On Dec. 4, 2019, the Governor’s Study Group on Criminal Justice Reform convened at the Alabama Statehouse to hear proposals from the public on how to address Alabama’s prison crisis. Appleseed Research Director Leah Nelson was among the 20 presenters, including families of the incarcerated, formerly incarcerated, advocates, academics, lawyers, direct service providers, and faith leaders who shared proposals.  Below are Leah’s comments, based on Appleseed’s extensive research around prison diversion programs.  

Montgomery, Alabama — My name is Leah Nelson. I’m research director at Alabama Appleseed. I have spent 2 years surveying and interviewing hundreds of people in drug courts and diversion programs.

What I learned is that these programs are too expensive for people who lack wealth to participate in them without making outrageous sacrifices. And they are not designed to accommodate the everyday realities of folks who have jobs, children, or other obligations they must attend to.

Appleseed’s Leah Nelson shares her research on Alabama’s two-tiered justice system with the study group.

How many people in this room could drop everything several times a week to drive to another county to leave a urine sample? How many could get most of a day off once every couple of weeks to spend hours in a courtroom waiting for our chance to speak with a judge? Now imagine doing that if you were a single mom, if you worked at a job that paid by the hour and had an unpredictable schedule, or if you didn’t have a car.

I’d like to tell you a little about two people who cannot be here today.

The first person is a man named Ryan, who is in drug court in Shelby County right this minute and who will go to work after he’s through.

Ryan exemplifies the shortcomings of the system as it currently exists. In 2017, he was convicted of unauthorized possession of a controlled substance and put on probation in Chilton County. In early 2019, he reoffended in Shelby County and was accepted into Shelby’s drug court, widely acknowledged to be one of the toughest in the state.

 

Ryan excelled in rehab and got his life back together, but he didn’t understand he was supposed to still be checking in with his probation officer in Chilton. He thought his supervision had been consolidated in Shelby. When he learned there was a warrant out for his arrest, he turned himself in. He sat in jail for 3 months while much of the work he had done to rebuild his life disintegrated. He’s out now, but he’s struggling. He earns $400 a week to support himself and his young son. Between drug tests, supervision fees, drug court fees, and fines, he pays about $700 a month. That’s almost half of his income.

The second person I’d like to tell you about is a woman named Amber.

Amber was released from Tutwiler into Madison County Community Corrections this fall. She was so relieved be get home and get back to supporting and caring for her two teenaged sons. She received job training and multiple certifications while she was in Tutwiler. She couldn’t wait to get to work.

And she had to work, because Community Corrections requires her to pay $290/month for electronic monitoring plus another $20/week for drug tests. She had to bring them the first installment within 24 hours of her release or she’d be taken straight back to prison.

Amber has been offered multiple jobs, only to show up for the first day of work and be told they didn’t need her after all because of her felony. Right now, she brings home about $250 per week from unskilled labor she found through a staffing agency which takes part of her paycheck. About a third of her monthly income goes toward electronic monitoring and drug tests alone. That’s unsustainable.

 

A packed room gathered to hear public proposals at the December 4 meeting of the Governor’s Study Group on Criminal Justice Reform.

 

 

She’s terrified of what going back to Tutwiler would mean for her family. When we spoke in late November, she wasn’t sure she’d still be home to spend Christmas with her boys.

Amber and Ryan are far from alone in struggling with the financial and operational obligations of diversion programs in Alabama. These programs have been described to the governor’s study group as unfunded, but that’s not accurate. The state doesn’t pay for them: instead, in most places, diversion programs are funded by the people who participate in them. And those payments are made at a terrible cost.

In 2018, Appleseed worked with partners to survey nearly 900 Alabamians about their experience with the courts. About 20% of the people we surveyed reported they were turned down for a diversion program like drug court because they could not afford it. About 15% had been kicked out of a diversion program because they were unable to keep up with payments.

In 2019, we followed up with a survey of a smaller group of people, all of whom had participated in some form of diversion program. Most of the people we surveyed were poor. 64% of them made less than $20K/year.

