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Justice Department report finds systemic excessive use of force by prison guards, attempted cover-ups

Eddie Burkhalter

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The U.S. Department of Justice on Thursday released a report that details why the federal government believes systemic use of excessive force within Alabama’s prisons for men violates the Eighth Amendment. 

The Department of Justice’s Civil Rights Division and the U.S. Attorneys’ Offices for the Northern, Middle and Southern Districts of Alabama found systemic problems of unreported or underreported excessive use of force incidents, a failure to properly investigate them and attempts by correctional officers and their supervisors to cover them up. 

“Specifically, the department concluded that there is reasonable cause to believe that prisoners are subjected to excessive force at the hands of prison staff,” the Justice Department said in a press release. 

The report was expected and follows the DOJ’s previous report released in April 2019, that found that Alabama’s prisons for men were likely violating inmates’ rights to protection from sexual abuse and physical harm. 

In a letter Thursday to Gov. Kay Ivey accompanying the report, the U.S. attorneys who worked on the report wrote that the U.S. attorney general can file a lawsuit against the state if Alabama fails to “satisfactorily address conditions in the prisons within 49 days, although it states the federal government hopes to resolve this matter through a more cooperative approach and look forward to working with you to address the alleged violations of law we have identified.”

State officials and ADOC administrators haven’t yet made substantive corrective actions regarding the previous April 2019 Justice Department report, however, so it’s unclear whether the department’s new threat of a lawsuit would result in prompt action on the new findings.

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“The Constitution guarantees prisoners the right not to be subjected to excessive force and to be housed in reasonably safe conditions,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division, in a statement. “Our investigation found reasonable cause to believe that there is a pattern or practice of using excessive force against prisoners in Alabama’s prisons for men. The Justice Department hopes to work with Alabama to resolve the department’s concerns.”

“I am proud of the work being done to protect the constitutional rights of Alabama prisoners,” said Acting U.S. Attorney for the Northern District of Alabama Lloyd Peeples in a statement. “Systemic constitutional violations such as these cannot be ignored and require a comprehensive approach to addressing these problems. We continue to be committed to ensuring that the state implements meaningful reform to meet its constitutional obligations.”

Severe overcrowding and understaffing contribute to the “patterns or practices of uses of excessive force,” the report states. Alabama’s 13 mens’ prisons as of January held 6,000 more inmates than capacity allowed. 

“The severe and pervasive overcrowding increases tensions and escalates episodes of violence between prisoners, which lead to uses of force,” the report reads. 

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Short staffing has resulted in an increase in use-of-force incidents, and as a result, an equal increase in excessive use-of-force incidents, the federal investigators found. 

“In addition, inadequate supervision and the failure to hold officers accountable for their behavior contribute to an increase in the incidence of excessive force,” according to the report. 

“These uses of excessive force—which include the use of batons, chemical spray, and physical altercations such as kicking—often result in serious injuries and, sometimes, death,” the report continues. 

The report details the beating death by correctional officers of 35-year-old Steven Davis at Donaldson prison in October 2019. Officers said Davis refused to drop two prison-made weapons, which resulted in them using force that killed him. 

Federal investigators, however, found that the use of force was excessive and resulted in multiple fractures and  “16 separate and distinct injuries to the prisoner’s head and neck.” 

“Numerous prisoner-witnesses, however, reported that correctional officers continued to strike the prisoner after he dropped any weapons and posed no threat,” the report states. 

The report also notes the use-of-force death of Michael Smith, 55, at Ventress prison in December 2019, in which “ADOC personnel informed hospital medical personnel that the injuries occurred after the prisoner fell from a bunk bed.” 

“The autopsy revealed that the prisoner died from blunt force trauma to the head. He sustained multiple areas of intracranial bleeding, fractures of his nose and left eye socket, and had at least six teeth knocked out,” federal investigators wrote in the report. 

Two correctional officers were placed on mandatory leave while that death was being investigated, the report states. 

Investigators also believe that many other excessive use of force incidents are going unreported or are underreported and that ADOC’s investigative component often finds use of force incidents as “unsubstantiated” but that the case files lack critical information. 

Investigators poured over hundreds of thousands of documents, conducted site visits to the prisons between February 2017 and January 2018, and interviewed over 270 inmates. 

