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Opinion | Judge Marks and mass incarceration in the Middle District of Alabama

Stephen Cooper

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In 2016, together with former colleague Assistant Federal Public Defender Donnie W. Bethel, I wrote, “[p]eople of all persuasions, political parties, and philosophies have awakened to the terrible toll the crises of overcriminalization and mass incarceration have wrought on America.”

Then, a year later, highlighting the “criminalization of addiction,” I wrote about Benny King – one of Bethel’s clients – a gregarious, good-hearted, God-fearing 53-year-old black man incarcerated for 14 months at the federal correctional institution in Jesup, Georgia, for violating conditions of his supervised release; reprinting Bethel’s arguments I demonstrated (just as Bethel had) how King’s conduct in a nonviolent, low-level federal criminal case bore no relation to his incarceration other than the fact that, it too, like the entirety of King’s nonviolent criminal history, was a byproduct of decades-long untreated drug addiction.

Now, in 2019, as if time were standing still despite the “awakening” Bethel and I (perhaps too naively and optimistically) announced, what seems like ages ago in our twenty-four-hour news cycle, the stories of injustice coming out of the Middle District of Alabama are no better; they’re still replete with nonviolent, disproportionately black defendants with longstanding drug problems – ones who commit victimless crimes tied to unsuccessfully or untreated addictions – receiving draconian sentences.

These overly harsh outcomes come recommended by the Federal Sentencing Guidelines – a cold, unfeeling, mathematical rubric – that reduces crimes committed, and the men and women who commit them, to a range of prison time to be imposed. These “advisory guidelines” which far too many federal judges follow lockstep are not only devastating to defendants and their chances of rehabilitation and redemption (instead of recidivism), they cause immeasurable pain and problems for the families of these defendants, their community, and ultimately our nation, which for far, far too long has been blighted by a racist mass incarceration problem.

Take the case of Willie Blackshire. On April 21, 2017, Blackshire’s house was raided by police who found two guns (one belonging to Mr. Blackshire’s wife), some ammunition, slightly over half a gram (0.603) of cocaine, baggies, and three digital scales. Because at the time, Mr. Blackshire was on probation for being convicted in 2012 of selling ten pain pills (opioids) to a confidential informant, he was charged and eventually pled guilty to “Possession of a Firearm by a Convicted Felon.”

Urging Judge Marks for a downward variance of Mr. Blackshire’s federal sentencing “guidelines range” of 92 to 115 months in prison to 24 months, Assistant Federal Defender Bethel urged:

[Mr. Blackshire] talked about how he had his pelvis crushed in a car accident and he put the cocaine between his cheek and gum like you would chewing tobacco, for instance, and used it essentially to self-medicate. There was no large sum of cash found. We often see a logbook, a list of clients, people that still owe money to someone who sells drugs. There was nothing like that. How much cocaine was found? 0.6 grams. [A] package of Sweet ‘N Low or Splenda is a one-gram package. [Mr. Blackshire had] a little more than half a package of Sweet ‘N Low. What we often see, too, is a lot of individual baggies of drugs that have been bagged up and are ready for sale. That wasn’t present in this case. Mr. Blackshire would take – he did have some of those little baggies. And what he would do is when he traveled[,] [h]e would simply take those along and use it when he was in pain. [And] lately, every client that I have – that’s whether it’s drug possession or drug distribution – they all have digital scales, because they’re cheap. No drug user wants to be ripped off by a drug dealer. And because scales are so cheap, every drug user out there brings his own scales – it’s just that simple. I looked online this morning. I could get a set of digital scales at Walmart for $3.29. Your Honor, I know that the Court is going to get tired of me beating this drum if it hasn’t already – and we’ve only been working together for six months – but it bears repeating in every single case that involves a felon in possession of a firearm, there are no victims in this offense. The advisory guidelines are just that; they’re advisory. And if we’re going to impose a guideline sentence in every case . . . regardless of what the other mitigating factors might be, well then I’m not sure why we go through the whole point of a sentencing hearing. Ninety-two months, almost eight years, for a regulatory offense that doesn’t have any victims is insane. It makes no sense. There’s some variance that must be imposed . . . because to do otherwise simply puts the Court’s imprimatur on what is a patently unreasonable guidelines range.

