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Prison reform, construction package expected before end of session

Chip Brownlee

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A wide-ranging package of bills aimed at prison reform is expected to drop in the Alabama Legislature in the next few weeks, the chairman of the Senate’s judiciary committee tells the Alabama Political Reporter.

The legislative package includes sentencing reforms, oversight legislation, reporting requirements and a new prison construction plan.

The package, when it is formally introduced, would come just weeks after the U.S. Department of Justice released a report in April excoriating the Alabama Department of Corrections for intense overcrowding, under-staffing and prison conditions so horrendous that they amount to a potential violation of the Constitution’s Eighth Amendment prohibition on cruel and unusual punishment.

The report, nearly 60 pages long, found reasonable cause to believe that ADOC regularly failed to protect inmates from sexual and physical violence perpetrated by other inmates. The legislative package is intended to alleviate some of those issues and reduce the rate of violence and suicide in the state’s prisons.

Justice Department report documents horrific violence, sexual abuse in Alabama prisons

DOJ officials notified Alabama prison administrators in a letter that accompanied the report that it could sue by the state by May 21 if ADOC officials do not “satisfactorily address” the concerns raised in the report.

“I think you have a lot of people saying we can’t do this anymore,” said State Sen. Cam Ward, R-Alabaster, the chair of the judiciary committee. “The worst-case scenario is if we do nothing, then all you’re going to do, is eventually the federal government will just take over.”

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Since the report dropped with a bang in April, Ward has been meeting with an informal bipartisan working group to come up with a plan to address the concerns raised in the report.

“We feel like by the end of next week, we should have a pretty good plan in place — or a framework — to help address some of their concerns,” Ward said Friday.

The informal working group has been meeting with U.S. attorneys and other federal officials to discuss their plans. Ward said he is confident the prison reform package would address the Department of Justice’s concerns and waive off the threat of a lawsuit.

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“Every memo they’ve sent back to us they’ve said they think our conversations have been very productive,” Ward said. “We’ve taken U.S. attorneys around to both causes in the House and Senate. We’ve had very frank conversations, questions and answers.”

The framework would include about five or six bills, Ward said.

Sentencing reform, Ward said, is among the top concerns. One of the bills in the package would address property crime sentencing and thresholds. Alabama has some of the lowest property crime thresholds in the country.

The proposal, Ward said, would raise the thresholds for a low-level, non-violent property crime offenses. Another would allow for existing sentences to be re-evaluated in light of reduced sentencing guidelines.

“If I was in prison in 2014 and you changed the sentencing laws in 2015, if I committed that same crime in 2016 and wouldn’t be in prison, shouldn’t you have some sort of look-back to re-evaluate some of those sentences for non-violent offenders?” Ward said.

 The changes would be in line with Gov. Kay Ivey’s call for an “Alabama solution to an Alabama problem.” Ivey has warned the state needs to do something before the federal government takes over the system.

Ward agreed.

“You don’t want to allow them the opportunity of mass release of inmates,” Ward said.

California faced something similar in 2011, when the U.S. Supreme Court ruled the state’s overcrowded prisons amounted to cruel and unusual punishment. The court ordered the state to reduce its prison population to at least 137.5 percent of capacity within two years.

The ruling effectively required the state to release tens of thousands of inmates. Within 15 months, more than 27,500 inmates were moved from state prisons to county jails or to parole.

“They will just come over and run the system, and then, they just give you a bill that we have to pay for whatever they want to see done, and it’s expensive. You end up having to raise a lot of taxes for prisons,” Ward said.

Ward has been involved with reforming the state’s criminal justice and prison system for years, but he described the mood among lawmakers since the release of the DOJ report as a “sea change.”

“I think from a legislative standpoint, we have a lot of people saying we have to do something, which I think is positive,” Ward said. “That is what we need.”

It’s unlikely the package of bills would address drug sentencing.

“You can tweak that some, but the thing is that today, in Alabama prisons, there is nobody there because they were smoking marijuana,” Ward said. “It’s just not there.”

Ward said it was possible to reduce some sentences for low-level trafficking, but that would be difficult.

“If you legalize marijuana tomorrow in Alabama all the way through, it would impact the prison population zero,” Ward said. “So you’ve got a way to do something that actually addresses it.”

The rest of the package would take aim at providing more transparency and oversight for the state prison system.

“You have to say, we’re going to have regular meetings with oversight committee, and we’re going to hold you accountable on suicide rates,” Ward said. “Why is this happening? We’re going to hold you accountable on inmate-on-inmate violence, sexual assaults and we’ve got to have a better reporting system. That way we can address it.”

The DOJ’s wide-ranging investigation found not only that prisoners were susceptible to “an enormous breadth” of sexual abuse and assault but other types of violence as well, including gruesome murder and beatings that went without intervention.

