Enhance Public Safety, Strengthen our Economy, & Give People a Second Chance to Make an Honest Living

SB 198 & HB 257 ensure that the State of Alabama, its agencies, and its political subdivisions cannot ask a prospective employee if that person has been arrested for or convicted of any crime, with certain exceptions. A state employer may ask a prospective employee about his or her criminal background, but only after a conditional offer of employment is made. A state employer may withdraw the offer of employment after learning of the prospective employee’s criminal conviction background if the prospective employee has a conviction that is directly related to the job. SB198 also establishes clear criteria for state agencies to consider during the screening process when evaluating a person’s prior criminal history.

Improves the public sector’s ability to recruit the best and brightest. Many of America’s largest companies, including Wal-Mart, Target, Home Depot, Starbucks, Koch Industries,and Facebook, recognize that banning the box is good for business. As Koch Industries General Counsel Mark Holden wrote last year, “For employers seeking the best talent, it makes sense for a company to consider all factors, including any prior criminal record, in the context of an applicant’s other life experiences. We are in a global competition for the best talent period; not the best talent with or without a record.” Our state and local government employers should view their hiring practices in the same light.

Strengthens Alabama’s economy. As the National Employment Law Project notes, when an individual with a criminal record has a job, her or she will contribute more to the tax base, purchase more goods, and is less likely to commit a new crime, thus reducing the amount of money that state and local governments must spend on their criminal justice systems. It is estimated that our nation’s economy loses $78 to $87 billion each year because of lost output caused by criminal record-related barriers. To strengthen our economy, Alabama lawmakers should support this bill.

Helps make our communities safer. Alabama has approximately 21,000 people in its prisons and another 11,000 in its jails. The vast majority of those individuals will be released and return to their communities. To reduce the recidivism rate, the Department of Justice has identified three key elements to successful re-entry into our communities. One of these key elements is helping these individuals find and keep a job. This legislation is a first step toward realizing a key element to reducing recidivism and making our communities safer.

Better ensures a second chance for Alabamians who have already paid their debt to society. Under current law, an otherwise fully qualified applicant can be denied employment long after that applicant has completed his or her sentence. This practice places counterproductive hurdles in front of individuals seeking to rebuild their lives and provide for their families. Denying a person’s application without considering his or her qualifications or rehabilitation prevents people who’ve completed their sentence from getting a fair chance at a fresh start.

Reduces disproportionate impact on people of color.  Because African Americans are disproportionately caught up in our criminal justice system, they are disproportionately affected when seeking employment. For example, while African Americans and whites use marijuana at roughly equal rates, in 2016 African Americans were over 4.5 times more likely to be arrested for marijuana possession in Alabama.  Thus, those individuals will be disproportionately impacted when filling out a job application that includes a criminal history box. This bill offers an opportunity to begin to address the long-term consequences of a criminal justice system that disproportionately affects African Americans.

Protects Alabama from having to hire an individual whose criminal conviction is directly related to the job. Under this legislation a state employer would be permitted to withdraw the offer of employment after learning of the prospective employee’s criminal conviction background if the prospective employee has a conviction that “is directly related to the position of employment sought.” For example, this provision protects a state employer from being forced to hire a convicted embezzler to keep its books.

Helps protect state employers from claims of discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. The U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance document for entities covered by Title VII, including state and local governments, to help eliminate unlawful discrimination in the employment hiring process. As outlined in the guidance document, an employer must show that the selection criteria use or selection procedures are “job related and consistent with business necessity.” Specifically related to an applicant’s criminal record, the guidance says that the individualized screening process should consider “at least the nature of the crime, the time elapsed, and the nature of the job” or otherwise comply with the EEOC Uniform Guidelines on Employee Selection Procedures. SB 198 & HB 257 establishes clear criteria for state agencies to consider during the screening process when evaluating a person’s prior criminal record, which will better protect state agencies from claims of discrimination under Title VII.

SB198 & HB 257 are win-wins. They better ensures that Alabamians are judged on their merit, not their mistakes and protects state employers.

by Dana Sweeney, Organizer

For years, there has been widespread, bipartisan agreement that we must reel in predatory payday lenders in Alabama. According to data collected by the State Banking Department, about 215,000 Alabamians took out 1.8 million payday loans between October 2016 and September 2017, averaging more than eight loans per customer. Even though payday borrowers must be able to show that they have a source of income before being issued a loan, 87% of payday borrowers in Alabama still had to take out multiple, small-dollar loans during the year to get by — almost always to meet necessary living expenses like rent, utilities, and grocery bills, or to account for emergencies like unexpected medical costs or car repairs.