ADOC’s incident reporting system in 2017 documented 1,800 uses of force incidents, but investigators found that “a large number of reported uses of force were unjustified under the legal standard.” 

Despite the large number of use-of-force incidents, a small fraction are investigated above the prison-level and sent to ADOC’s Investigations and Intelligence division. 

Also troubling is the method in which I&I conducts investigations into use of force incidents, the report states. The investigative arm of ADOC “requires proof beyond a reasonable doubt in order to refer a use of excessive force for prosecution.” 

“While using this heightened burden of proof is appropriate for criminal prosecutions, it should not be employed by a prison system making a criminal referral as it interferes with prosecutors’ evaluation of a case and decision on whether to prosecute,” the report states. “In other words, by requiring proof beyond a reasonable doubt to refer a matter for prosecution, I&I limits the number of uses of force that are reviewed by outside prosecutors.” 

Despite a great many use-of-force incidents resulting from an inmate being in debt to another inmate, often over drugs, it’s rare for an investigative report to note anything about the debt, and “correctional supervisors typically do not document any attempt to uncover the source of the illicit substance in their investigations.” 

The report detailed serious incidents of excessive use of force. 

“In September 2019, a lieutenant at Ventress lifted a handcuffed prisoner up off the ground and slammed him on a concrete floor several times, knocking him unconscious. The prisoner was unable to breathe on his own, was intubated, and taken to an outside hospital, where medical personnel administered CPR several times to keep the prisoner alive.” 

In another violent incident in December 2018, a correctional officer “hit, kicked and struck” and handcuffed prisoner, who had not provoked the beating, in the infirmary at Ventress prison. During the beating, four nurses heard the officer yell “I am the reaper of death, now say my name!” and the prisoner begging for the officer to kill him. 

The officer put his foot on the inmate’s face to grind his head into the floor, and a nurse intervened, yet the officer tried it again and the nurse told him to calm down, the report states. 

“The officer then paced the floor with the prisoner’s blood on his clothing and, before leaving the medical unit, told the health care workers that they did not see anything. The officer filed a false incident report stating that he did not hit the prisoner,” the report states. 

I&I investigated and found that there was an unjustified excessive use of force, but nothing became of it, according to the report. 

“Despite I&I’s conclusions, we saw no indication in the documents ADOC provided us that I&I referred the matter for criminal prosecution or that ADOC imposed discipline,” investigators wrote in the report. 

In October 2016, a lieutenant and a sergeant tried to intervene when a “mob of officers” surrounded a handcuffed inmate, and the sergeant was sprayed in the side of his face with chemical spray, and three officers then began beating the inmate with fists and batons. 

“When the sergeant attempted to regain control of the prisoner, he was pushed back by one of the officers and the beating resumed. I&I investigated and referred the matter to the local district attorney for possible criminal prosecution. The documents ADOC provided us do not show that discipline was imposed,” the report states.

Officers also often illegally use violence as punishment, and notes numerous such instances, many without evidence that the officers were held accountable. 

ADOC’s policies on the use of chemical agents, such as peppers spray, in prisons is that they may be used to gain control of a situation, but the report notes that “ADOC correctional officers often ignore ADOC’s regulation and use chemical spray inappropriately.” 

“Chemical spray is regularly used as retribution. These kinds of applications of chemical agents violate the Constitution,” the report reads. 

Investigators found that in addition to excessive use of force, officers are often not held accountable, and wardens are given “far too much discretion in determining whether a use of force should receive further scrutiny by I&I.”

Officers also often fail to report incidents, and the report states “It is especially troubling that supervisors often fail to document, investigate, or otherwise address uses of force, demonstrating a deliberate indifference to the harms to prisoners caused by the use of excessive force.” 

Reports are often falsified by officers and by their supervisors, and that one former officer told investigators that “some nurses help correctional officers ensure that injuries caused by uses of force are concealed and not properly documented on body charts.” 

Inmates are sometimes placed in segregation cells so that wounds can heal and not be documented. 

“In one incident at Bullock, a prisoner was taken to the floor, handcuffed, kicked, and stomped on the head by at least three correctional officers. Over one month after the incident, the prisoner was taken to an outside hospital for treatment of his injuries,” investigators wrote. 

