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Bills could improve access to diversion programs, report notes high fees and roadblocks

Eddie Burkhalter

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Bills recently introduced in the Alabama House and Senate aim to improve access to specialized courts and diversion programs, meant to get people the help they need and keep them from behind bars. 

Even with more access to those programs and courts, however, many can’t afford the exorbitant fees to remain free, according to a report released this week by an Alabama nonprofit criminal justice reform advocacy group, which also found racial disparities and a lack of critical information on outcomes. 

Sen Cam Ward, R-Alabaster, told APR on Wednesday that his bill would help provide access to those programs to people who live in smaller communities, which don’t have the money to afford them, by allowing judges to transfer municipal cases to circuit and district courts that do. 

Each participant – the defendant, the municipal court and the county court – would have to agree to transfer a case, according to the legislation. 

“You increase the opportunities for diversion, and smaller towns don’t have it,” Ward said. “It gives them a chance to avoid going to prison or going to jail.” 

In order for a presiding circuit judge to transfer a case, all parties would have to agree to do so, and the defendant would have to qualify for the drug court, mental health court, veteran’s court or diversion program, according to the bills. 

Rep. Jim Hill, R-Moody, introduced the House’s version of the bill. Attempts to reach Hill on Wednesday were unsuccessful. 

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The legislation promises a way out of serving time in county jails and prisons for low-level crimes, but even with more access, many of those programs are too costly for participants to afford, according to a report released Monday by Alabama Appleseed, which in 2018 and 2019 surveyed 1,011 people who had participated in those specialized courts and diversion programs. 

What researchers at Alabama Appleseed found was that most people in those programs are poor, making less than $14,999 a year, and paid a median of $1,600 for those diversion programs, or more than 10 percent of their income. 

“Close to half used high-cost payday or title loan,” according to the report. “More than eight in ten gave up a necessity like food, rent, or prescription medication.” 

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Carla Crowder, executive director of Alabama Appleseed, in a message to APR on Wednesday said that to the extent that the legislation expands access to diversion, it looks like a step in the right direction. 

“But so much more is needed. Real reform of Alabama’s inconsistent patchwork of diversion programs means no one is excluded because they’re too poor to pay all the fees, or cannot take off work, or have small children to care for. And our research found all of these scenarios are far too common

Crowder said that there’s also concern that the change could create new revenue streams for the various entities involved, which could result in more hardships for vulnerable low-income people charged with crimes. 

“Oftentimes new diversion programs spring up as a way to collect money from vulnerable people desperate to stay out of jail or prison. The last thing we need is more of that,” Crowder said. 

Ward told APR that there are good points raised in the Appleseed report, and while he doesn’t agree with all of the report’s suggestions for fixes, he does believe there’s room for improvement.

Among the report’s recommendations for legislators is to “Establish and enforce uniform statewide standards for all diversion programs and alternatives to incarceration.” 

Ward agrees, and said the state has “a sporadic nature of diversion programs. Some counties that work great, some not so much. Some, it’s a pay-to-play system.” 

“I do think some of these are absorbing, so I think Appleseed was correct on that,” Ward said. 

Ward also said there needs to be more uniformity among the many different specialized courts and referral programs, and he agrees with the report’s finding that there needs to be more transparency on the outcomes of such programs. 

Read the full report here

Among the the reports findings are: 

Disturbing Racial Disparities

In 2018, the Alabama Department of Corrections had 20,585 inmates in its custody population. Of those, 43 percent were white, while 56 percent were black. 

The same year the population of Community Corrections programs was nearly 60 percent white and 40 percent black. 

“The disparity between the racial demographics of the population in custody, who must bear the violence, danger, and misery of Alabama’s prisons, and the racial demographics of those in Community Corrections, who enjoy a measure of liberty, is striking,” the report reads. 

High fees

In Baldwin County, 18 months in a pretrial diversion program can cost a person  $3,010. 

The report notes that in Lee County, traffic cases can be disposed of through pretrial diversion for $673, DUIs are $1,183, while felony drug offenses cost $1,713. 

“Participants deemed poor enough for an appointed attorney can be required to pay an additional $500 in appointed attorneys fees, pushing the total cost for a felony above $2,000,” the report reads. 