Next Mr. Blackshire addressed the court in a heart-wrenching plea before assembled family, friends, and supporters, concluding: “Prison rehabilitation isn’t for everybody. I’m over there with a guy now who said, man, you’re crying about one Christmas, and I’ve not seen 13 Christmases. I’m 37[,] I have one felony that brought me in front of you[.] So I’m begging you, please[.]”

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Given her turn to opine the federal prosecutor maintained Mr. Blackshire wasn’t entitled to any variance from his “guideline range,” and, as federal defenders in Alabama have begrudgingly become accustomed to, Judge Marks agreed, imposing a 96-month (8 years) prison sentence. Mr. Blackshire’s sentence is on appeal to the 11th Circuit Court of Appeals.

But, if there’s anyone out there who thinks a man with minor criminal history shouldn’t go to jail for 8 years in a case with no victims, a miniscule amount of cocaine, and an addiction tied to physical suffering, there’s 0 reason for hope. Because as Bethel bitterly observed at Blackshire’s sentencing: “The Eleventh Circuit Court of Appeals has never found a guidelines sentence to be substantively unreasonable. Never found an upward variance of any amount to be substantively unreasonable. I find it a little curious that the only time the Eleventh Circuit has found a sentence to be substantively unreasonable is when it’s a below-guideline sentence.”

And mass incarceration continues.

 

Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California. Follow him on Twitter @SteveCooperEsq

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Opinion | Tough times show what makes our country great

Bradley Byrne

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This year, during the midst of the coronavirus pandemic, Memorial Day provided an even more unique opportunity to reflect upon what makes our nation great and the shared values we hold as a people.  Though our celebrations may have been scaled down, the greatness of our country is, in many ways, more apparent in challenging times like these.

The struggles we are going through together as a nation are real and impactful.  The coronavirus overwhelmingly targets seniors and those with preexisting conditions.  As a result, nursing homes and long-term care facilities have been hit hard.  More than 36,000 residents and staff have died after coming down with Covid-19, more than a third of all deaths in our country that have been attributed to the virus.  Sadly, many of our cherished veterans have been among those lost to the virus.  Of all the tributes to those we have lost, the stories of our veterans are especially moving.

But there are bright spots in coronavirus medical research.  Testing quality and access has improved significantly.  And as we learn more about the virus, we are better able to prevent and treat Covid-19.  The hospitalization rate for those diagnosed with the virus is 3.4 percent, and the CDC estimates that 35 percent of all infected people are asymptomatic.  Taking this into account, the infection fatality rate is likely around 0.2 percent or 0.3 percent.  While that is still 2 to 3 times higher than the flu, the coronavirus is nothing like the killer some predicted early on.

Without question, the economy has taken a hit.  Unemployment levels are higher than any time since the Great Depression.  Our small businesses shed more than 11 million jobs in April.  That’s more than half of the 20 million private sector jobs lost last month.  

However, Congressional action to cushion the blow has helped.  More than 4.4 million small businesses have been approved for a loan through the Paycheck Protection Program, and over $511 billion has been processed in aid.  In Alabama, at least 60,457 loans have been made for a whopping $6,136,772,466.  The bulk of this aid to small businesses must go towards employee paychecks, ensuring that more Americans are able to keep their jobs.  In addition to the Paycheck Protection Program, nearly 431,000 Economic Injury Disaster Loans have been processed to assist small businesses during this crisis.  Alabama businesses have received 4,728 EIDL loans for $376,897,450.

There is no question that small businesses will face new challenges going forward.  Evolving ways we interact with one another and patronize businesses, including new occupancy limitations, will make staying in business more difficult.  That’s why it is so important for our economy to continue opening sooner rather than later.  You and I can do our part by visiting businesses and restaurants in our community.  Importantly, the foundation of our economy was strong before coronavirus spread prevention measures were enacted nationwide.  So, the country can and will rebound from this.  Prosperity will return.

One only needs to look at what is happening on the other side of the globe to be thankful for our nation.  The brutal Chinese Communist Party, whose mismanagement and dishonesty during the initial outbreak of the virus cost countless lives across the globe, is using the pandemic as an excuse to ramp up authoritarian measures.  The people of Hong Kong are suffering a loss of freedom that dwarfs the sacrifices we have made to stop the spread.

