarbital, as alternatives to the State’s controversial three-drug lethal injection regimen.

Arthur’s attorneys argued that Midazolam, the first of three drugs in Alabama’s cocktail, would fail to do its job of sedating the inmate to prevent pain during the induction of the two other live-taking drugs, violating the Eight Amendment’s prohibition on cruel and unusual punishment.

In 2014, the US Supreme Court ruled 5–4 that the use of Midazolam as a sedative was not unconstitutional, allowing its use to continue, but Arthur argues that he has a preexisting heart condition that would render Midazolam ineffective.

The federal judge hearing Arthur’s case in US District Court rejected Arthur’s argument because he said Arthur had not identified an alternative drug regimen and a firing squad isn’t a prescribed form of execution under current Alabama law.

Arthur will now wait as the US Supreme Court looks over the submitted briefs in the pending case and decides whether they will grant review.

Last year, two death-row inmates — Christopher Brooks in January and Ronald Smith in December — were executed in Alabama after a near-three-year lull in executions, which began out of the rising scarcity of Midazolam and pending court litigation.

After the Court affirmed Midazolam, executions resumed, and Arthur was supposed to be the second on the list.

The Alabama Supreme Court has set seven different execution dates since Arthur was first convicted of the 1982 murder-for-hire of Muscle Shoals businessman Troy Wicker, and Arthur outlived them all.

If the justices of the US Supreme Court choose not to review the case, the stay delaying Arthur’s execution will expire and the Alabama Supreme Court will be able to reschedule Arthur’s execution.

Chip Brownlee is a former political reporter, online content manager and webmaster at the Alabama Political Reporter. He is now a reporter at The Trace, a non-profit newsroom covering guns in America.

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Tuberville calls for term limits, balanced budget and lobbying reform

Tuberville has also made a major media buy across the state to trumpet this message.

Brandon Moseley

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Republican Senate candidate Tommy Tuberville (TUBERVILLE CAMPAIGN)

Senate candidate Tommy Tuberville’s campaign began emphasizing key structural reforms that the Republican nominee hopes to advance if elected to the U.S. Senate including congressional term limits, withholding lawmakers’ paychecks unless a balanced budget is passed and a ban on former officials becoming lobbyists.

“Only an outsider like me can help President Trump drain the Swamp, and any of the proposals outlined in this ad will begin the process of pulling the plug,” Tuberville said in a statement. “Doug Jones has had his chance, and he failed our state, so now it’s time to elect a senator who will work to fundamentally change the way that Washington operates.”

Tuberville has also made a major media buy across the state to trumpet this message.

“You know Washington politicians could learn a lot from the folks in small town Alabama, but Doug Jones … he’s too liberal to teach them,” Tuberville added.

Polls consistently show that term limits are popular with people across both political parties, but the U.S. Supreme Court has ruled that imposing term limits would be adding a qualification to be a member of Congress and that can only be done by constitutional amendment.

It is an unspoken truth that when Americans send someone to Congress they never come back. They either keep getting re-elected like Alabama’s own Sen. Richard Shelby, who is in his sixth term in the Senate after four terms in the U.S. House of Representatives. On the other hand, they may become lobbyists getting paid to influence their colleagues on behalf of corporations, foreign governments or some well funded non-government organization.

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Tuberville said he would ban that practice.

A balanced budget amendment almost passed in the 1980s and again in the 1990s.

Since that failure, Congress has increasingly passed bigger and bigger budget deficits. The U.S. government borrowed more money during the eight years of President George W. Bush’s presidency than the government had borrowed in the first 224 years of the country combined.

President Barack Obama followed and the TARP program propped up the post-Great Recession economy. Rather than cutting the deficit, President Donald Trump invested billions in the military and a tax cut without cutting domestic spending. The 2020 coronavirus crisis has further grown the budget.

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The government has borrowed trillions to prop up the economy and provide stimulus while investing billions into medical research and treating the virus victims. Congress is currently debating a fifth stimulus package that would add more to the deficit.

Both a balanced budget amendment and a term limits amendment would have to be ratified by the states if passed by Congress. Tuberville is challenging incumbent Sen. Doug Jones, D-Alabama.

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House passes General Fund Budget

Brandon Moseley

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By Brandon Moseley
Alabama Political Reporter

The Alabama House of Representatives passed the state General Fund Budget on Tuesday.

The General Fund Budget for the 2019 fiscal year is Senate Bill 178. It is sponsored by Sen. Trip Pittman, R-Montrose. State Rep. Steve Clouse, R-Ozark, carried the budget on the House floor. Clouse chairs the House Ways and Means General Fund Committee.

