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Legislature

Alabama advocates hope to reintroduce legislation reforming civil asset forfeiture

Gabby Dance

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Innocent until proven guilty is heralded as a rightful standard in the United States criminal justice system, but when it comes to civil asset forfeiture, the standard seemingly flips to the opposite.

Under Alabama’s civil asset forfeiture policies, police are able to seize personal property from citizens without a criminal charge or conviction if they find probable cause to believe the property could be connected to a crime.

In order to regain their property, owners not convicted of crimes must go through a court process to prove the property was not connected to a crime. Even then, it may take months or years to receive their property, if they ever get it back.

Because of this, Alabama’s civil asset forfeiture laws have been rated among the worst in the nation by the Institute for Justice.

According to Executive Director of Alabama Appleseed Center for Law and Justice Carla Crowder, this practice harms low-income Alabamians who may not have the necessary funds to hire a lawyer. For these people, having money or cars taken away can be extremely detrimental.

“What we found is that a lot of people, even though their money or their property is taken, and they are not convicted of a crime, don’t have the resources to hire an attorney so they don’t go to court to challenge that forfeiture,” Crowder said. “So, they end up losing a lot of property or their money.’

The practice gained federal popularity during the so-called “War on Drugs” of the 1980s as a means to fight organized crime. However, Crowder said it has evolved to target ordinary citizens with no criminal intentions.

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“You can be someone who doesn’t have a bank account, you’re driving down the road, you get pulled over in a traffic incident and the police find $1,500 in the car because you’ve just cashed a paycheck,” Crowder said. “When the officer sees the cash, he or she can take it. The police are taking small amounts of cash and property and not having to prove people were involved in a crime, much less some kind of big, criminal enterprise.”

According to a study by the Southern Poverty Law Center, the amount of cash seized in half of Alabama’s 1,100 examined civil asset forfeiture cases was under $1,372.

Government entities in Alabama have historically not been required to report what they have taken or what they have done with the unclaimed property.

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“It just should be a given that when the government takes citizen’s property, we should know what they’re doing with it,” Crowder said. “They should have to report what they take, what they keep, how they use it.”

Alabama takes step to create civil asset forfeiture database

According to Crowder, this can potentially lead to abuse by officers, who could take proceeds from federal forfeiture actions for themselves.

“This is an example where police agencies, instead of pursuing fairness and justice, are pursuing profits,” Crowder said. “That’s just now how the criminal justice system should work. The system should be designed to keep communities safer and treat people fairly, not for police officers to make a profit off of innocent citizens’ property.”

Last year, legislation calling for a criminal conviction to be required in order to seize property, protection of property owners and transparency of the process was introduced by state Sen. Arthur Orr, R-Decatur, and state Rep. Arnold Mooney, R-Birmingham.

This legislative session, advocates are planning to introduce another similar bill.

“We do expect that bill to be filed,” said SPLC staff attorney Emily Early.

The omnibus bill would essentially end the practice of civil asset forfeiture, grouping it into criminal proceedings.

“There would be a requirement of a criminal conviction for any forfeiture of property or proceeds to occur,” Early said.

Civil asset forfeiture reform has been a recent nationwide trend.

A current bill requiring a criminal conviction before the forfeiture of property has gained strong support in the South Carolina legislature, and the Arkansas state Senate recently unanimously approved a bill requiring a criminal conviction before civil asset forfeiture.

The Supreme Court also ruled in late February that people who have lost property through civil asset forfeiture can argue that the amount taken was excessive under the eighth amendment of the Constitution, which bars excessive fines.

“Alabama would not be a first to step out there and reform this practice, which we believe is a huge governmental overreach and a violation of an individual’s due process right,” Early said.

Last year’s bill gained bipartisan support but ultimately failed to pass due to law enforcement pushback.

“There was significant opposition from law enforcement, unfortunately, in the state of Alabama, particularly prosecutors such as district attorneys who are opposed to ending civil asset forfeiture and believe that civil asset forfeiture is a necessary means to fight crime,” Early said. “Our position in introducing the bill that would end civil asset forfeiture … is that it is completely possible to fight crime and to really get at the higher-level criminal perpetrators without taking away property when there is no sort of crime, charge or conviction.”

Though a potential future bill has not been brought into play yet, progress toward accountability with civil asset forfeiture has been made.

Last week, the Alabama Districts Attorneys Association, alongside Mooney, the Alabama Law Enforcement Agency and other public policy groups, began taking steps toward creating a reporting system to keep track of the use of civil asset forfeiture in Alabama.

The Alabama Forfeiture Accountability System will track and compile all state civil asset forfeiture cases, generate reports to lawmakers and state officials and provide information on the use of civil asset forfeitures to the public.

