by Leah Nelson, researcher and Dana Sweeney, organizer

Payday industry supporters have often claimed that “neither the general public nor the so called ‘poor’ [are] clamoring” for payday lending reform in Alabama.

Actual borrowers might beg to differ.

Between October 2016 and September 2017, the State Banking Department reported that nearly 215,000 Alabamians took out 1.8 million payday loans – more than eight loans per customer, on average. Each of those loans represents an untold story of struggle where borrowers were forced to weigh the urgent need for cash against the prospect of repaying predatory lenders who charge interest rates as high as 456 percent APR and can demand full repayment within as few as 10 days.

Publicly available comments made by Alabama borrowers to the Consumer Financial Protection Bureau (CFPB) show that for some, payday loans turn out to be a far greater financial burden than what drove them to payday lenders in the first place. These self-reported stories offer a small but representative window into the horrors of predatory lending for many Alabamians.

Writing in March 2015, an individual who borrowed $300 from a payday lender said they were receiving harassing phone calls every day from a lender who was automatically deducting money from their bank account, leading to hundreds of dollars in overdraft fees and forcing them to close their account. “I paid out a lot of money to the Bank for these transactions, money they could have had if they would not have kept trying to debit my account. I am so tired of this and I don’t know nothing else to do except not answer the phone,” the borrower wrote.

In May 2016, a borrower wrote that their payday lender was threatening to track them down at work. “They call me all day every day and if I fail to answer them they will call my sister, aunt, mom and harass them too.”

“I ‘m having to pay over $1000.00 for a $400.00 loan that I was told was paid for and that my balance was $0.00,” a borrower who had paid off their loan in full, only to have their bank account garnished in connection with unpaid fees, wrote in February 2017. “This is absolutely insane. How is this not illegal?”

“I was making payments until I lost my job and I contacted agency to see if I could postpone my payments until I began working again they refused my attempt and I haven’t heard from them since until today I received an email threatening to arrest me,” wrote an individual in May 2017.

“Been paying this company 2 payments every 2 weeks. They was only surposed to get 1 payment a month but taking out 2 every 2 weeks,” wrote another in May 2017. “I can’t pay my regarler bills because of this.”

“Though I do work full time I am struggling to pay off debt,” a single mother who was working with a debt consolidation program to pay off her various creditors, wrote in July 2017. The payday lender, she wrote, “has called my phone, my job, friends and family relentlessly!!   They harass me on a daily basis!! I told them about me going through the debt consolidation place and they got very very nasty, saying they aren’t participating in this program, and demanding Money NOW!!”

The CFPB did what it could to follow up with lenders and help customers resolve, or at least gain clarity, about what was happening to them. A handful of cases were “closed with monetary relief.” But the majority were “closed with explanation” – that is, the only relief the borrower received was an understanding of why the lender was allowed to do what it was doing.

For desperate people seeking help with unmanageable debt, that’s no relief at all.

In Alabama, borrowers continue to find themselves crushed by rapidly ballooning debt traps and loans continue to be issued with triple-digit APRs. Many other states have passed successful reforms, including our Southern, business-minded neighbors in Georgia, Arkansas, and North Carolina, which eliminated payday lenders entirely without significantly impacting borrowers’ access to cash. But our legislature failed again this year by refusing to pass the simple 30 Days to Pay bill, even though the status quo harms thousands of Alabamians and other states have demonstrated that responsible reform is possible. That’s why predatory lending reform is supported by a diverse coalition including Alabama Appleseed, the State Baptist Convention, the United Methodists, the Episcopal Diocese of Alabama, the Huntsville Chamber of Commerce, the Southern Poverty Law Center, and the Birmingham Business Alliance. Here in Alabama, that’s about as broad-based as it gets.