Clouse said, “Last year we monetized the BP settlement money and held over $97 million to this year.”

Clouse said that the state is still trying to come up with a solution to the federal lawsuit over the state prisons. The Governor’s Office has made some progress after she took over from Gov. Robert Bentley. The supplemental we just passed added $30 million to prisons.

The budget adds $50 million to the Department of Corrections.

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Clouse said that the budget increased the money for prisons by $55,680,000 and includes $4.8 million to buy the privately-owned prison facility in Perry County.

Clouse said that the budget raises funding for the judicial system and raises the appropriation for the Forensic Sciences to $11.7 million.

The House passed a committee substitute so the Senate is either going to have to concur with the changes made by the House or a conference committee will have to be appointed. Clouse told reporters that he hoped that it did not have to go to conference.

Clouse said that the budget had added $860,000 to hire more Juvenile Probation Officers. After talking to officials with the court system that was cut in half in the amendment. The amendment also includes some wording the arbiters in the court lawsuit think we need.

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The state General Fund Budget, SB178, passed 98-1.

Both budgets have now passed the Alabama House of Representatives.

The 2019 fiscal year begins on Oct. 1, 2018.

In addition to the SGF, the House also passed a supplemental appropriation for the current 2018 budget year. SB175 is also sponsored by Pittman and was carried by Clouse on the floor of the House.

SB175 includes $30 million in additional 2018 money for the Department of Corrections. The Departmental Emergency Fund, the Examiners of Public Accounts, the Insurance Department and Forensic Sciences received additional money.

Clouse said, “We knew dealing with the federal lawsuit was going to be expensive. We are adding $80 million to the Department of Corrections.”

State Representative Johnny Mack Morrow, R-Red Bay, said that state Department of Forensics was cut from $14 million to $9 million. “Why are we adding money for DA and courts if we don’t have money for forensics to provide evidence? if there is any agency in law enforcement or the court system that should be funded it is Forensics.”

The supplemental 2018 appropriation passed 80 to 1.

The House also passed SB203. It was sponsored by Pittman and was carried in the House by State Rep. Ken Johnson, R-Moulton. It raises securities and registration fees for agents and investment advisors. It increases the filing fees for certain management investment companies. Johnson said that those fees had not been adjusted since 2009.

The House also passed SB176, which is an annual appropriation for the Coalition Against Domestic Violence. The bill requires that the agency have an operations plan, audited financial statement, and quarterly and end of year reports. SB176 is sponsored by Pittman and was carried on the House floor by State Rep. Elaine Beech, D-Chatham.

The House passed Senate Bill 185 which gives state employees a cost of living increase in the 2019 budget beginning on October 1. It was sponsored by Sen. Clyde Chambliss, R-Prattville and was being carried on the House floor by state Rep. Dimitri Polizos, R-Montgomery.

Polizos said that this was the first raise for non-education state employees in nine years. It is a 3 percent raise.

SB185 passed 101-0.

Senate Bill 215 gives retired state employees a one time bonus check. SB215 is sponsored by Senator Gerald Dial, R-Lineville, and was carried on the House floor by state Rep. Kerry Rich, R-Guntersville.

Rich said that retired employees will get a bonus $1  for every month that they worked for the state. For employees who retired with 25 years of service that will be a $300 one time bonus. A 20-year retiree would get $240 and a 35-year employee would get $420.

SB215 passed the House 87-0.

The House passed Senate Bill 231, which is the appropriation bill increase amount to the Emergency Forest Fire and Insect and Disease Fund. SB231 is sponsored by Sen. Steve Livingston, R-Scottsboro, and was carried on the House floor by state Rep. Kyle South, R-Fayette.

State Rep. Elaine Beech, D-Chathom, said, “Thank you for bringing this bill my district is full of trees and you never know when a forest fire will hit.

SB231 passed 87-2.

The state of Alabama is unique among the states in that most of the money is earmarked for specific purposes allowing the Legislature little year-to-year flexibility in moving funds around.

The SGF includes appropriations for the Alabama Medicaid Agency, the courts, the Alabama Law Enforcement Agency, the Alabama Department of Corrections, mental health, and most state agencies that are no education related. The Alabama Department of Transportation gets their funding mostly from state fuel taxes.

The Legislature also gives ALEA a portion of the gas taxes. K-12 education, the two year college system, and all the universities get their state support from the education trust fund (ETF) budget. There are also billions of dollars in revenue that are earmarked for a variety of purposes that does not show up in the SGF or ETF budgets.