“There was a culture inside those prisons where it was just OK to let that stuff happen,” Ward said. “So we have to crack down on that, too.”

The new plan comes as Ivey is going down her own path with the aim of consolidating the state’s 13 men’s prisons into just three new large prisons through a leasing agreement that wouldn’t require the Legislature’s approval. The plan is similar to proposals considered under former Gov. Robert Bentley. That proposal failed twice.

Ivey administration moves another step forward with prison plan

There aren’t many details about what the Legislature’s prison construction plan might include, but Ward said it could be more cost-effective because the Legislature could approve a bond issue instead of a leasing arrangement.

“There are those in the Legislature who are saying we would rather do it ourselves because if you do it through a standard bond issue as opposed to the lease proposal, you save about $200 million,” Ward said. “That’s why that conversation is going on.”

Ward carried Bentley’s prison construction plan the last time it was considered in the Legislature, and he said he was hesitant to get back into a conversation this session about a legislative plan to build new prisons.

“I was skeptical when it first came back among our members. I was very hesitant and very skeptical. I didn’t feel good about it,” Ward said. “Once we had the conversation, I kind of acquiesced to the majority of our members who want to take another stab at it.”

When the prison construction plan failed last time, it was largely due to disagreement among the Republican caucus about the cost of the $800 million plan and the method of bidding. But Ivey’s plan would cost at least $900 million.

“I’m working with a bipartisan coalition here, and if a majority of them want to go down that road, then I’m going to work with my body to make sure we do what the majority wants,” Ward said. “Now, is it going to happen? I don’t know. But if the will is there — and I see a lot of hard work from both Democrats and Republicans — then we’re going to try it.”

Ward said the bills will start moving within the next two weeks, and his goal is to have them considered before the end of the Legislative session, which could end in late May or early June.

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House passes landfill bill allowing alternative materials as temporary cover

Brandon Moseley

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The Alabama House of Representatives passed a bill Thursday to change the statutory definition so that temporary “cover” in landfills can be a material other than “earth.”

House Bill 140 is sponsored by State Rep. Alan Baker, R-Brewton.

The bill allows landfills to use alternative daily covers in place of earth to cover landfills until the next business day. “The EPA has allowed this since 1979,” Baker said. It would save landfills the cost of using earth for daily cover.

“This does not change anything in the operating rules for landfills,” Baker said.

A number of members from both parties expressed concerns about this bill on Tuesday, so the bill was carried over until Thursday.

Speaker of the House Mac McCutcheon told reporters, “Sometimes in a debate you can see that the debate is not a filibuster or anti-debate; but rather is an honest effort by members to understand a bill.”

“There was a lot of misinformation out there,” McCutcheon said. The Environmental Services Agency and ADEM were brought in to explain the members and address their concerns.

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McCutcheon said that human biosolids is a separate issue and that Rep. Tommy Hanes has introduced legislation dealing with that issue.

Alternative daily cover is often described as cover material other than earthen material placed on the surface of the active face of a municipal solid waste landfill at the end of each operating day. It is utilized to control vectors, fires, odors, blowing litter, and scavenging. Federal and various state regulations require landfill operators to use such earthen material unless other materials are allowed as alternatives (Mitchell Williams writing on Oct 31 in JDSUPRA).

Soil cover can use valuable air space. Further, it can generate the need to excavate and haul soil to the facility. Alternative daily covers are often advocated to be a more efficient and cost-effective means of cover (Williams).

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Baker said that it would be up to ADEM (the Alabama Department of Environmental Management) in the permit whether to allow a proposed alternative cover or not.

Baker said, “This bill does not change any of the materials used as cover.” “This would keep us from having to use that good earth in landfills when other materials are available. If it becomes a nuisance ADEM can revoke a cover on the permit. Daily cover has to be approved at the discretion of ADEM.”

Baker said that only materials not constituted as a risk to health or are not a hazard can be used.

An environmental attorney shared the list of ADEM alternative covers with the Alabama Political Reporter. The list includes: auto fluff, excavated waste, synthetic tarps, coal ash, petroleum contaminated soil, automotive shredder residue, shredder fluff, wiring insulation, contaminated soils, paper mill (including wood debris, ash shaker grit, clarifier sludge, dregs, lime), 50 percent on-site soil and 50 percent tire chips, spray-on polymer-based materials, reusable geosynthetic cover, automobile shredder fluff, tarps, foundry sand, clay emulsion known as USA Cover Top clay emulsion, non-hazardous contaminated soil, non-hazardous solid waste clarifier sludge, steckle dust all generated from Nucor Steel Tuscaloosa Inc., non-coal ash from Kimberly Clark operations, lagoon sludge from Armstrong World Industries operations, meltshop refractory material from Outokumpu Stainless USA operations, paper mill waste (non-coal ash, slaker grits, dregs, and lime), biodegradable synthetic film, fly ash, residue from wood chipper or paper, slurry with a fire retardant and tactifierl, Posi Shell Cover System, waste Cover, foundry waste, 50 percent soil and 50 percent automobile shredder fluff, incinerator ash, green waste to soil. Sure Clay Emulsion Coating, alternative cover materials (manufactured), compost produced by IREP Montgomery-MRF, LLC, 50 percent saw dust mixed with 50 percent soil, and waste soils considered to be special waste.