And we need our state leaders to listen now more than ever. At the national level, new leadership at the CFPB has steered the agency away from its mission of protecting consumers from abuse by large banks and corporations. Recent months have seen the CFPB refusing to enforce the federal judge-ordered punishment of a payday lender caught stealing millions of dollars from its customers, musing about eliminating basic guardrails meant to keep payday lenders from scamming borrowers, and even proposing that public comments made to the CFPB by consumers—like those featured in this article—be hidden from the public. Alabama lawmakers can no longer wait or depend on the CFPB to fix an issue that was created by the Alabama State Legislature. Lawmakers’ earliest opportunity to address this issue will be the upcoming 2019 Legislative Session, and after failing Alabamians again and again, they should finally take it.

Until then, though, Alabama borrowers will have to wait yet another year for relief – and payday lenders will get another year to line their pockets by fleecing our communities. Let’s make sure that they won’t be made to wait again.

by Leah Nelson, Researcher 

In 1972’s Furman v. Georgia, the U.S. Supreme Court ruled that death penalty schemes that led to arbitrary results – for instance, those that allowed similar offenses committed by similar individuals to lead to different sentences – were unconstitutional. The result was a de facto moratorium on the death penalty nationwide, while states worked to make their laws more just.

Four years later, in Gregg v. Georgia, the high court decided that the death penalty itself can be constitutional, provided that it was meted out only in clear, objective, and limited sets of circumstances, reviewable on appeal, and where the sentencer was permitted to take the defendant’s character and history into account when deciding whether to impose a sentence of death.  

Fast forward to today in Alabama.

There are 19 capital offenses under Alabama law –  each a distinct type of murder for which the death penalty can be sought. There are also 10 aggravating circumstances, which can be offered to a jury for consideration as it decides whether or not to impose a death sentence after finding a defendant guilty. Between them, the two sections make it possible for almost any homicide, committed under nearly any circumstance, to result in a death sentence.

This past legislative session, lawmakers considered a bill that would have created an additional aggravating circumstance. HB 161, sponsored by Rep. Chris Sells (R-Greenville), would have added to both sections, making the murder of a first responder operating in an official capacity a capital offense and adding three victim types – law enforcement officers, first responders, and children under 14 – to the list of aggravating circumstances.

The bill passed in the House, but failed to pass the Senate. It did not become law, nor should it. HB 161 would have expanded Alabama’s broken death penalty system. This fact is no less true today than it was in 2006, when eight distinguished Alabama attorneys comprising the American Bar Association’s Alabama Death Penalty Assessment Team concluded, bluntly, that “the State cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed.”

In its report, the ABA Assessment Team identified seven problem areas in desperate need of reform, including:

  • Inadequate indigent defense services at trial and on direct appeal;
  • Lack of defense counsel for state post-conviction proceedings;
  • Lack of a statute protecting people with intellectual disabilities from execution;
  • Lack of a post-conviction DNA testing statute
  • Inadequate proportionality review (i.e., inadequate review of disparities in imposition of the death penalty across socio-economic, geographic, racial, or other lines);
  • Lack of effective limitations on the “heinous, atrocious, or cruel” aggravating circumstance (i.e., a failure to require prosecutors to prove that a particular capital murder was grimmer than most before invoking this aggravator); and
  • Capital juror confusion (specifically, research at the time showed that a majority of Alabama capital jurors interviewed misunderstood basic principles about their role and responsibility with regard to deciding whether a death sentence was called for, suggesting that jurors are recommending death sentences based on serious legal errors).

To date, the state has implemented only one of the assessment team’s primary recommendations – the elimination of an Alabama law that allowed judges to override jury recommendations of life without parole in favor of death. The rest have languished, while the state’s machinery of death chugs grimly along.

Since the report’s release in June 2006, the state has executed 29 people. Five of them were killed in the last year alone.

The ABA Assessment Team in 2006 called on Alabama to impose a moratorium on executions. As they stated:

“Regardless of one’s feelings about the morality of the death penalty, we all understand that, as a society, we must do all we can to ensure a fair and accurate system for every person who faces the death penalty. When a life is at stake, we cannot tolerate error or injustice. The Alabama Death Penalty Assessment Team found a number of problems in the state’s death penalty system that undermines its fairness and accuracy. Highlighted below are proposed areas for reform that would help to improve the system. Until these reforms are implemented, a temporary moratorium on executions should be imposed.”