Most of them had been found indigent. Most of them had no idea how much the program would cost before they pled in. Yet they were still required to pay a median amount of $1500. Only one in 10 had ever had their payments reduced due to inability to pay.

Without that relief, two thirds gave up a basic necessity like food, rent, or car payments to keep up with their payments. More than a third took out a payday loan. And 30% admitted they had committed a crime to keep up with their payments.

Even so, 30% were forced to drop out because they couldn’t afford it or couldn’t keep up with the frequent drug tests and court appearances. The consequences were dire: One-fifth of people who were unable to complete their diversion program for structural or financial reasons found themselves incarcerated as a result. Our failure to make these programs workable for poor people is driving prison overcrowding.

Alabama can and must make diversion programs more accessible to poor people. To start with, judges should conduct individualized ability to pay determinations that take people’s financial realities into account.

Second, programs should be portable and easy to consolidate. As a rule, no one should be on more than one form of diversion or paying for supervision by multiple jurisdictions or entities. And folks should be able to serve their sentences where they live, not where they offended.

Finally, all diversion programs should track individuals’ progress and remain vigilant about how they can do better.  If these programs are to serve their purpose of giving Alabamians who have made mistakes a second chance and keeping families and communities healthy and strong, they must account for the everyday realities of the people who participate in them.

There is a lot of promise in diversion, but these programs are not accessible to people who lack wealth. If we don’t take steps to correct this, Alabama will continue to have one form of justice for the rich and a very different one for the poor.

In January, 2019, Appleseed will release its full report on the two-tiered justice system created by prison diversion programs funded on the backs of participants.

By Carla Crowder, Executive Director

A few weeks ago, a search dog working for Alabama’s Department of Corrections sadly died after exposure to contraband narcotics.  ADOC leadership, including Commissioner Jefferson Dunn, gathered for his funeral complete with 21-gun salute, an American flag presentation, and media coverage. His name was Jake.  

Over the last two years, at least 22 people in state prisons have also died from narcotics overdoses, primarily synthetic cannabinoid, according to a U.S. Department of Justice report, which suggests ADOC staff who are not screened before entry are likely responsible.  Prison incident reports list these deaths as “natural.”

We don’t know their names.

Why? Because Alabama’s 45-year history of incarcerating vast numbers of people cheaply has produced disastrous results. 

We failed in 1975 when U.S. District Judge Frank Johnson found “massive constitutional infirmities which plague Alabama’s prisons.”  And we are failing now with violence, homicide, and drug overdoses so pervasive that the ADOC cannot keep track of who dies in its custody, as the U.S. Justice Department documented in April after its two-year investigation again found our prisons unconstitutional.   A raft of federal cases and investigations in between reached the same conclusion.

All along, Alabama incarceration rates have remained the fifth-highest in the country, prison spending the lowest, yet our violent crime rates are higher than most every other southeastern state.  Our tough-on-crime ideology is not making us safer. And spending too little is costing us too much: in death, in degradation, and in suffering.

Any other public policy that produced such dismal outcomes would surely be scrapped. 

Instead, the state is talking about doubling down.   Its main plan to address this crisis involves continuing to incarcerate vast numbers of people on the cheap. 

Gov. Kay Ivey has proposed a public-private partnership that relies on private corporations to build and own three new megaprisons with the state leasing approximately 9,000 beds. This can be done with no tax increases, state leaders insist, which means Alabama can keep doing what it has always done.

“I am confident that the development of these facilities will be a major step forward,” Governor Ivey said in an announcement June 27 that the state has begun the procurement process for new prisons. 

This proposal is deeply troubling to those of us who have watched the for-profit prison industry overpromise to states and cities for 25 years, create nightmare prisons from Idaho to Mississippi, then rebrand itself as a real estate business. 

As recently as 2012, Federal District Judge Carleton Reeves wrote that the GEO Group-managed Walnut Grove Juvenile Detention Center in Mississippi was “a picture of such horror as should be unrealized anywhere in the civilized world” and “a cesspool of unconstitutional and inhuman acts.”  Will this company be welcomed into Alabama?