McCutcheon said that members did not understand that these were just temporary covers. That was explained to them.

Alabama landfills have used alternative covers for years; but three people sued saying that this was not allowed under Alabama law and that ADEM had exceeded its mandate by permitting alternate covers. On October 11, 2019 the Alabama Court of Civil Appeals found in favor of the plaintiffs.

HB140, if passed, would address this oversight in the Alabama legal code so that ADEM and the landfills can legally continue to use alternate covers and not have the added expense of quarrying dirt for daily cover.

A Senate version of the same bill received a favorable report last week from the Fiscal Responsibility and Economic Development Committee.

HB140 now goes to the Alabama Senate.

 

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Alabama lawmakers advance bill banning transgender athletes in K-12 sports

Jessa Reid Bolling

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A House committee voted Wednesday to advance a bill that would ban transgender teenagers from playing on the sports teams of the gender they identify with. 

House Bill 35, titled the Gender Is Real Legislative Act, or GIRL Act, would require student athletes in K-12 schools to participate as the gender listed on their birth certificate, preventing transgender athletes from competing as the gender they identify as.

Sponsored by Rep. Chris Pringle, R-Mobile, the bill passed the House State Government Committee on an 8-4 vote. The bill will now go to the full House. 

The bill, according to Pringle, is aimed at preserving the accomplishments of women and to prevent women from having to compete against athletes who were born male.

“Gender is real. There are biological differences between boys and girls that influence athletic performance,” Pringle said in a statement. “The GIRL Bill seeks to support female student-athletes, so that they may compete against each other and not have to compete against male students with an unfair advantage.”

Opponents say that HB35 was born out of prejudice against transgender youth rather than seeking to protect women in athletics. 

Carmarion D. Anderson, Alabama state director of the Human Rights Campaign (HRC), an LGBTQ+ rights organization, called the bill a “political advertisement” with no supporting evidence

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Anderson said she believes this bill will do harm to young transgender youth by segregating them from competing in sports events, further contributing to the ostracization trans youth feel in society.

“We’re concerned about a student’s mental health when they cannot participate in the sports that are comfortable for them, and the level of dysphoria they already face when they are transitioning,” said Anderson. 

Anderson also said that while it is unfortunate that this bill passed the committee, HRC will be at the forefront to try to see the bill defeated. 

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The bill now heads to the full House.

 

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Legislation may harm pets locked in hot cars, not help, vets and advocates say

Eddie Burkhalter

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A bill passed by the Alabama Senate last week lawmakers say will help keep pets trapped in hot cars safe, might actually endanger the animals, according to some animal advocates and veterinarians.

That bill was written by a dog breeder who some worry purposefully wrote the bill to make it harder to keep animals safe, and to instead protect breeders from having animals confiscated, they told APR this week. 

Mindy Gilbert, The Human Society’s Alabama state director, told APR by phone on Tuesday that she’s certain that the senate bill’s sponsor, Alabama Sen. Jimmy Holley, R-Elba, “does have good intentions, but I think the devils in the details.” 

Several attempts this week to reach Rep. Holley were unsuccessful. 

The bill would grant criminal immunity to a civilian who rescues an animal from a vehicle, and would provide civil and criminal immunity to first responders who do so. The legislation also makes it a misdemeanor crime if a pet dies in a hot car. 

Gilbert said that while those might also sound like great ideas, the bill would actually reduce criminal penalties for allowing a pet to die in a hot car. 

“Our current cruelty statute, which has been used in cases like this, would define that as a class C felony,” Gilbert said. 

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A Trussville woman in 2018 was charged with felony aggravated cruelty to animals for leaving her dog in a locked car while shopping in Walmart. The dog died after police broke out a window and removed the distressed animal. 

The bill also states that the ambient temperature of the interior of a vehicle must be 99 degrees or hotter to be charged under the legislation. 

Gilbert said she’s spoken with numerous veterinarians who all said that 99 degrees is too hot to be safe for pets trapped in cars. 

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Gilbert said that for many breeds of pets, and pets with compromised health, “that requirement in order to rescue them will absolutely sentence them to death,” and there are other aspects of the bill that trouble her. 

“I think everybody was very focused on providing immunity to first responders, which I think is fabulous,” Gilbert said of the legislation, but worried that it doesn’t include animal control personnel in its definition of public safety officials and covered by the bill’s immunity clause. 