In 2017, there were 1,800 use-of-force incidents, and captains or wardens sent 35 to I&I to investigate, but only 14 were investigated, the report reads. 

“Very few I&I files contained surveillance video related to the incident under investigation even at facilities where video was available,” investigators found, and documentation in investigative files were substandard and lacked vital information.

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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Inmate assault injures two St. Clair prison correctional officers

The assaults happened at approximately 7:30 p.m. and both officers were taken to a local hospital and treated for those non-life-threatening injuries.

Eddie Burkhalter

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Two correctional officers at St. Clair Correctional Facility were injured in an inmate-on-officer assault on Monday, the Alabama Department of Corrections confirmed to APR.

Among the two officers who sustained non-life-threatening injuries was a basic correctional officer (BCO), a position created in May 2019, who are not Alabama Peace Officers Standards and Training Commission (APOST) certified and who cannot transport inmates, work perimeter fencing or in towers.

The other officer injured was a full correctional officer, Alabama Department of Corrections spokeswoman Samantha Rose told APR in a message Friday. The assaults happened at approximately 7:30 p.m. and both officers were taken to a local hospital and treated for those non-life-threatening injuries and subsequently released, according to Rose.

“The ADOC condemns all violence in its facilities, and the actions taken by the inmate against ADOC staff are being thoroughly investigated,” Rose said. “As the investigation into this incident is ongoing, we cannot provide additional detail at this time. More information will be available upon the conclusion of our investigation.”

The ADOC created the new basic correctional officer position to bolster the state’s woefully understaffed prisons. The creation of the position was also at the suggestion of experts ordered by a federal court to study the department’s staffing problems, ADOC attorneys wrote to the court in a filing in 2019.

The ongoing lawsuit is over the state’s handling of mental health in prisons.

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The Southern Poverty Law Center and the Alabama Disability Advocacy Program filed the 2014 suit arguing the state was indifferent to the health of inmates dying by suicide in greater and greater numbers.

Attorneys for the plaintiffs in June argued that ADOC was far behind on the court-ordered hiring new additional officers. It has been more than two years since U.S. District Judge Myron Thompson ordered the Alabama Department of Corrections to hire an additional 2,000 correctional officers by 2022.

U.S. District Judge Myron Thompson in a previous opinion wrote that prison understaffing “has been a persistent, systemic problem that leaves many ADOC facilities incredibly dangerous and out of control.”

“Taken together, ADOC’s low correctional-staffing level, in the context of its severely overcrowded prisons, creates a substantial risk of serious harm to mentally ill prisoners, including continued pain and suffering, decompensation, self-injury, and suicide,” Thompson’s previous opinion continued.

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The SPLC in court filings late last year expressed concern over the use of basic correctional officers in Alabama’s overcrowded and understaffed prisons. ADOC attorneys have argued to the court, however, that BCO’s are adequately trained to do their jobs and are needed for the department to hire the necessary number of officers per the court’s timeline.

In a court filing on Thursday, attorneys for the plaintiffs asked the court not to again delay site visits to Alabama prisons by two experts who are tasked by the court to determine which positions should be filled by correctional officers and which by BCO’s and which by another new position, called cubical correctional officers, who are to have no direct interaction with inmates.

Those visits were to begin in May, but both parties in the suit agree to wait due to the COVID-19 pandemic and the threat it posed to the experts, who are particularly vulnerable to the disease due to “age and other factors,” according to court records.

Both parties again agreed to postpone those visits in June for those same reasons, those records show. ADOC seeks a third extension but attorneys for the plaintiffs argue that the experts can visit the prisons while keeping themselves, prison staff and inmates safe from harm of COVID-19 and that thousands of employees and contractors enter Alabama prisons daily.

The plaintiff’s attorneys argue in the court filing that the expert guidance is needed because ADOC wishes to use BCO’s and cubical correctional officers to comply with the court-ordered hiring of additional staff by Feb. 20, 2022.

“Ensuring adequate staffing is of upmost importance to address the constitutional violations underlying mental health care within ADOC,” the plaintiffs’ attorneys wrote to the court Thursday.

ADOC in May was employing 494 BCO’s, a 57 percent increase in the number of BCO’s employed in Oct. 2019, according to ADOC’s staffing numbers. The number of correctional officers working in Alabama prisons fell by two percent during that time, dropping from 1,319 to 1,287.