The virtues of the death penalty may be debatable, but the merits of fairness and accuracy are not.

The state of Alabama should not carry out one more execution, nor tinker further with its death penalty laws, until and unless it addresses the gaps that led the ABA team, over a decade ago, to condemn the system’s failures.

by Leah Nelson, Alabama Appleseed Researcher

It was a “harebrained theory” from the start. That’s what a former Houston County assistant district attorney with knowledge of the case against James Vibbert says, anyway.

“[B]ut we didn’t dismiss cases in the DA’s office when Doug Valeska was there. You weren’t allowed to, unless he wanted to dismiss the case,” the former insider said. “‘Try it and lose,’ was pretty much what we were told.”

So that’s what they did. And Vibbert, a small business owner who faced criminal charges and the attempted civil forfeiture of more than $25,000 that he needed to keep his business running, paid the price.

James “Jamey” Vibbert is the unlikely protagonist of an object lesson about the way civil asset forfeiture can be abused by ambitious law enforcement agents and unscrupulous prosecutors. Past president of the Dothan/Houston County Rotary Club, former member of the board of directors and three-time “Ambassador of the Year” for the Dothan Area Chamber of Commerce, a man whose Facebook “likes” include “Conservatives Against a Liberal Agenda,” he personifies what many in Alabama’s fiercely conservative Wiregrass region might consider an ideal. He’s a small business owner and entrepreneur who got his start in healthcare systems and payroll solutions before turning to the sale of high-end imported cars; a Huntsville, Ala. native and Crimson Tide fan with two adult children and a young daughter he dotes on.

Sitting in the back office of Bavarian Imports, the dealership he opened after fallout from his disastrous encounter with Houston County’s civil asset forfeiture machine forced him to close his previous shop, Vibbert struggles to find words to describe his experience.  

“It just tarnished. It just knocked it off,” he says. “If it had even been a little cloudy, something that I may have done, that I crossed the line a little bit, maybe I deserved it. No. I didn’t cross the line a single bit. I didn’t do the first thing that was wrong, not even close. That’s what’s so hard about this, it was nothing.”

But it was also everything.

It all started in 2015 when a young man with cash to spare started buying cars from Vibbert’s dealership, CSI Auto Sales. The buyer didn’t have a license, but car dealers often sell cars to individuals who cannot legally drive them – for instance, disabled persons who buy cars that will be driven by others, or elderly individuals who have let their licenses lapse and are buying cars for children or grandchildren.

The first time he bought a car from Vibbert, the buyer said he wanted the title in the name of a person he said was his girlfriend’s mother. Vibbert gave him the paperwork. He also advised the buyer to find a trustworthy lienholder to maintain financial control of any vehicle he bought but didn’t control the title to – that way, if he and his girlfriend got in a fight, the lienholder could stop her from making off with the car. The buyer thanked Vibbert, and did just that.

Not long after that, the buyer was arrested for an alleged drug crime. Alleging they had been purchased with drug money, Lt. Demetrius Bogan of the Alabama Law Enforcement Agency apparently looked into having the cars forfeited and learned that the titles were not in the buyer’s name and the cars had third-party lienholders.

In 2004, Houston County District Attorney Doug Valeska sent a memo to all law enforcement personnel under his jurisdiction, telling them that his office expected 20 percent of the proceeds of any item seized via civil asset forfeiture, a legal process by which property believed to be connected to a crime can be “prosecuted” and become the property of the state. The memo, which Alabama Appleseed obtained on Jan. 11 through an open records request asking for all documentation about the Houston and Henry County District Attorney’s civil asset forfeiture policy, states that law enforcement agencies are responsible for paying off any liens on forfeited vehicles, and warning them to look into liens before seeking forfeiture.