In its new role as landlord, CoreCivic, formerly Corrections Corporation of America, failed to repair rusted doors, replace damaged windows, seal cracks in the walls and floors, and patch leaks in the roof, even though maintaining the Hernando County Jail near Tampa, Florida was a requirement in its contract with the county.  The County took over and was hit with $1 million in deferred maintenance costs. Will we lease our largest prisons from them?  

Private construction of just one massive high-tech prison in Pennsylvania, SCI Phoenix, ran nearly three years behind schedule, as the Philadelphia Inquirer reported.. The state was forced to move prisoners into the facility, touted as a creative public-private partnership, before construction was complete.  Lawsuits abound. 

Already, the State of Alabama has proven its inability to house people humanely.  Adding private companies with abysmal human rights records and a mandate to turn a profit into the mix does not bode well.

It is also deeply troubling when contrasted with the smarter approach of other southern states such as Texas and North Carolina, which are closing prisons and increasing rehabilitative community options without sacrificing public safety.  In fact, since 2011, at least 22 states have closed or announced closures for 94 state prisons and juvenile facilities, resulting in the elimination of more than 48,000 state prison beds and an estimated cost savings of over $345 million, primarily in favor of rehabilative options. according to Governing Magazine. 

Alabama has not yet locked down the details of building itself out of this crisis. If we can find the political will, there is a better way.  

The court system touts drug courts, pre-trial diversion, and similar community-based options as alternatives to incarceration, as second chances.  But these programs are an inconsistent patchwork at best, and more importantly, they are not well funded. Instead, poor people are expected to pay thousands in fees — administrative fees, drug-testing fees, treatment fees, evaluation fees, and so on — and spend hours away from work for court appearances.  If they can’t keep up, they don’t graduate, then they become poor people with felony convictions, and usually no drivers licenses. 

Instead of pouring nearly a billion dollars into new prisons, Alabama could shore up these kinds of community alternatives rather than expecting indigent people to pay for them.  Along the way, the State must confront the fact that our bare bones spending on mental health and substance abuse services — 50th in the country — contributes to incarceration.  

Also, we must improve re-entry services for the formerly incarcerated. People usually leave prison with no identification, no job, and thousands of dollars in court fines and fees.  Churches and nonprofits — many ably run by formerly incarcerated people who know the obstacles and solutions better than anyone else — are struggling mightily to bridge the gaps. Again, a fraction of the new-prison money invested into re-entry services would change outcomes.     

Finally, anyone touting new prisons should closely read the Department of Justice report which unsparing makes clear that “new facilities alone will not resolve the contributing factors to the overall unconstitutional condition of ADOC prisons, such as understaffing, culture, management deficiencies, corruption, policies, training, non-existent investigations, violence, illicit drugs, and sexual abuse. And new facilities would quickly fall into a state of disrepair if prisoners are unsupervised and largely left to their own devices, as is currently the case.” 

We cannot build our way out of this problem. Instead, we need to invest in community-based solutions and mental health services that help prevent people from ending up in prisons to begin with, and support them after they come out. Smart investment in criminal justice reform would improve public safety, increase our workforce – something the Governor says is a top priority – and make Alabama more prosperous. Penny-wise, dollar foolish investments like the plan to keep on doing what we’ve always done – lock our neighbors up as cheaply as possible – will most likely result in more of the same horrific results. 

By Carla Crowder,  Alabama Appleseed Executive Director

Antonio was incarcerated at St. Clair prison a few years ago when another prisoner bit off part of his ear. They were housed in a dorm that supposedly offered rehabilitative services. For Antonio, permanent disfigurement was the outcome.  

Incarcerated people in Alabama are routinely subjected to violence and inhumane conditions in Alabama prisons, according to the U.S. Justice Department.

