By Champ Lyons Jr, Retired Associate Justice, Supreme Court of Alabama
Liberals have historically dominated the field of advocacy for reform of laws applicable to sentencing of persons convicted of crimes. Conservatives have traditionally pushed back, condemning what they saw as unwarranted leniency. However, conservatives during the Trump administration re-evaluated the wisdom of continued adherence to previously unyielding stances on criminal justice reform.
This trend has also manifested itself to some extent in Alabama at various times in the years since the turn of the century. During the latter part of the Twentieth Century the view that very harsh sentences, especially those for repeat offenders, were necessary dominated the debate and the Alabama Legislature enacted the Habitual Felony Offender Act (“HFOA”). As time passed these standards were viewed as excessive. The Legislature has amended the HFOA by reducing the severity of sentences for terms of years to achieve sentences more appropriate to such offenses. In instances where a sentence of life without parole had once been mandatory under the HFOA the Legislature gave a judge discretion to choose life with parole under certain circumstances.
These changes in the laws were prospective only; persons previously sentenced were ineligible to seek an adjustment to conform their sentences with changes enacted after they had been sentenced. A statute was passed in 2001 allowing inmates sentenced under superseded laws to seek resentencing under certain conditions calculated to protect the public from release of persons not entitled to relief. It was repealed in 2015.
We are left with inmates serving sentences for offenses who today would not be punished with the same severity for the same offense. We have in many instances elderly prisoners serving these outdated sentences. A sense of fairness and compassion certainly supports the wisdom of remedying this situation. But, there is more than compassion driving the need for change. It is just plain old common sense and here is why.
Taxpayers spend around $25,000 a year to house prisoners. This figure is an average. For the ever increasing percentage of people 51 and older, including many geriatrics, the costs are higher. A sensible reduction in population, particularly the release of older, rehabilitated people serving sentences no longer applicable today, could reduce the need to totally replace existing prisons, thereby saving money that could be directed at smarter approaches, such as pretrial diversion, drug court, and re-entry — measures that give a defendant the opportunity to avoid the necessity for incarceration and its accompanying costs to the State. Common sense dictates that bricks and mortar alone should not be the solution.
To be sure, public officials, if they so choose, can always find an instance where an offender has been released and committed another crime and then try to paint a picture that wholesale instances of such activity, wreaking havoc, will surely be consequence of any civil justice reform. Such appeals are misleading. Not only do they erroneously apply a small percentage as indicative of the whole, they overlook the reality that every person sentenced to a term of years will someday be released, regardless of his or her propensity for commission of further crime. Use of such rhetoric to defeat reforms aimed at revising sentences of only those inmates who meet the criteria calculated to minimize the risk to the public is simply demagoguery.
The days of public officials responsibly and prudently identifying as “tough on crime” and then opposing any reform have come to an end. Alabama is a defendant in two cases in federal court in Montgomery. One of them has been ongoing for years and relates to charges of inadequate facilities to assure mental health of prisoners leading to violence and suicides. At this time a multi-week trial has begun. An indifference to this issue will increase the likelihood of a federal remedy that will impact our already strained budgets.
In the second case, what began as an investigation by the U.S. Department of Justice (“DOJ”) under the Trump administration escalated into a federal court case before President Trump left office. Now, the Biden DOJ charges that Alabama has violated and is continuing to violate the Constitution because our prisons are riddled with prisoner-on-prisoner and guard-on-prisoner violence leading to homicides, rapes, and serious injuries.
Overcrowding is a catalyst for the occurrence of the events alleged in the DOJ litigation. Complaints about overcrowded prisons in the past have often triggered a quick retort that prisons were never meant to be resorts. I have seen the overcrowding first hand- a massive room that could be an indoor athletic facility with the customary high ceiling, the roar of fans sucking in outside air that has not been anywhere near a source of cooling, lights on 24-7 beaming down on row after row of beds jammed together about one yard apart and filled with prisoners occupying upper and lower bunks. The old resort retort should fall on deaf ears in federal court litigation over violence that is a reasonably anticipated result of forced cohabitation under such extreme conditions. Indifference to the claims in the DOJ proceeding is also likely to lead to costly federal mandates.
The exposure in these cases is not simply the diversion of revenue. In 2011 the United States Supreme Court ordered California to release more than 30,000 inmates from its prisons because of inadequate medical care and dangerous overcrowding after the state had kicked the can down the road one too many times. We now face proceedings with similar claims of inadequate medical care and dangerous overcrowding.
The existing motive of compassion for the inmates should now have a new ally, a hefty dose of common sense. The time has come to act but, act with reasonable limitations. Failure to do so risks significant challenges in the next election for incumbents in the Legislature who have no good answer to those who would be able to say, “What were you thinking when you let this situation lead to rigid, extremely costly and/or potentially dangerous consequences of stringent federal court orders?”
Turning to reasonable limitations, safeguards must be included in any remedy allowing resentencing so as to allay the just concerns of those who foresee release of dangerous criminals as the result of correction of sentences handed down under now outdated standards. Specifically, any such remedy should be simply unavailable to inmates whose violent crimes involved physical injuries, including non-consensual sexual contact, and also for those who lack a record of good behavior while incarcerated. Denunciation of any such reforms as likely to wreak havoc may sound good to a candidate’s political advisers but, if the strategy succeeds, it will come with a price that will truly wreak havoc.
Liberals and conservatives alike can and should unite behind the causes of compassion and common sense. The result will be a better Alabama for all of its citizens, thereby promoting a healthy and sound climate that produces growth and prosperity. The time to come together is now.