When Bogan checked the title on the two vehicles he seized from Vibbert’s buyer, he discovered that it would cost his employer as much as the cars were worth – about $25,000 – to have them forfeited. Rather than let things go, he began to investigate  Vibbert. The prosecutor struggled to charge him: as he  told the Dothan Eagle, he “kind of had to do some serious research in the statutes to figure out exactly how it violated the law. … It’s the first time that I know of we’ve ever charged anybody under these provisions.”

The prosecutor likened Vibbert’s alleged crime to money laundering. “The vehicles were being bought with drug money, and [Vibbert] knew they were being bought with drug money,” he told the Eagle. “He’s falsifying titles to protect a drug dealer’s vehicles from government seizure.”

But Vibbert didn’t know. In his years as a car salesman, he’s had customers pay him in cash and title the car to third parties for any number of legitimate reasons – as an example, he cites a Mobile-based hairdresser who used the cash he received in tips to buy a flashy car for his mother. He also makes a practice of advising young people buying cars for their significant others to add lienholders, to protect the buyer from losing their property due to a bad breakup. All kinds of people buy high-end used automobiles, and Vibbert has learned not to judge or make assumptions without good cause. He just warns his buyers to be careful.

Unfortunately, the system that prosecuted him hadn’t learned that lesson – least of all former Houston County District Attorney Doug Valeska, who earned a bar complaint from a former Alabama Supreme Court justice and a national reputation for abusing his power before retiring in 2016.

According to a former prosecutor who worked in his office, Valeska refused to allow dismissal of Vibbert’s case even when it became clear that the charges were baseless, and the forfeiture proceedings unwinnable.

Vibbert’s first clue that something was amiss came when he noticed that about $25,000 was missing from his bank account. He called his bank, which said it would look into what had happened and get back to him. Two days later, Bogan showed up at his dealership and demanded to talk with him.

Vibbert was at a car show in Tallahassee when his wife Kayla called and put Bogan on the phone. Vibbert recalls the conversation vividly.

“He said ‘I’ve got some advice for you,’ he says. ‘You better leave right there, and you better come back to Alabama, and you better hope that you don’t get pulled over by the police there, ‘cause I’m gonna let you set in jail for 10 days till I come and get you.’ And he says, ‘Oh by the way,’ he says, ‘I’m the one that took that money out of your account.”  

Bogan had gained control of the money under Alabama’s civil asset forfeiture laws, which allow individual police officers to seize cash and other items that they believe are connected to criminal activity.

Most commonly, cash is seized when it’s found in a vehicle or home together with drugs or other alleged evidence of criminal activity. Forfeiture is then sought in civil court, where Alabama law requires prosecutors to prove to a judge’s “reasonable satisfaction” – a nebulous standard that is approximately equivalent to “more likely than not” – that it was the fruits of, or connected to, a crime.

Unusually, Vibbert’s was taken from his bank account, because Bogan and the District Attorney’s office believed it might be connected to drug dealing in some fashion.

Ultimately, a judge disagreed – but not before Vibbert lost his business, and, in many ways, his sense of himself as a pillar of his small, conservative, close-knit Wiregrass community.

There was a flaw in the first indictment against Vibbert, so the judge threw it out the day the trial was set to begin. The District Attorney’s office charged Vibbert again, arrested him again, and insisted on proceeding to trial.

In the meantime, Vibbert hired attorneys and set about attempting to get his money back. It couldn’t happen fast enough. He had intended to use the $25,000 the state seized to purchase new inventory, and now that couldn’t happen. Lenders suspended lines of credit. People stopped buying from him; some even backed out of partially completed transactions after the Dothan Eagle featured a story describing the charges against him. Vibbert’s payroll solutions and workers compensation company, which predated his car dealership, lost about 50 percent of its contracts because no one wanted to trust their finances to an alleged money launderer. Overall, he estimates the ordeal set him back about $300,000 in lost business and expenses.

The criminal trial was over almost before it started. Vibbert’s lawyers took the unusual step of requesting a bench trial, meaning the judge decided the case instead of a jury. The prosecutor’s case fell apart: at one point, the judge interrupted to observe that he himself had recently purchased a car, titled it to his son, and had the title sent to his own home address rather than his son’s – facts similar to those on which the charges against Vibbert were based. “Is that falsifying a title?” the judge asked the prosecutor.