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Governor announces $219,000 in grants for ALEA

A $168,975 grant will be used toward a federally mandated sexual offender registration and residency program, according to Gov. Kay Ivey’s office.

Eddie Burkhalter

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Gov. Kay Ivey on Thursday announced $219,764 in grants to the Alabama Law Enforcement Agency (ALEA) to bolster the state’s oversight of those convicted of sex offenses. 

A $168,975 grant will be used toward a federally mandated sexual offender registration and residency program, according to Ivey’s office. Sexual offenders must register and report where they live after being convicted, and the funds will aid law enforcement officers in verifying those placed on the registry are meeting those requirements. 

An additional $50,789 grant is to be used to transition to a more comprehensive crime reporting system by a federally mandated 2021 deadline, according to Ivey’s office.

The new system will provide more detail about crimes, including the type of weapons used and characteristics about the location of crime, such as if it occurred in a rural or urban area.

“Protecting communities from sexual predators and reporting accurate records of crime statistics are high priorities for all law enforcement in Alabama,” Ivey said in a statement. “I commend ALEA for its commitment to making sure it stays in compliance with federal laws and working to close cases on known offenders.”

The U.S. Department of Justice grants will be administered by the Alabama Department of Economic and Community Affairs (ADECA).

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“ADECA joins Gov. Ivey in supporting ALEA’s efforts to protect our communities from sexual predators and to make it easier for law enforcement agencies to share vital information with each other,” the director of ADECA, Kenneth Boswell, said in a statement.

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Opinion | A gruesome murder should point Montgomery in a new direction

The city didn’t arrive overnight at a place where 16-year-old girls are drinking smoothies after a gruesome murder, and the road out of it won’t be a short one either.

Josh Moon

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Montgomery's skyline (STOCK PHOTO)

The facts of 17-year-old Luna Pantaleon’s death are hard to stomach. The Montgomery teen was beaten with a metal pole and left to drown in a ditch. Her face was so badly beaten, with so many facial fractures, that the exact cause of her death couldn’t immediately be identified.

Her alleged killers are three 16-year-old girls. They reportedly went to McDonald’s after the murder and had smoothies. 

Those details were provided during a court hearing on Wednesday as reported by the Montgomery Advertiser. They are enough to cause you to pause while reading to take a deep breath. But these details are not the only ones that should get attention. 

The testimony of a Montgomery police detective who investigated the crime, and who interviewed the three girls who have essentially admitted to the crime, provided other disturbing details that paint a picture of the lives of Montgomery’s underprivileged youth — lives filled with violence and firearms, with late-night fights and “hits” put out on houses by 10th graders. 

This reality for many young people in Montgomery isn’t exactly a hidden secret. 

I can’t tell you the number of homeless teenagers I spoke with or tried to help while in Montgomery. I can’t tell you the number of conversations I had with middle schoolers who were in gangs, and who spoke openly about carrying handguns and other semi-automatic weapons. 

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Don’t get me wrong. Montgomery is not the wild west, and every poor, Black person in the city isn’t part of a gang or spending their nights shooting at each other. 

But there is a level of violence and bad behavior that is growing and taking root in many communities. And it is happening because too many young people in those communities see no other viable alternatives. 

A never ending cycle of poverty and despair — a cycle that has lasted, in some cases, for multiple generations — has left them turning to other means of getting by, of finding love and acceptance, of finding guidance no matter how misguided that guidance might be. 

And every bit of it can be traced back to one problem: education. Or, in Montgomery’s case, the lack of it. 

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Segregation was common in all of Alabama in the 1950s and ’60s, but few cities in America clung to it as tightly as Montgomery did. When the Brown v. Board decision came down, private schools in Montgomery started to pop up — at one point a record number of them. And as the population grew, so too did the cities and the school systems surrounding Montgomery. 

In 2020, Montgomery’s private schools are more than 90 percent white. Montgomery’s public schools are more than 95 percent Black. Those numbers have not changed much over the years. 

But even more problematic is that Montgomery’s public schools are also serving a disproportionate amount of low-income students. That most of the poor people in Montgomery happen to be Black is a simple byproduct of the racism that saw Black citizens denied work, denied decent business loans, denied home loans for certain areas and denied acceptance into most state universities. 