Holley’s legislation defines public safety officials as “An individual employed by a law enforcement agency, fire department, or 911 emergency service.” 

Dr. Mark Colicchio, a veterinarian in Spanish Fort, reached out to Sen. Holley and all of the members of the state Senate Judiciary Committee about his concerns with the bill prior to its passage in the senate. Holley put Colicchio in touch with the man he said wrote the bill, Norman Horton.

Colicchio said he spoke to Horton, owner of the Dale County german shepherd breeding company Triple S Shepherds, at length about his concerns, but that none were addressed in the final legislation. 

“There are a lot of temperature references in there which make no sense whatsoever,” Colicchio said. 

Colicchio said he spoke with Horton about the bill’s language that required the ambient temperature of the interior of a vehicle to be 99 degrees or higher before a person could be charged. He said he told Horton that there’s no practical way for a public safety official to measure the ambient temperature inside a locked vehicle from outside, to which he said Horton suggested they call carry digital temperature readers. 

Such devices measure surface temperatures, and wouldn’t  be able to read the temperature inside a locked car, Colicchio said. 

After speaking with veterinarians at Auburn University’s College of Veterinary Medicine Cholicchio said they looked at data that suggested that if the outside temperature of a vehicle, which can be more easily measured, was 78 degrees an animal trapped inside with no ventilation could be in jeopardy. 

Colicchio said he suspects the legislation was purposely written to protect owners from having their animals taken from them in the event they’re left in hot cars. 

“He doesn’t want breeders to risk having their valuable dogs stolen out of the car because somebody thinks they’re at risk,” Colicchio said. “…When you structure a law to benefit yourself, and animals suffer for it, that just gets to me.” 

Horton, speaking by phone Wednesday,  told APR that he wrote the bill to protect animals and to establish the proper way to rescue an animal in distress. 

“This is America, and this is Alabama, and if someone’s gonna be guilty of a crime or charged for a crime then they need to have committed that crime” Horton said. 

Horton said “we don’t need vigilante justice” so he wrote the bill to make clear how best to enter a vehicle if an animal is in need of help. 

Asked how he decided that 99 degrees inside a vehicle was the temperature at which a pet was in danger, Horton said “I got the figure after talking to several veterinarians.” 

Asked which veterinarians he spoke to get that figure, Horton said “that’s immaterial” and declined to name them. 

Horton likened the matter to speed laws, and said while some speed limits are set at 70 MPH, some people, such as police officers, can drive safely at speeds up to 113mph. 

Asked why the bill doesn’t include animal control officers in the immunity protections, Horton said that “it does.” 

Horton pointed to the bill’s language that defines public safety officials as “An individual employed by a law enforcement agency” and said “go to Tuscaloosa. Go to any of the cities around, and animal control officers are employed by the police department. They’re sworn officers.” 

Some animal control officers who work in municipal law enforcement agencies are sworn officers, Gilbert said, but many are not, and in the counties, where animal control is operated as stand-alone agencies, animal control officers are not sworn officers and wouldn’t be immune from prosecution under the legislation. 

Asked why his bill didn’t include all animal control officers, whether they were sworn officers working in law enforcement agencies or not, Horton suggested that it was to ensure owners could be charged with crimes 

“Do we want to charge for the crime when they do something like this or just let them go?” Horton said. 

Horton declined to answer a question about the bill’s language that limits the charge of killing an animal in a hot vehicle to a misdemeanor and soon after ended the interview. 

“It’s not to help the animals,” Colicchio said of the legislation. “That’s the wolf in sheep’s clothing.” 

It was unclear Wednesday if Holley’s bill had a sponsor in the state House. There were no similar bills filed Wednesday, according to the state Legislature’s website.

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Crime

House Judiciary Committee passes bail reform law named for Aniah Blanchard

Jessa Reid Bolling

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The House Judiciary Committee on Wednesday passed a bill to give judges more discretion in denying bail to people accused of committing violent crimes. 

The bill is named for Aniah Blanchard, a 19-year-old Alabama college student who was kidnapped and murdered last year. The man charged with her murder, Ibraheed Yazeed, was out on bond for charges including kidnapping and attempted murder at the time he was arrested in connection with Blanchard’s case. 

Currently, judges can only deny bond in capital murder cases. The bill would allow judges to deny bail in cases involving certain violent offenses. 

Blanchard’s father, Elijah Blanchard, stepmother, Yashiba Blanchard, and mother, Angela Harris, spoke to the House Judiciary Committee today in support of the law. 

“This would not have happened to our child if this bill would have been in place,” Harris said. “We can save a lot of lives by doing this because, because with repeat violent offenders, they are going to repeat.”

If the bill passes the full House and Senate, it will appear on the ballot in November.

 

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