“Possibly,” came the reply. “I would need a little more information.”

In the end, the judge ruled in Vibbert’s favor. In addition to finding him not guilty of all the charges against him, the judge made a clear statement about what he thought of the forfeiture proceedings.

“The Court is not willing to extend forfeiture laws to businesses who are not involved in the drug trade. Otherwise, you are going to draw in car dealers, rental car companies, etc. There would have to be more, a pattern of [sic] practice for the car dealer bending the law to assist drug dealers. This is but one example. But one example. And I am not sure that Mr. Vibbert fits that,” he said.

He warned Vibbert not to sell that particular buyer any more cars, and sent him home.

Off the record, the prosecutor apologized to Vibbert and expressed relief that the proceeding was over. That was January 2016.

Vibbert started to put his life back together. Based on the judge’s words, he was sure his money would be returned to him any day, but months passed, and he received no check. On March 25, 2016, his lawyer sent a letter to Valeska. He observed that other individuals associated with the case – including the buyer, who in addition to allegedly participating in a title fraud scheme was also allegedly in possession of a large quantity of methamphetamine when Bogan stopped him – were not charged with crimes, while “the State and Agent Bogan chose to pursue the rare and speculative charges against Vibbert.” He noted that Vibbert’s bond – a total of $50,000 over the course of two arrests – was shockingly high given the charges and the fact that Vibbert had no prior criminal history.

“It is my opinion that the motivation for pursuing the charges and the civil forfeiture against Vibbert was unfortunately a desire to take his money,” he wrote. “I believe it is now clear that the State has a duty to cease this proceeding.”

Valeska disagreed, and took several more months and a judge’s order to force the state to return Vibbert’s money. He lost about a third of it to attorney fees, and used the rest to reinvest in his foundering businesses.

Things are getting better, but they’re still bad. “It’s very difficult for me today to call on companies in this area and get them to do business with me,” Vibbert says. “My competitors, the first thing they’re going to say is, ‘Let me pull up this thing on the internet here. He launders money.’”

“The internet,” he says, “will never go away.”

Though he’s back on his feet, Vibbert’s life was permanently changed by the experience. An extroverted, highly social man his whole life, he’s withdrawn to a back office to avoid problems with customers who still associate his face with alleged criminal activity. He and his family rarely attend church anymore, and he’s withdrawn from many neighborhood and social activities. He would like to have the record of his arrest expunged, but he dreads going to the local jail to get fingerprinted (a required part of the expungement process), fearful that someone will see him there and assume he’s been arrested again.

“It’s still a nightmare. It hasn’t ended. You would think that it would end, but the problem you have is, you’ve got people who just don’t know the truth, and they assume, ‘ok, it’s this.’ And I worked so hard to build what I had,” Vibbert says. “And the thing is, how they can do that, and get away with it? And they drug me through it. When they finally found out the truth, they didn’t stop. They didn’t stop! It was just like, ‘We don’t care.’”

 

On Thursday, October 19, the state of Alabama executed Torrey Twayne McNabb by lethal injection, using a secret execution protocol that has repeatedly resulted in botched procedures.

The execution did not go well. After reassuring his family that he was not afraid, Mr. McNabb was injected with midazolam, a valium-like sedative, and executioners twice conducted a “consciousness check,” brushing Mr. McNabb’s eyelid, calling his name, and pinching his shoulder. Mr. McNabb responded in a purposeful-looking way to both checks, moving his hand, raising his arm, and grimacing, but the execution proceeded anyway.

Afterwards, Commissioner Jefferson S. Dunn told reporters executioners had followed the protocol “as it is written” – an unverifiable claim, since Alabama has refused to release details of its protocol, despite multiple public records requests and current litigation by a local minister. Dunn said he was “confident” that McNabb was “more than unconscious” when he moved, characterizing his movements as “involuntary” and saying they are common occurrences at executions.