The American people have responded to crisis after crisis with resilience and togetherness, and we will do so again.  We may not have participated in all of our Memorial Day traditions, but we can still honor the fallen by treasuring the country and values they sacrificed to preserve.  That’s what makes our country great.

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Opinion | With COVID-19 policy, don’t blame your umbrella. The rain got you wet

Monica S. Aswani, DrPH, and Ellen Eaton, M.D.

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Monica S. Aswani, DrPH, is an assistant professor of health services administration and Ellen Eaton, M.D., is an assistant professor of infectious diseases.

Editor’s note: The opinions expressed in this perspective are those of the authors.


As states re-open for business, many governors cite the devastating impact of physical distancing policies on local and state economies. Concerns have reached a fever pitch. Many Americans believe the risk of restrictive policies limiting business and social events outweighs the benefit of containing the spread of COVID-19.

But the proposed solution to bolster the economy — re-opening businesses, restaurants and even athletic events — does not address the source of the problem.

A closer look at the origins of our economic distress reminds us that it is COVID-19, not shelter-in-place policy, that is the real culprit. And until we have real solutions to this devastating illness, the threat of economic fallout persists.

Hastily transitioning from stay-at-home to safer-at-home policy is akin to throwing away your umbrella because you are not getting wet.

The novelty of this virus means there are limited strategies to prevent or treat it. Since humans have no immunity to it, and to date, there are no approved vaccines and only limited treatments, we need to leverage the one major tool at our disposal currently: public health practices including physical distancing, hand-washing and masks.

As early hot spots like New York experienced alarming death tolls, states in the Midwest and South benefited from their lessons learned.

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Indeed, following aggressive mandates around physical distancing, the number of cases and hospitalizations observed across the U.S. were initially lower than projected. Similarly, the use of masks has been associated with a reduction in cases globally.

As the death toll surpasses 100,000, the U.S. is reeling from COVID-19 morbidity and mortality. In addition, the U.S. has turned its attention to “hot spots” in Southern states that have an older, sicker and poorer population. And to date, minority and impoverished patients bear the brunt of COVID-19 in the South.

Following the first COVID-19 case in Alabama on March 13, the state has experienced 14,730 confirmed cases, 1,629 hospitalizations and 562 deaths, according to health department data as of Monday afternoon.

Rural areas face an impossible task as many lack a robust health care infrastructure to contend with outbreaks, especially in the wake of recent hospital closures. And severe weather events like tornadoes threaten to divert scarce resources to competing emergencies.

Because public health interventions are the only effective way to limit the spread of COVID-19, all but essential businesses were shuttered in many states. State governments are struggling to process the revenue shortfalls and record surge in unemployment claims that have resulted.

The Coronavirus Aid, Relief and Economic Security Act, or CARES Act, allocated $150 billion to state governments, with a minimum of $1.25 billion per state. Because the funds were distributed according to population size, 21 states with smaller populations received the minimum of $1.25 billion.

Although states with larger populations, such as Alabama and Louisiana, received higher appropriations in absolute terms, they received less in relative terms given their COVID-19 related medical and financial strain: the CARES Act appropriations do not align resources with state need.

As unemployment trust funds rapidly deplete, these states have a perverse incentive to reopen the economy.

Unemployment claimants who do not return to work due to COVID-19 fears, per the Alabama Department of Labor, can be disqualified from benefits, perpetuating the myth of welfare fraud to vilify those in need.

The United States Department of Labor also emphasized that unemployment fraud is a “top priority” in guidance to states recently.

Prematurely opening the economy before a sustained decline in transmission is likely to refuel the pandemic and, therefore, prolong the recession. Moreover, it compromises the health of those who rely most heavily on public benefits to safely stay home and flatten the curve.

Some would counter this is precisely why we should reopen — for the most vulnerable, who were disproportionately impacted by stay-at-home orders.

The sad reality, however, is that long-standing barriers for vulnerable workers in access to health care, paid sick leave and social mobility pre-date this crisis and persist. And we know that many vulnerable Americans work on the frontlines of foodservice and health care support where the risk from COVID-19 is heightened.