As too many Alabamians know, those small-dollar loans often balloon into large-dollar debts due to high interest rates. Alabama’s payday borrowers pay over $100 million every year on average in loan fees charged to initiate loans and to “roll them over” when full repayment is not possible. There is wide-ranging public agreement that the status quo for payday lending must change, especially when that status quo means that predatory lenders issue loans with interest rates as high as 456% APR and can demand full loan repayment within as few as 10 days.  

This year, Alabama Appleseed has been working with a broad coalition of churches, community foundations, local organizations, credit unions, direct social service providers, and individuals that spans the state and the political spectrum. We are supporting the 30 Days to Pay Bill (SB 138), a simple, modest reform that would set payday loans on the same 30 day repayment schedule as all other household bills. It would start to curb runaway interest rates and prevent many of the debt traps that currently ensnare thousands upon thousands of Alabamians every year. It enjoys bipartisan support in the legislature, and it is an opportunity for the legislature to finally take a step forward on predatory lending reform after years of failing to deliver. All we need now is the chance for senators to vote on it.

The bill has been slowly inching its way through the Senate, but it has not yet been put on the calendar to be debated and voted on. If this bill doesn’t start picking up steam soon, we may run out of time — again — to protect Alabama’s payday borrowers. Alabama deserves a vote. Alabama’s borrowers deserve a vote. We urge you to contact your senator and ask them to do everything in their power to propel this bill forward.

SAMPLE CALL SCRIPT

“Hello, my name is _________________, and I am one of Senator ____________’s constituents from ______[town]_______. I’m calling today because I would like to urge Senator ___________ to do everything in [his/her/their] power to ensure that SB 138, the 30 Days to Pay Bill, passes through the Senate. So many of us have been patient and persistent all session while waiting for this bill to advance through the Senate, just as we have been waiting for years for the legislature to deliver on predatory lending reform. We have waited long enough, and so have Alabama’s borrowers, who continue to suffer because of the legislature’s failure to address this issue. Please let Senator ________ know that SB 138 is a top priority for me as a voter, and that I want to see [him/her/them] doing everything in [his/her/their] power to support and advance this bill. It is bipartisan. It is simple. It is overwhelmingly supported by the public. We deserve a vote, and Alabama’s borrowers deserve relief. Thank you.”

SAMPLE EMAIL SCRIPT

“Dear Senator ____________,

I am writing you to urge you to do everything in your power to pass SB 138, the 30 Days to Pay Bill, through the Senate. As someone who lives in _____[town]______, I know how damaging predatory lending practices are to our community, and as a voter, one of my top priorities is seeing SB 138 passed. So many of us have been writing and calling during this legislative session, and there has been bipartisan agreement that we need predatory lending reform for years. It’s past time that something is done, and it’s past time for the Senate to vote on SB 138. Please work with your colleagues to pass this bill as soon as possible, as we are running out of time — again — to pass reform that protects Alabama’s borrowers from predatory lenders. This bill is simple and overwhelmingly supported by the public. We deserve a vote, and Alabama’s borrowers deserve relief. I will be looking for your leadership on this. Thank you.

Sincerely,

_______________”

Make your voice heard! It can make the difference. 

Today the Alabama Senate Judiciary Committee voted to advance SB 213 (Senator Orr), which would end civil asset forfeiture in Alabama.

“Civil asset forfeiture allows the government to take and keep your cash, your car, or your house – even if you are never charged with a crime,” said Frank Knaack, executive director of Alabama Appleseed. “It turns the fundamental American principle of innocent until proven guilty on its head and has no place in Alabama.”

Under Alabama law, law enforcement keeps up to 100% of the proceeds from forfeited property. Under the federal program, Alabama law enforcement can keep up to 80% of the proceeds. Between state and federal programs, Alabama law enforcement received over $5 million in 2015 alone, and none of that required an indictment, much less a criminal conviction.

“Originally sold to the public as a tool for taking the ill-gotten gains of drug kingpins, civil asset forfeiture has strayed far from its alleged purpose,” Knaack said. “In 2015 alone, local and state government entities kept at least $670,000 from property owners who were never even charged with a crime.”

Under current law, the government is not required to report what they have taken to a centralized database. In order for Alabama Appleseed and the Southern Poverty Law Center to gather data for the report, Forfeiting Your Rights, the groups had to write a computer program, purchase thousands of dollars worth of court records, and spend hundreds of hours reviewing them one by one. In addition, of the 138 agencies that were sent open records requests, only one responded with information about expenditures from its forfeiture account. Most agencies didn’t respond at all.