And having a high number of low-income students means fewer resources, fewer involved parents and more students who struggle through no fault of their own, because working parents weren’t home to help with homework, or they don’t have internet service. It goes on and on and on.

Now, repeat those problems for a few generations. And, well, you get the idea. 

Exacerbating the problem for Montgomery, though, is a screwed up funding structure that has left its schools funded at the state’s lowest allowable levels. There will be an opportunity for Montgomery residents to fix that during Tuesday’s election by voting to increase property tax rates in the county. 

It is money that is desperately needed. But that money alone will not solve the issues. Because we’re way too far down the line at this point for a few dollars to fix what’s broken in Montgomery. 

It’s going to take the entire community putting aside their differences and their finger-pointing and their hate and actually working towards solving the problems, instead of just constantly pointing them out. It’s going to require a bunch of people to stop believing that skin color somehow makes a child less worthy of a quality education or more likely to be a criminal.

Mayor Steven Reed and several others have done a remarkable job to this point bringing together groups of people who have historically opposed any tax increases for the schools. He’s going to have to build on that goodwill going forward. 

Because while more money will certainly make a difference, it won’t put a parent in place. It won’t assure kids are getting quality medical care and mental health care. It won’t put food on the table at night or turn the broadband on. 

There will need to be more education options opened up for adults. There will need to be more comprehensive options available in some communities. This will take time and money, and it won’t be easy.

But here’s the one thing I know: the overwhelming majority of people in this world, and in Montgomery, want to succeed. They want to take care of themselves and their children. They want their kids to receive a decent education. They want a good job and to pay their bills and sleep easy at night. 

If you show them a pathway to such a life, they will take it. 

The city didn’t arrive overnight at a place where 16-year-old girls are drinking smoothies after a gruesome murder, and the road out of it won’t be a short one either. But passing this tax increase, and the community-wide dedication to this cause that it represents, is a damn fine start.

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Alabama Constable Association: Amendment 2 could defund constables statewide

Amendment 2, if approved, would delete language protecting how constables are funded statewide.

Eddie Burkhalter

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If Amendment 2 on the Nov. 3 ballot is approved by Alabama voters, it could pave the way for an end to an office in Alabama with a history in the U.S. that dates back to the 17th century, according to the Alabama Constable Association. 

Chauncey Wood III, president of the Alabama Constables Association, reached by phone Monday, referred a reporter to a pending press release from the association. Jonathan Barbee, constable for Jefferson County and the association’s spokesman, said in the statement Monday that the association is concerned with several aspects of Amendment 2. 

If approved, the amendment would process numerous changes to the state’s judicial system, including a change that would allow Alabama Supreme Court, rather than the chief justice, to appoint the administrative director of courts.

It would also increase the Judicial Inquiry Commission from nine members to 11 and would allow the governor, rather than the lieutenant governor, to appoint a member of the Court of the Judiciary. The amendment would also prevent automatic disqualification from holding public offices for a judge solely because a complaint was filed with the Judiciary Inquiry Commission. Additionally, it would provide that a judge can be removed from office only by the Court of the Judiciary.

Amendment 2 would also “delete certain language relating to the position of constable holding more than one state office,” and Barbee, in his statement, explained that the amendment could defund Constables statewide if counties chose to do so. 

“Constables are not taxpayer-funded, they are largely voluntary Peace Officers,” Barbee said. “The fees they collect from their duties as Officers of the Courts allow them to support the expenses of the office such as vehicles, uniforms, and equipment. Amendment 2 also deletes the language protecting how Constables are paid by private court fees, leaving it in question for the appointed Administrator to decide.”

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In Alabama, constables are elected peace officers and act in many of the same ways as do sheriff’s deputies. They’re able to make arrests, serve court papers and provide security for parades, funerals and the like. 

Amendment 2 was sponsored by Alabama Sen. Arthur Orr, R-Decatur. Orr, in a message to APR on Monday, said that the portion of the amendment dealing with constables was drafted by an Alabama Law Institute committee, headed at the time by the institute’s deputy director at the time, Clay Hornsby. Orr referred questions about the matter to Hornsby. 

David Kimberley, acting deputy director of the Alabama Legislative Services Agency’s Law Institute, told APR that he took over as acting deputy director since Hornsby’s departure on Aug. 1. 

