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Letter to lawmakers: Repeal Alabama’s Habitual Felony Offender Act

165 former judges and prosecutors, professors and public defenders signed on in support of Rep. Chris England’s bill to repeal HFOA.

(STOCK PHOTO)

In a letter to Alabama lawmakers Monday, attorneys across the state urge for their support of Tuscaloosa Democratic Rep. Chris England’s House Bill 107, which would repeal Alabama’s Habitual Felony Offender Act. 

Signing the letter were 165 retired judges, former prosecutors, law professors, public defenders, civil rights attorneys and solo practitioners who support repealing the HFOA, which can allow for sentences of life without parole if individuals are convicted of one class A felony after having been convicted of nonviolent drug and property crimes.

More than 1,600 Alabamians are currently sentenced to life or life without parole under the law, according to a press release from the Alabama Appleseed Center for Law & Justice. 

“The Habitual Felony Offender Act has resulted in unfortunate consequences for courts, prisons, and particularly the individuals impacted by this outdated law. After careful study, I have been pushing for full repeal of the HFOA for years,” said Bill Clark, past president of the Alabama State Bar and a Birmingham attorney, in a statement. “It’s clear to me that the HFOA has contributed to Alabama’s prison crisis and if this state is serious about addressing the unconstitutional conditions identified by the U.S. Department of Justice, passing HB 107 and repealing the HFOA should top the legislature’s priorities for reform.”

Clark has served on the Alabama Law Institute Committee and the Advisory Committee of the Alabama Supreme Court on Indigent Defense Reform.

The letter notes that the HFOA enhances any subsequent felony conviction without regard to the severity of the previous offense or the time period that separates them, it permits sentences of life without the possibility of parole in cases with no physical injury and allows prior convictions committed when individuals were less than 18, as well as low-level drug and property crimes, to be used for enhancement purposes

England’s bill does not call for automatic release, and if the HFOA is repealed, the state’s remaining sentencing laws would allow prosecutors to seek life sentences for the most serious violent felonies, including murder, rape and kidnapping, the letter reads. Sentences of life without parole or death for capital murder convictions, including the murder of a law enforcement officer, would also still be available.

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“I spent my entire legal career working in the criminal courts of Jefferson County, first as a prosecutor then as a circuit court judge. More than three decades of experience has shown me that the Habitual Felony Offender Act has not kept Alabamians safer,” said former Jefferson County Circuit Court Judge and former prosecutor Laura Petro, in a statement. “Instead, the law’s requirements ensure that the people most likely to age out of crime remain incarcerated. In a number of cases, I reviewed petitions from individuals who had served 20 to 30 years and whose convictions caused no physical injury who had shown remarkable rehabilitation. They deserved a second chance. But my hands were tied because of the HFOA’s requirements. HB 107 would give the judges of Alabama the ability to use their discretion and help correct this misguided law.”

The Alabama House Judiciary Committee on Jan. 4 sent England’s HB107 to a subcommittee for further work after facing a challenge from Rep. Matt Simpson, R-Mobile, a former prosecutor who argued that repealing the HFOA would limit the length of sentences that might be imposed by a judge on a repeat offender. 

England responded during the Jan. 4 hearing that judges would still be able to impose the most stringent sentences available if the act were repealed, but doing away with the HFOA would also allow the offender to be eligible for parole at some point in the future. A copy of the letter is below.

Dear Lawmaker:

Alabama’s Habitual Felony Offender Act (HFOA), Ala. Code 13A-5-9, is the harshest repeat offender law in the Southeast, with the exception of Mississippi. Alabama’s HFOA enhances any subsequent felony conviction without regard to the severity of the previous offense or the time period that separates them. It permits sentences of life without the possibility of parole in cases with no physical injury. It allows prior convictions committed when individuals were less than 18, as well as low-level drug and property crimes, to be used for enhancement purposes. As a result, nearly 5,600 individuals in Alabama are serving long prison sentences enhanced by the HFOA, including more than 1,600 lifers.

HB 107, sponsored by Rep. Chris England, would repeal the HFOA and provide an opportunity for resentencing. As attorneys in Alabama who understand the desperate need for sentencing reform in our state, we support HB 107. We urge the Alabama Legislature to pass HB 107 this session for the following reasons:

The legislature-approved Sentencing Guidelines, adopted in 2015 and made mandatory in 2017, provide for entirely different sentencing structures for offenses that once required a life or life without parole sentence. Because these Guidelines were not made retroactive, individuals in their 50s and 60s who have served the longest sentences remain incarcerated with no chance for release, even if they have demonstrated extraordinary rehabilitation. This is neither just, nor smart public policy.

The older people serving life and life without parole under the HFOA are both the most costly to incarcerate and the least likely to reoffend. Government data shows that re-offense drops dramatically as people reach their 40s to almost zero by age 60, thus there is no public safety justification for these sentences.

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The HFOA has resulted in grossly disproportionate sentencing. For example, 239 people are serving sentences of life without parole whose most serious offense was robbery, most often with no physical injury. Individuals convicted today of the most aggravated types of murder, including murder of a child, can receive this exact sentence, life without parole, despite the dramatically different nature of this offense. Additionally:

  • 100 people in this population have served at least 30 years in prison;
  • 208 people are over 50 years old, 19 are over 70.

HB 107 gives Alabama’s Circuit Court judges discretion in reviewing life without parole sentences imposed decades ago and to revisit those sentences in circumstances where incarcerated people in their 50s and 60s have engaged in positive programs, demonstrated rehabilitation, and are no risk to public safety if resentenced and released. Let’s be clear: HB 107 does not call for automatic releases.

The HFOA is not necessary to secure lengthy incarceration of dangerous offenders. Should the HFOA be repealed, the remaining sentencing laws in Alabama permit prosecutors to seek life sentences for the most serious violent felonies, including murder, rape, and kidnapping. And, sentences of life without parole or death for capital murder convictions, including murder of a law enforcement officer, are still available.

Now that the United States Department of Justice has determined that conditions throughout Alabama’s prison system for men violate the Eighth Amendment’s prohibition against cruel and unusual punishment, it is past time for our state to take seriously the chronic overcrowding in our prisons. HB 107 provides a mechanism to do so without compromising public safety and without relying on the federal government to undertake this responsibility for us.

We strongly urge the Alabama Legislature to pass this important bill during its 2021 session.

[The letter and the full list of signatories can be found here]

Eddie Burkhalter
Written By

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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