A return to the status quo without addressing this systemic disadvantage will only perpetuate, rather than improve, these unjust social and economic conditions.

COVID-19 has exposed vulnerabilities in our state and nation, and re-opening businesses will not provide a simple solution to our complex economic problems.

No one would toss out their umbrella after several sunny days so why should America abandon public health measures now? After all, rain is unpredictable and inevitable just like the current COVID-19 crisis.

The threat of COVID-19 resurgence will persist until we have effective preventive and treatment options for this novel infectious disease.

So let’s not blame or, worse, discard the umbrella. Instead, peek out cautiously, survey the sky and start planning now to protect the vulnerable, who will be the first to get wet.

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Opinion | Cleaner air during pandemic shows need for alternative fuels, electric vehicles

Mark Bentley and Phillip Wiedmeyer

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Photos of a smogless Los Angeles skyline set against a brilliant blue sky have emerged as an iconic image to showcase the impact of decreased air pollution during America’s COVID-19 quarantine.

Similar photos from around the world, including what are usually smog-filled cities in India, China and Europe, provide a glimpse of a world with improved air quality.

It’s no secret that poor air quality has historically been caused by traffic, but due to tighter regulations by the federal government, industries’ contribution to pollution has decreased significantly. Scientific research is beginning to show how social distancing measures and stay-at-home orders have created an unintended consequence of improving worldwide air quality.

For nearly two decades, the Alabama Clean Fuels Coalition has been advocating to improve Alabama’s air quality by increasing the use of cleaner alternative fuels and expanding the market for advanced technology vehicles. Cleaner burning alternative transportation fuel options like biodiesel, ethanol, propane and natural gas also reduce pollution just like electric vehicles.

Air pollution remains a global public health crisis, as the World Health Organization estimates it kills seven million people worldwide annually.

But is the COVID-19 pandemic showing us the wisdom of transitioning to cleaner vehicles, whether electric vehicles with drastically lower emissions or vehicles using cleaner-burning alternative fuels? The answer is an emphatic yes.

Recent research shows global carbon dioxide emission had fallen by 17 percent by early April when compared to mean 2019 levels. In some areas, including the United States and the United Kingdom, emissions have fallen by a third, thanks largely to people driving less, according to research published in Nature Climate Change.

Numerous organizations, including NASA, continue to study the environmental, societal and economic impacts of the pandemic, and researchers view recent air quality gains as promising evidence that the use of alternative vehicles could have long-term positive impacts.

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“If I could wave my magic wand and we all had electric cars tomorrow, I think this is what the air would look like,” Ronald Cohen, a professor of atmospheric chemistry at UC Berkeley who studies the effects of the stay-at-home orders on air quality, told the Los Angeles Times.

Wider use of electric vehicles and the other domestically produced alternative fuels would lessen America’s dependence on foreign oil while also helping our environment. Poor air quality already causes negative consequences for millions of Americans.

Alabama could also see economic benefits from increased production of electric vehicles, with Honda, Hyundai and Mercedes-Benz operating plants in the state and working hard to produce the next wave of electric vehicles. As part of a $1 billion investment in Alabama, Mercedes began construction of a high-voltage battery plant in Bibb County in 2018 for its all-electric EQ brand of vehicles, as well as batteries for its hybrid plug-ins.

“This is a teaching moment,” Viney Aneja, an air quality professor in the Department of Marine, Earth and Atmospheric Sciences at North Carolina State University told the Raleigh News and Observer. “We should learn from it. We should promote behavior that will allow air quality to be as good as it is outside right now.”

This is a prime opportunity for America to embrace alternative and cleaner-burning transportation fuels, as well as electric vehicles, while also decreasing reliance on foreign oil and creating jobs here at home.

It could also make those picturesque photos of the big-city skylines become commonplace instead of a rarity.

Mark Bentley has served as the executive director of the Alabama Clean Fuels Coalition since August 2006.

Phillip Wiedmeyer serves as the Alabama Clean Fuels Coalition’s chairman of the board of directors and president and is one of the ACFC’s original founders. He also serves as the executive director of the Applied Research Center of Alabama, a non-profit dedicated to public policy issues impacting Alabama’s growth, economic development and business climate.