District attorneys across the state started collecting data related to civil asset forfeiture, including filings, pleadings and court rulings, on March 1 to submit to the database.

“This has been a work in progress since last spring, when legislation to create a data collection and reporting system for civil asset forfeiture system died when time ran out on the legislative session,” said Barry Matson, executive director of the Alabama District Attorneys Association and the state Office of Prosecution Services. “But we continued to work with many groups – from law enforcement and state agencies to policy groups with an interest in asset forfeiture – to voluntarily put the system in place.”

Mooney hopes that this will aid lawmakers in supporting a future bill.

“I can’t overstate the importance to lawmakers of having accurate, reliable information as we look legislatively at civil asset forfeitures,” Mooney said. “This new system will help paint a clearer picture of what is actually going on in the state.”

Though the new database shows progress, the SPLC’s Shay Farley said legislative change is still necessary to ensure the government is protecting individual property and due process rights.

“Increasing government transparency is always a positive step but as they say: ‘the devil is in the details,’” Farley said. “Information about how much revenue is collected in Alabama civil asset forfeiture cases or how those funds are used by the receiving governmental entities throughout the state has always been secret, and it’s not clear this will change in this new system.”

 

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Economy

Likely Republican primary voters reject Poarch Creeks “winning” plan

Bill Britt

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A survey of likely Republican primary voters obtained by APR shows that a majority do not support giving the Poarch Band of Creek Indians a monopoly over gaming in the state despite the tribe’s promise of a billion dollars.

Over the last several months, PCI has orchestrated a massive media blitz to convince Alabamians that they have a winning plan for the state’s future in exchange for a Tribal-State compact and exclusive rights to Vegas-style casino gaming.

The survey commissioned by the Republican House and Senate caucuses and conducted by CYGNAL, a highly respected Republican polling firm, found that only 34.1 percent of likely Republican primary voters are buying what the tribe is selling. On the contrary, nearly 50 percent of Republicans oppose the plan, with almost 40 percent voicing strong opposition.

Of those surveyed, females are against the plan by nearly 50 percent, with men weighing-in at almost 60 percent unfavorable to PCI’s proposal.

Perhaps most significant is that PCI’s monopoly plan was widely rejected in areas where the tribe already operates casinos. In the Mobile area, nearest Windcreek Atmore, over half of Republicans see a monopoly unfavorably. The same is true in the Montgomery area, where PCI has two gaming facilities.

Not a single big city surveyed in the state held a favorable view of PCI’s plan with Birmingham and Huntsville rejecting the tribal monopoly by almost 50 percent.

Very conservative, somewhat conservative and moderate voters didn’t view the plan as positive.

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Ninety-one percent of respondents said they defiantly would be voting in the upcoming Republican primary on March 3.

PCI has lavished money on media outlets throughout the state, garnering favorable coverage, especially on talk radio and internet outlets. The tribe has also spent freely on Republican lawmakers.

Perhaps some good news for PCI is that Republican primary voters believe that state legislators are more likely to represent special interests above the interests of their constituents.

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PCI lobbyists continue to push the tribe’s agenda at the State House in defiance of Gov. Kay Ivey’s call for no action on gaming until her study group returns its findings.

The survey found that Ivey enjoys a 76.3 percent favorability rating among likely Republican primary voters.

 

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House

McCutcheon not optimistic about passage of “constitutional carry” legislation

Brandon Moseley

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Alabama House Mac McCutcheon, R-Monrovia, discussed gun legislation that could appear before the House of Representatives this year.

In past sessions, constitutional carry legislation has made it out of the Alabama Senate, but stalls in the House. This year, Rep. Andrew Sorrell, R-Muscle Shoals, is carrying the bill in the House. APR asked McCutcheon whether he anticipates it passing this time.

“The mood would tend to be the same that it was in the past,” McCutcheon said. “There is a bill out there now for a lifetime carry permit and a procedural check for a permit.”

McCutcheon said that under that bill a state database would be used for granting concealed carry permits instead of a local database. Each sheriff of each county would be doing things the same way by ALEA (the Alabama Law Enforcement Agency) being involved in this.

McCutcheon said that the House is “taking a very serious look at that bill.”

State Sen. Randy Price, R-Opelika, and State Representative Proncey Robertson, R-Mt. Hope, pre-filed the lifetime permit bill that would establish a cohesive and statewide management level process for administering and managing concealed weapons permits in the state of Alabama. The National Rifle Association has endorsed this legislation.