Of those polled by researchers 57 percent said they’d gone without food to pay to remain in the programs, 30 percent said they’d forgone paying on medical bills or for medication to do so and 12 percent said they failed to pay child support due to the costly programs. 

“42% admitted to committing a crime to pay diversion costs and fees; 29% sold drugs; 24% stole,” the report reads. 

Lack of data, roadblocks to success 

“Alabama does not maintain any data on drug courts. The state does not maintain information about demographics, cost to participants, criminal charges, recidivism rates, length of time in drug court before graduation or termination, or any other data that would permit researchers, legislators, judges or anyone else to assess the efficacy of its drug courts.” 

Researchers noted in the report that there is an employee of the Administrative Office of Courts who is doing some of that research, but that it’s unclear if that data, if completed, will be made public. 

The difficulty of getting to required drug court appearances is exacerbated because “people are required to plead in to and attend drug courts in the jurisdiction where they are charged, not the jurisdiction where they live.” 

One man, whom researchers witnessed at a drug court in Marengo County, had to drive from his home in Etowah County to get to the court, a 364-mile round trip. 

“For drug court participants who don’t have licenses or who lack access to a vehicle of their own, this is a terrible obstacle, even an impossible one,” the report reads.

Eddie Burkhalter is a reporter at the Alabama Political Reporter. You can email him at [email protected] or reach him via Twitter.

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Judge dismisses former Drummond exec’s lawsuit against Balch and Bingham

Josh Moon

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(STOCK PHOTO)

A Jefferson County Circuit Court judge has dismissed a lawsuit against the Balch & Bingham law firm filed by a former coal executive who claimed the law firm’s poor legal advice resulted in his conviction on federal bribery charges. 

Judge Tamara Harris Johnson ruled that the statute of limitations had expired on former Drummond Coal vice president David Roberson’s $50 million lawsuit against Balch and his former employer, Drummond.

The suit claimed that Balch attorneys, primarily Joel Gilbert, who was also convicted of federal bribery charges, assured Roberson that a plan to recruit then-State Rep. Oliver Robinson to use his office to thwart efforts by the EPA to clean up toxic soil in the 35th Avenue Superfund site in North Birmingham was legal.

Johnson’s ruling dismissing the lawsuit against Balch didn’t dispute Roberson’s claims but said that under the Alabama Legal Service Liability Action statute, Roberson should have filed his claim no later than November 2018. He filed it in March 2019. 

“All claims against defendant Balch & Bingham are barred by the statute of limitations,” Johnson wrote. 

Johnson said a motion to dismiss filed by Drummond will be addressed separately at a later date. 

Roberson and Gilbert were the only two executives found guilty by a jury in October 2018 in the well-publicized federal case that saw Robinson plead guilty and go to prison for accepting bribes. 

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Roberson maintained his innocence throughout, saying he relied on the advice and counsel of Gilbert and others at Balch. During the sentencing phase, U.S. District Court Judge Abdul Kallon said he was moved by Roberson’s history and the character witnesses who testified on his behalf, and the judge said he found Roberson to be less culpable than Gilbert because he relied on Gilbert’s legal advice. 

Gilbert was sentenced to five years in federal prison. Robinson was sentenced to two and a half years.

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Trial begins in lawsuit challenging state’s COVID-19 election rules

Micah Danney

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(ALABAMAVOTES.GOV/APR GRAPHIC)

A virtual trial opened on Tuesday in a lawsuit charging that Alabama’s requirements of witnesses and photo ID for absentee ballots and a “de facto ban” on curbside voting are unconstitutional.

The suit, People First v. Merrill, was filed on May 1 by the Southern Poverty Law Center, the NAACP Legal Defense and Educational Fund, the Alabama Disabilities Advocacy Program and the American Civil Liberties Union against Secretary of State John Merrill.

Merrill has touted the rules for the election in November as guaranteeing “a higher degree of credibility than ever before in the history of the state.”

The SPLC said that while Merrill did permit any eligible voter to apply for an absentee ballot by claiming “physical illness or infirmity,” the witness and ID absentee requirements should be waived and the curbside voting ban lifted because they present unfair obstacles to plaintiffs’ ability to vote.