Examples of that include the Public Service Commission, which collects utility taxes from the industries that it regulates. The PSC is supported entirely by its own revenue streams and contributes $13 million to the SGF. The Secretary of State’s Office is entirely funded by its corporate filing and other fees and gets no SGF appropriation.

Clouse warned reporters that part of the reason this budget had so much money was due to the BP oil spill settlement that provided money for the 2018 budget and $97 million for the 2019 budget. Clouse said they elected to make a $13 million repayment to the Alabama Trust fund that was not due until 2020 but that is all that was held over for 2020.

Clouse predicted that the Legislature will have to make some hard decisions about revenue in next year’s session.

 

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Day Care bill delayed for second time on Senate floor, may be back Thursday

Sam Mattison

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By Samuel Mattison
Alabama Political Reporter

The day care bill, which would license certain day care centers in Alabama, was once again delayed on the state Senate floor after one lawmaker requested more information.

Its brief appearance Tuesday ended with state Sen. Gerald Dial, R-Lineville, saying a compromise had not yet been worked out with the bill’s detractors.

Alabama’s Senate has been hesitant to act on the legislation because of complaints of state Sen. Shay Shelnutt, R-Trussville, who has been an opponent of the bill since its introduction last year. The bill’s delay on Tuesday marks the second time its been taken off the Senate’s agenda.

The bill has had a rocky time in this year’s session, but the bill’s sponsor state Rep. Pebblin Warren, D-Tuskegee, said she is still confident about its passage out of the Legislature.

Warren, D-Tuskegee, filed the bill this session with the support of influential lawmakers including Gov. Kay Ivey, who told reporters last year that she though all day cares should be licensed.

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Mainly sparked by the death of 5-year-old boy in the care of a unlicensed day care worker, the bill had great momentum coming into this year’ session.

Despite the growing support from lawmakers, Religious groups had concerns that the bill would increase state-sponsored reach into religious day cares in churches and non-profit groups.

Spearheading the dissenters was Alabama Citizens Action Program, a conservative religious-based PAC.

Warren, proponents, and ALCAP announced a compromise to the bill while it was still in the Alabama House.

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Announced by ALCAP originally, the new bill was a weaker version in that it did not require that all day cares in the state be regulated. Instead, religious-based day cares would only need to be registered if they received federal funds. At a Senate committee meeting in February, Warren said a similar requirement was about to come from federal law in Congress.

The bill moved through the House in a overwhelming vote in favor of the proposal and passed unanimously out of a Senate committee a few weeks ago.

Warren, speaking to reporters after its passage from the House, said she was unsure if the bill would encounter resistance in the upper chamber.

It was the Senate that killed the daycare bill last year amid a cramped last day where senators took the bill off the floor. The bill may face similar complications this year, as lawmakers seem to be preparing to adjourn within a few weeks.

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Fantasy sports bill fails on Senate floor

Sam Mattison

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By Samuel Mattison
Alabama Political Reporter

Would-be Fantasy Sports players in Alabama will have to wait to legally play in the state following a Senate vote on Tuesday.

The Alabama Senate decisively killed a bill to exempt fantasy sports from the state’s prohibition on gambling.

Not even entertaining a debate on the Senate floor, the proposal was killed during a vote for the Budget Isolation Resolution, which is usually a formality vote preluding a debate.

Fantasy sports are contests where participants select players from real teams to compete on fantasy teams using the real-world players’ stats.

Since 2016, the practice has been illegal in Alabama following a legal decision by the Attorney General’s Office that categorized it as gambling.

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The bill’s sponsor, state Sen. Paul Sanford, R-Huntsville, predicted the bill’s failure during a committee meeting two weeks ago, where the bill passed unanimously.

Sen. Paul Sanford speaks to reporters after a Senate Committee meeting on Feb. 28, 2018. (Samuel Mattison/APR)

Speaking to reporter’s after the committee meeting, Sanford said the decision to file the bill was mainly a philosophical belief that the practice shouldn’t be illegal.

Sanford, a fantasy sports player before its ban, said that fantasy sports are a way to bring people closer together and not a means to win money. The Huntsville senator is not seeking re-election.

The bill’s failure in the Senate follows its trajectory last year too. A similar version of the bill, also sponsored by Sanford, failed in the Senate during the final days of the 2017 Legislative Session.

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Since Sanford is retiring, it is unclear if the bill will even come back next session, or if it will even have a Senate sponsor.

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