He did not seek revenge against the man who bit his ear. He redoubled his efforts to engage in what meager positive programming was available at ADOC. He earned his parole.  Supported by a devoted mother and sister, he is safely living back in the community.

Antonio was my client during the time I worked on prison conditions litigation at the Equal Justice Initiative before joining Appleseed. Only through the bravery of incarcerated people like him who share the truth of what’s happening inside with the outside world — often at great risk to their safety — can desperately needed change occur. 

His situation came to mind this week as I read through the U.S. Department of Justice’s 56-page report about its investigation into the Alabama Department of Corrections.  It documents horrific violence and a culture of corruption, mismanagement and indifference.  DOJ found an “enormous breadth of Eighth Amendment violations.” In plain terms, the State of Alabama is breaking the law, knows it’s breaking the law, and has been doing so for a long time.  

St. Clair Correctional Facility, where the Alabama Department of Corrections promised a federal court it would improve security, but did not make good on that promise.

Individuals who break the law hear a lot about reform, about accepting responsibility for their actions. They are told they must change their ways and not recidivate.  If they commit crimes over and over, the penalties increase under Alabama’s Habitual Felony Offender Law.

Antonio understood that.

But the government that incarcerated him in conditions that resulted in permanent harm to his body has not stopped breaking the law, despite decades of harm imposed on the Alabamians in their custody.  The United States Department of Justice Civil Rights Division and all three U.S. Attorney’s Offices in Alabama, working under a Justice Department led by former Alabama Attorney General and Senator Jeff Sessions for much of their investigation, concluded scathingly:  “ADOC has long been aware that conditions within its prisons present an objectively substantial risk to prisoners. Yet little has changed.”

The timeline stretches back to the Wallace era.  As early as 1975, a federal court stopped ADOC from accepting any new prisoners into four of its prisons until the population of each was reduced.  Again in 2002, a court order declared dangerous crowding and understaffing at Tutwiler Prison for Women to be in violation of the Eighth Amendment. In 2011, another federal court found ADOC facilities understaffed and overcrowded. In 2014, DOJ documented rampant sexual abuse by staff of women at Tutwiler. Later in 2014, EJI urged the state to investigate and address homicides at St. Clair prison and filed a lawsuit alleging unconstitutional violence and abuse there.

And now, as documented by a two-and-a-half year federal investigation, so many people die in state prison custody that the ADOC lost count and classified some homicides as natural deaths.  

“Alabama does not have a reliable system for tracking the deaths that occur within its custody,” the DOJ found.  Consider the grim irony of that fact. Our state punishes people who commit acts of violence — and many with convictions for drug use or property crime — through a prison system unable and unwilling to keep track of who dies there and how.

To people numbed to bad news by the steady flow of reports of murders, suicides, and strikes, and violence in our state prisons, this could seem like just another report about the persistent crisis plaguing the Department of Corrections. But it is not. The DOJ laid out five pages of corrective actions expected from the state with strict timelines for implementation.  The report is actually a notice to the state, as required by CRIPA (the Civil Rights of Institutionalized Persons Act), that the federal investigation found numerous constitutional violations and the ADOC has 49 days to begin addressing the problems or be sued by the federal government.

Alabama’s elected leaders have attempted to address this crisis before.  Multiple task forces have tweaked sentencing laws and parole policies, and “the violence has only increased,” the DOJ found.  Meanwhile, Alabama has maintained the country’s fifth-highest incarceration rate for decades. That also means we have the fifth highest incarceration rate in the world, if every U.S. state were a country, according to the Prison Policy Initiative.

Alabama cannot build its way out of this problem, nor can it buy its way out. Our elected leaders must finally acknowledge that Alabama’s people are not worse and more deserving of incarceration than nearly every other population on the planet.  They must stop relying on the politics of fear, on pressure from the victims’ lobby, and on our entrenched system of policing for profit that places the acquisition of funding for law enforcement above evidence-based public safety.

Antonio, even with his damaged body, turned his life around and changed his ways.  Now it’s time for the government that endangered him for a decade to do the same.