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Federal court orders outside monitoring of Alabama prisons’ mental health care

Josh Moon

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(STOCK PHOTO)

A federal judge has ordered external monitoring of mental health care in Alabama’s prisons, noting a long and disturbing history of inadequate care and refusal by the state to willingly improve conditions.

In his 124-page order, U.S. District Court Judge Myron Thompson noted decades of insufficient care and lawsuits and established a hybrid monitoring plan that will see an external monitoring team train Alabama Department of Corrections’ staff.

“ADOC’s long history of repeated litigation regarding the inadequacy of its mental-health care is independent evidence of its inability to sustain improvements without the type of oversight ordered today,” Thompson wrote in the order. “This history serves as evidence of why court monitoring is necessary.”

The order is part of the long-running Braggs v. Dunn litigation, filed by the Southern Poverty Law Center, Alabama Disabilities Advocacy Program, Baker Donelson and the Dagney Johnson Law Group, that has resulted in numerous changes and harsh rebukes from Thompson over ADOC’s consistently poor mental health care of prisoners. At one point, Thompson labeled ADOC’s mental health care as “horrendously inadequate.”

That inadequate care has resulted in Alabama having one of the highest rates of inmate suicides in the nation.

“People in Alabama prisons have been languishing for far too long at the hands of state officials,” said Ebony Howard, senior supervising attorney for Criminal Justice Reform at the SPLC. “Despite historical intervention and court monitoring, ADOC has failed to permanently uphold its obligation to protect the people incarcerated in Alabama prisons. The court’s order requiring long-term external and internal compliance monitoring will hopefully ensure that people with mental health needs will finally receive the humane and just treatment they deserve.”

The parties will be back in court on Sept. 14 in a hearing to determine if Thompson’s order falls within the guidelines of the new Prison Litigation Reform Act, which limits the amount of change that can be imposed on a prison system by the courts.

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Rep. Mo Brooks deposed in Census lawsuit

Brandon Moseley

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Congressman Mo Brooks

Congressman Mo Brooks, R-Alabama, was deposed Thursday in a federal lawsuit over the Census. The deposition in the suit — State of Alabama & Mo Brooks v. U.S. Census Bureau & U.S. Department of Commerce — was taken virtually in Brooks’s district office.

“I was deposed yesterday in my ongoing legal battle against illegal alien counts determining how many Congressmen and presidential electoral college votes each state has,” Brooks said. “The attorneys who deposed me represented various illegal alien sanctuary parts of the country that hope to gain political power at the expense of Alabama and other law-abiding states. I steadfastly defended the Constitutional rights of Alabamians in the face of those who seek to undermine the rights of American citizens in favor of illegal aliens. The conclusion of this deposition makes us one step closer to a final judgement in this important case.”

In May 2018, Brooks and Alabama Attorney General Steve Marshall, on the state of Alabama’s behalf, sued in an attempt to force the U.S. Census Bureau and federal government to not include illegal immigrants in the apportionment of Congressional seats and Electoral College votes.

Brooks and Marshall contend that the 14th Amendment’s equal protection clause and the “one man-one vote” principle are being violated when non-citizens are used to determine apportionment and representation in the Congress.

President Donald Trump has publicly agreed with Marshall and Brooks. In July, he highlighted the importance of the case when he signed an executive order that excludes illegal immigrants from the part of the 2020 Census count that determines America’s representation in Congress.

The president’s executive order states: “The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term ‘persons in each State’ has been interpreted to mean that only the ‘inhabitants’ of each State should be included.”

“Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment,” the order continues. “For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are ‘persons’ who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically ‘in’ a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record. The discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.”

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“For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” Trump’s executive order continued. “Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.”

While Alabama has experienced some population growth in the last decade, it has not attracted nearly as many immigrants, both documented and undocumented, as states like Florida, California and Texas, thus not the same rate of population growth.

If the estimated 20 million people living in the U.S. illegally are counted in apportionment just like American citizens, Alabama is likely to lose representation in the U.S. House of Representatives.

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It’s also likely that Alabama could lose a seat regardless. Alabamians have done a lackluster job of filling out the 2020 census. As a result, it now appears highly likely, particularly if Brooks and the state of Alabama lose this lawsuit, that Alabama will lose one, and possibly two, of its seven Congressional seats beginning in the 2022 election.

Brooks represents the 5th Congressional District.

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