Indeed they are. Ronald Bert Smith, Jr. heaved and coughed for 13 minutes of his December 2016 execution. And purposeful-looking movement was observed during the January 2016 execution of Christopher Brooks, who reportedly opened one eye, and the June 2017 execution of Robert Melson, whose hands and arms reportedly quivered and shook against his restraints.

These facts alone should be enough to persuade Gov. Kay Ivey and legislators that Alabama’s death penalty process is broken. But they are not the only reasons. In 2015, judges ordered the release of three men – Anthony Ray Hinton, Montez Spradley, and William Ziegler – from Alabama’s death row due to evidence of innocence or prosecutorial misconduct, errors, and abuses egregious enough to warrant reversal. Including Hinton, eight Alabama death row prisoners have been exonerated in the modern death penalty era. That many of them spent decades behind bars should give pause to supporters of attempts, including 2017’s so-called “Fair Justice Act,” to shorten the time between sentencing and execution.

As far back as 2006, the American Bar Association’s Alabama Death Penalty Assessment Team, consisting of eight distinguished Alabama attorneys, made a variety of specific recommendations for reform. Recognizing that Alabama’s death penalty process ensured neither accuracy nor fairness, these Alabama experts called for a temporary moratorium on executions while the state worked to address them. So far, only one of these, calling for an end to the practice of allowing elected judges to override a jury’s recommendation of life without parole in favor of a death sentence, has been enacted.

Before Alabama even considers moving forward with a new execution, it must implement the Assessment Team’s recommendations and empanel a new commission to review emerging issues, including the demonstrably problematic execution protocol. In devising a new commission, Alabama lawmakers could look to the example of Oklahoma, which implemented a moratorium and empaneled a commission to review its capital punishment system in 2016, after a disastrously botched execution, and revelations of shocking ineptitude and deception by top Department of Corrections officials brought international condemnation and undermined public confidence. Following a year-long investigation, the commission unanimously recommended an extension on the moratorium “until significant reforms are accomplished.”

Alabama’s system suffers from many of the same flaws as Oklahoma’s, including an execution protocol that has resulted in several botched executions; inadequate safeguards against the execution of the innocent; and an over-burdened and under-resourced defense bar.

While Alabamians may disagree on whether we should have a death penalty, we should all agree that if Alabama has a death penalty then the process should be fair and accurate. Currently it fails this basic test.  It is unconscionable that Alabama continues to execute individuals without addressing the fundamental problems with our death penalty process.

My name is Leah Nelson, and I am delighted to join Appleseed. As Researcher, I will be collecting stories, data, and information to turn into white papers, reports, and advocacy material to support Appleseed’s Access to Justice and Fair Schools, Safe Communities campaigns.

I moved to Alabama in 2010 for a two-year fellowship at the Southern Poverty Law Center, where I covered white supremacy, nativism, the Patriot movement, and other forms of extremism for SPLC’s Intelligence Project. As time passed, I felt compelled to stay. I married, started a family, bought a house, picked a college football team to root for, and moved on to a 5-year stint in the Capital Habeas Unit of the Middle District of Alabama Federal Defenders, supporting the appeals of death-sentenced individuals seeking new trials.

In that role, I witnessed the devastating consequences of Alabama’s school-to-prison pipeline, inadequate safety net, and under-resourced indigent defense system. I had clients whose first contact with the justice system came when they were prosecuted in court-like settings for misbehaving in school, and others whose distrust of the criminal justice system – distrust born of experience – ran so deep that they struggled to convey useful information that might have saved them from death row. In the year preceding my departure from the Federal Defenders, two of my clients were executed without ever having their cases reviewed on the merits because Alabama declined to provide them with attorneys in state post-conviction proceedings.

I believe that our democracy functions best when accurate, well-presented information about the world we live in is readily available to lawmakers, the courts, and people of all walks of life. As Alabama Appleseed’s Researcher, I hope to create written materials that will inform policy-making to prevent the kind of injustices my former clients, and too many other Alabamians, suffer.