About the Alabama Clean Fuels Coalition

Alabama Clean Fuels Coalition serves as the principal coordinating point for clean, alternative fuel and advanced technology vehicle activities in Alabama. ACFC was incorporated in 2002 as an Alabama 501c3 non-profit, received designation U.S. Department of Energy’s Clean Cities program in 2009 and was re-designated in 2014. A national network of nearly 100 Clean Cities coalitions brings together stakeholders in the public and private sectors to deploy alternative and renewable fuels, idle-reduction measures, fuel economy improvements and emerging transportation technologies. To learn more, visit www.alabamacleanfuels.com.

 

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Opinion | Electric vehicles next wave to drive Alabama’s continued auto-manufacturing success

Gerald Allen

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Alabama has long been a leader in the automotive manufacturing sector in the United States and, now, we have the opportunity to sustain that momentum for years to come through significant investments in the electric vehicle (EV) industry.

Dating back to 1993 when Mercedes-Benz announced their opening of their only U.S.-based assembly plant in Tuscaloosa County, our state has continued to provide a favorable business climate that has helped recruit Hyundai, Honda, Toyota and Mazda. The substantial investments of these companies have only furthered economic activity through the numerous tier 1 and tier 2 automotive suppliers that have also located to our state.

Combined, these Alabama-based automakers and suppliers produced nearly 1.6 million engines in 2018 and created over 40,000 automotive manufacturing jobs. Alabama currentlyranks as the number three autoexporting state in the country, andexports of Alabama-made vehicles and parts totaled $7.5 billion in 2018.

Now, as we continue toward a 21stcentury transportation system and economy, we must acknowledge – and prepare for – the electric vehicle wave that is coming.

Significant research shows that consumer interest in electric vehicles is exponentially on the rise and so is theproduction of EVs by manufacturers. Globally, total EV sales surpassed 1 million vehicles in 2017, then quickly doubled to cruise past 2 million in 2018 and that number is expected to double again in 2020 to reach 4 million total sales. According to a Deloitte report, it is expected that global EV sales will top 21 million by 2031.

In recognition of the growth in EV sales, Mercedes-Benz broke ground in the fall of 2018 in Bibb County to build a plant producing high-voltage batteries for the all-electric EQ brand of Mercedes vehicles, as well as batteries for Mercedes hybrid plug-ins. This project alone is well over a billion-dollar investment in Bibb County and, with it, Mercedes has now invested more than $6 billion in its operations here in the state.

We know that expanding EV sales andproduction in Alabama will require anumber of investments from the industry, the legislature and eventually theconsumers of this state. To cement our reputation as a forward-leaning automotive leader, we must prepare for the future of electric vehicles, production of electric vehicles parts and ensure the necessary EV infrastructure is in place to be competitive for generations. Doing so will show that our state supports this burgeoning sector of automotive manufacturing and help recruit even more of these projects that will provide numerous high-paying jobs and produce significant economic benefits.

The Rebuild Alabama Infrastructure Plan, approved legislatively in 2019, provided a foundational first step as it included a provision that helps propel Alabama toward the cutting-edge of EV infrastructure. The landmark legislation established a grant program that proactively facilitates the installation of new EV charging stations across the state. These stations will supplement the Electrify America charging stations currently being installed in the state and add to Alabama’s EV infrastructure.

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Additionally, the full body of the state Senate and our colleagues in the House have shown a commitment to the expansion of EV production in Alabama with a $2 million investment in this year’s budgets to educate and promote the use of electric vehicles to the public. We believe this will further Alabama’s reputation as a premier automotive manufacturing state as these funds will go toward developing an EV industry educational website with mapping of charging stations and other useful resources, as well as funding to further build out  Alabama’s EV charging infrastructure.

Mercedes-Benz has been a game changer for our state. With their initial investment in 1993 to their significant investments in EV batteries, it’s clear the electric vehicle wave is coming and, with it, significant opportunities for automotive manufacturing growth in Alabama. Now is the time for us to show our state’s ongoing ingenuity by supporting this sector’s transformation to electric vehicle production with these significant investments and overall support of the growing EV industry.

Gerald Allen is a member of the Alabama State Senate, R-Tuscaloosa, representing District 21. Senator Allen can be reached at [email protected].

 

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