Robertson’s House version is HB39. It has been assigned to the House Public Safety and Homeland Security Committee where it is awaiting action. Price’s Senate version is SB47. It has been assigned to the Senate Judiciary Committee where it is also awaiting action in committee.

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Currently, the application process and managing of applicants is different county by county. Some rural county sheriffs have issued concealed carry permits, sometimes called pistol permits, without doing background checks. This resulted last year in federal authorities revoking Alabama concealed carry permit holders from being able to buy firearms without having to go through the background check system.

The sponsors promise that this legislation would create a streamlined process of standards for Sheriff Departments to implement and will be monitored by the Alabama Law Enforcement Agency (ALEA). This bill creates a cohesive standard for background checks and will bring 21st century technology to Sheriff’s departments and all other law enforcement agencies across the state. Sheriff departments will now have access to electronic information of which all levels of law enforcement will have access to. It will also require municipalities to start reporting those that are convicted of domestic violence as well as Probate Judges to begin reporting individuals that have been involuntarily committed. Applicants will also now have the option to apply for a concealed weapons permit for one year, five years or a lifetime permit.

Sorrell told APR on Saturday that he opposes HB39/SB47 because it creates a statewide database with all of Alabama’s concealed carry holders.

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In the State of Alabama, it is a Class A Misdemeanor to carry concealed weapons without a permit.

Sorrell’s legislation, Constitutional Carry, would eliminate that crime altogether and give every Alabamian the constitutional right to carry a firearm concealed if they so choose.

State Senator Gerald Allen, R-Tuscaloosa, has introduced Constitutional Carry legislation in the State Senate; SB1. That bill has been assigned to the Senate Judiciary Committee where it awaits committee action.

SB1 would allow all Alabama citizens who have not had their gun rights revoked to carry firearms concealed without having to have a concealed carry permit. That legislation could not get out of committee in the Senate last year.

Sorrell told APR that there is momentum in the Alabama House of Representatives for Constitutional Carry and that he hoped to have as many as twenty cosponsors when he introduces his bill.

It is currently legal in Alabama to openly carry firearms without a permit, if your gun rights have not been taken away. A citizen can lose their gun rights due to a felony conviction, being declared mentally unfit by a probate judge, or a misdemeanor domestic violence conviction. While every citizen, who still has gun rights, may openly carry without a concealed carry permit; it is against the law to have a loaded handgun in a vehicle without a concealed carry permit.

Handguns must be unloaded and locked in a box or trunk out of reach. Similarly, if a person is openly carrying a handgun on their side, were to put a jacket on so that the gun was no longer visible that would also be a misdemeanor as they are now carrying concealed, unless they have a valid concealed carry permit allowing them to conceal their handgun. Persons with a concealed carry permit are allowed to have their gun on their person while riding in a motor vehicle or within reach like in the glove box, loaded or not. This does not apply to long guns (rifles and shotguns). All Alabama citizens, who still have their gun rights, may carry their shotgun or rifle with them in their vehicle, without having to obtain a concealed carry permit to exercise that right.

To get your concealed carry permit you must go to the sheriff’s department in your home county. The fee varies from county to county.

Twenty percent of adult Alabamians have a concealed carry permit, the highest rate in the country. The Alabama Sheriff’s Association have steadfastly opposed Constitutional Carry legislation. According to the National Association for Gun Rights, fifteen states, including Mississippi, have Constitutional Carry already.

 

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House

McCutcheon is in “wait and see mode” on medical marijuana bill

Brandon Moseley

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Speaker of the Alabama House of Representatives Mac McCutcheon (R-Monrovia) last Thursday was asked by reporters where he stood on pending medical marijuana legislation.

“I am in a wait and see mode,” McCutcheon told reporters. “The sponsor of the bill has done a lot of work.”

On Tuesday, State Senator Tim Melson (R-Florence) introduced a bill to legalize tightly controlled medical cannabis. The Medical cannabis bill introduced on Tuesday is Senate Bill 165.

“We have a letter from the Attorney General,” recommending that the legislature reject the bill.

Attorney General Steve Marshall (R) is arguing that while marijuana remains a federally controlled substance the legislature should not pass a state law that would be noncompliant with federal law. Marshall believes that if medical marijuana has any medical benefit then the federal Food and Drug Administration (FDA) will be the appropriate authority to approve such legislation and the state should wait for FDA to act.

33 states already have legalized medical marijuana.

“It brings up a legal question when you get a legal opinion from the attorney general office,” McCutcheon explained. “It answers some of my questions and also on the pro and the con there were some questions raised in the legal community.”

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McCutcheon said, “That is why we are in the mode that we are in.”