If the amendment is approved by voters, Kimberley said that a county that wants to keep their constable can do so, but that the amendment is an acknowledgement that there are few constables left in the state and it’s approaching becoming “an archaic position or office.” 

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“It was noted that only 24 out of the 67 counties currently have constables. Most of all the services of constables are duplicated sheriff’s deputies,” Kimberley said. “And it was essentially just an acknowledgement of what seemed to be a gradual phase out of this office in the state of Alabama.” 

Read Barbee’s full statement below: 

The Alabama Constables Association has joined other law enforcement and conservative groups in urging voters to vote “NO” on Amendment 2 in the general election on November 3rd.

Constable Jonathan Barbee, the Association’s Public Information Officer, said in a statement:

“We’re very concerned about several of the parts of Amendment 2, starting with the overall size and complexity of the Amendment. Typically, proposed constitutional amendments deal with only one or at most a few issues. Amendment 2 proposes SIX different changes to the State Judicial System, some of which drastically change the way we do things in Alabama.

“Amendment 2 could harm small communities by allowing county district courts to discontinue having municipal courts in cities with populations of less than 1,000.  Municipal courts are typically held at night, making it easier for working people to attend.  Without these small municipal courts, residents would have to spend most of a day at the county seat, losing a day of work or being forced to burn a vacation day for something that now is usually settled in an evening. It also indirectly attacks and defunds the Police departments of these towns, because their city courts are a significant source of revenue to help keep Officers on patrol. This part of Amendment 2 strikes at our small communities, drawing power to the larger county seats.

“Amendment 2 also removes the ability of the Legislature to impeach Judges, making the unelected, unaccountable to the people, Court of the Judiciary as the only body that can remove a Judge from the bench. Every citizen in Alabama should be concerned about this, because it effectively takes away their ability, acting through their elected representatives in the Legislature, to remove a bad Judge from their position.

“Amendment 2 allows Judges to continue working when complaints are filed against them with the Judicial Inquiry Commission.  We understand that automatically removing a Judge just because a complaint has been filed can lead to problems and abuses of the system, but these can be settled in a timely manner by the JIC. The alternative, which Amendment 2 will create, would allow Judges who need to be removed to continue hearing cases, and give them a legal basis for fighting their removal. We believe this has the potential for much more serious problems to arise within our courts.

“Amendment 2 could also defund Constables by removing our ability to serve as Constables while also working in another position with the State or County. Constables are not taxpayer-funded, they are largely voluntary Peace Officers. The fees they collect from their duties as Officers of the Courts allow them to support the expenses of the office such as vehicles, uniforms, and equipment. Amendment 2 also deletes the language protecting how Constables are paid by private court fees, leaving it in question for the appointed Administrator to decide. This could effectively defund the Office of Constable statewide, which removes the protection and services Constables provide in their communities at no cost to the taxpayers of Alabama. Over the last year, at least two Constables were responsible for saving several lives during medical emergencies, Constables in Jefferson County have been helping with traffic control and schools, and one Constable assisted with a large drug interdiction arrest. We feel this is an unnecessary and unwarranted attack on the oldest elected law enforcement position in the nation.

“There are other problems with this Amendment. Amendment 2 mandates that the entire Alabama Supreme Court, instead of the Chief Justice, appoint the Administrative Director of Courts. It would be a change from having a single elected, accountable official being responsible for this appointment to having it done by committee. Once the Administrator is appointed they could, in fact, serve a lifetime appointment.  Amendment #2 would also remove the ability of Alabama’s elected Lieutenant Governor to appoint one member of the Court of the Judiciary, giving that ability and more control to the Governor, who already appoints two members.  

“Many of these points are not easy to find, because the forces behind this Amendment have purposefully omitted them from the official documentation provided to the Alabama Secretary of State’s office. If for no other reason than this deliberate obfuscation of the true contents of this Amendment, it should be voted down. The people of Alabama deserve better than this attempt by special interests to radically change how our state’s Judicial system works, mostly as a smokescreen to hide how they will use it to protect bad Judges, inconvenience small-town residents, and make citizens across the state less safe.

“We urge the voters of Alabama to vote ‘NO’ on Amendment 2.”

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