Melson introduced a medical marijuana bill last year during the 2019 regular session. That bill passed the Senate; but had difficulty getting out of committee in the Alabama House of Representatives. Instead of passing medical marijuana legislation the legislature passed a bill extending Leni’s Law and Carly’s law and establishing the Alabama Medical Cannabis Study Commission tasked with making a recommendation to the legislature.

The Alabama Medical Cannabis Study Commission was chaired by Sen. Melson and met monthly from August to November. In December, the commission voted in favor of a draft proposal recommending that the state allow licensed medical providers to prescribe marijuana based medications to patients with a demonstrated need. The state would create the Alabama Medical Cannabis Commission to regulate medical cannabis in the state. Farmers, processors, transporters, and dispensaries would have to get a license from the Commission and product would be strictly regulated.

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Despite the Commission’s recommendation, SB165 remains highly controversial in the legislature and there is expected to be considerable opposition to the bill. SB165 is 82 pages long.

SB165 has been assigned to the Senate Judiciary Committee. Judiciary Committee Chairman Cam Ward (R-Alabaster) told the Alabama Political Reporter that there will be a public hearing on SB165 on Wednesday, at 8:30 a.m. in the Alabama Statehouse room 825. Opponents and proponents will both be given the opportunity to voice their opinions.

Thursday was the fourth day of the 2020 legislative session.

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Legislature

Ophthalmologists concerned over questionable Senate Health Committee vote

Eddie Burkhalter

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A controversial call in a state Senate Health Committee vote has some who are opposed to a bill that would expand the scope of practice for optometrists seeing red. 

APR obtained a video of a portion of the Feb. 5 Senate Health Committee meeting, during which state Sen. Tom Whatley, R-Auburn, who sponsored Senate Bill 66, made a motion to give a favorable report for Senate Bill 66. 

Committee chairman Sen. Jim McClendon, R- Springville, called for a second to Whatley’s motion, to which no one could be heard on the video to have spoken up but McClendon said “I have a second” and asked that “all in favor say aye” without calling for “nays” and then declared the motion approved and closing the meeting. 

In a video several senators can be heard expressing concern over McClendon’s move, and asking that their “no” votes be counted. Sen. Linda Coleman-Madison, D-Birmingham, can be heard off camera saying “Record my no vote please.” 

Sen. Coleman-Madison’s is the only “nay” vote noted on the Health Committee Vote Roll Call Sheet, which McClendon signed as having passed in a 5/4 vote. 

If it becomes law, the bill would allow optometrists to expand their scope of practice to include numerous procedures that state law now only allows done by ophthalmologists, who are graduates of medical schools and who undergo lengthier training including residencies. A similar bill failed approval by the legislature last year.

APR’s Brandon Moseley reported Friday on the differences of opinion between the optometrists and the ophthalmologists about the bill. 

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Asked why he didn’t call for “nays” before closing the vote, McClendon, a retired optometrist and a co-sponsor of the bill, told APR by phone on Friday that “that’s the chairman’s prerogative.” 

McClendon said that the only written information about the transactions within a committee is the vote, and that the committee clerk, not him, notated on the vote total that Sen. Coleman-Madison was a “nay.”  

Sen. Cam Ward, R-Alabaster, told APR that every committee chairperson has the authority under Senate rules to conduct a vote as McClendon did. 

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“Typically, you get a one-time pass on that,” Ward said. “In other words, you can pull that one time during the session. You can’t do it repeatedly…It’s kind of an unspoken rule.” 

“It’s not that the chairman gets a pass,” McClendon said when told of Ward’s statement. “It’s that that chairman is in charge of the meeting.” 

Asked if it was fair to move the bill through the committee without taking a full vote on it, McClendon said “it’s the procedure. Life is not fair. Let’s face it.” 

“As someone who’s not familiar with the political process and how these things are done, it was surprising to me how the meeting transpired,” Dr. Brendan Wyatt, an ophthalmologist who spoke out against SB66 at the Feb. 5 meeting, told APR by phone Friday. 

Wyatt said before the meeting those who opposed the bill had commitments from eight senators who said they’d vote against moving it out of committee.  

“Having the mindset that we’re in a representative government I was surprised and taken back on how that whole thing took place,” Wyatt said of the vote. 

Senate Bill 66 now rests with the Senate Rules Committee, which will determine whether the bill will move on to the special calendar for a full Senate vote. 

APR’s attempts to reach Senate Rules Committee chairman Jabo Waggoner, R-Vestavia Hills, and several other Health Committee members last week were unsuccessful. 

Asked if he believes the bill has a chance of passing this year, McClendon said “I’d say it’s better than last year.” 

“It’s out of the committee,” McClendon said.

 

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