“Our democracy cannot exist without a transparent and accountable government,” said Knaack. “Yet, to gather just a snippet of the abuses happening under the program we had to spend thousands of dollars for court records and spend hundreds of hours analyzing those records. That is the opposite of a transparent and accountable government.”

SB 213 would:

  • Require that the forfeiture process occur within the criminal case.

  • Protect innocent property owners.

  • Bring transparency to the forfeiture process.

  • Restrict the ability to abuse the federal forfeiture programs.

“This legislation is a win-win,” Knaack said. “Criminal forfeiture leaves in place the tools law enforcement needs to hold those who commit crimes accountable and places the burden back where it belongs – on the state.”

SB 213 now moves to the Senate floor.

The Alabama Appleseed and the Southern Poverty Law Center report on civil asset forfeiture can be found here: www.alabamaappleseed.org/report-forfeiting-your-rights/.

 

by Frank Knaack, Executive Director

The staggering racial disparities in Alabama’s criminal justice system mean people of color are more likely to incur criminal justice debt and face counterproductive hurdles to reentry. People of color are also far more likely to encounter predatory lenders, whose loan products can legally reach 456% APR. Together, these systems help drive Alabama’s racial wealth divide.

With support from the Annie E. Casey Foundation, Alabama Appleseed has launched a collaborative project with Greater Birmingham Ministries, Legal Services Alabama, and the University of Alabama at Birmingham’s Treatment Alternatives for Safer Communities (TASC) to:

  • Document how court-imposed debt and collateral consequences push individuals to seek high interest loans from payday and title loan lenders.
  • Reduce the burden of these debts by educating Alabamians about alternative loan products that would minimize debt burdens.
  • Develop and execute a long-range plan to remedy these three drivers of Alabama’s racial wealth divide.

How will we do this?

Focusing on people of color in Birmingham, Dothan, Huntsville, Mobile, Montgomery, Tuscaloosa, Lowndes County, Bessemer, and Tarrant, we will:

  • Survey Alabamians impacted by court-imposed debt and/or collateral consequences to understand their role in pushing people to predatory lenders.
  • Seek insight from individuals who know this system, including social workers, law enforcement, indigent defense and civil legal aid attorneys, bank and credit union workers, predatory lenders, academics, social service providers, state and local government workers, and faith and community leaders.
  • Partner with credit unions and other non-predatory loan providers to host public educational forums about reasonable alternative loan products.
  • Develop a broad, ideologically diverse coalition of advocates to address these drivers of Alabama’s racial wealth divide.

Here’s what we know so far:

Court fees are no longer just about funding the operations of the judiciary – they have become funding stream for basic government services. Of the over $165 million in fees collected by Alabama’s courts in 2011, more than 40 percent went to supplement government budgets outside of the judiciary, including county general funds, employee pay raises, and museums. And, fees collected by Alabama’s criminal courts made up over 66% of the total collected. These fees further ensnare low-income people of color in a hard-to-escape cycles of debt.

Alabama continues to erect counterproductive barriers in front of former offenders returning to their communities, such as arbitrary limitations on employment and housing – two key factors to reducing recidivism. According to The Council of State Governments, Alabama maintains 842 collateral consequences to a criminal conviction.

In addition to those statutorily created hurdles, because of the criminal history checkbox on many employers’ initial employment applications, individuals with criminal records often have their job application tossed out before they ever have an opportunity to present their qualifications or rehabilitation. 

Alabama has more predatory lenders than McDonalds restaurants. In 2015, 246,824 unique Alabama borrowers took out more than two million payday loans. The average predatory loan rate is 300% APR and can legally reach 456% APR. Despite being sold to lawmakers as a way for individuals to obtain emergency credit, the average borrower took out eight loans in 2015. In reality, these predatory loan products are used to pay for basic needs and, as a 2014 survey conducted by TASC found, to cover court costs, fines, and fees.  

By reducing criminal fees, removing unnecessary hurdles to reentry, and reining in predatory lenders, this project will help remove three drivers of household debt in Alabama’s communities of color.

by Frank Knaack, Executive Director

Under both Alabama and federal law, the government can take and keep your cash, your car, or your house – even if you are never charged with a crime. This program, known as civil asset forfeiture, turns the fundamental American principle of innocent until proven guilty on its head and has no place in Alabama.

Thanks to legislation introduced by Senator Orr (SB 213) and Representative Mooney (HB 287), this abusive practice may soon end here in Alabama.

Originally sold to the public as a tool for taking the ill-gotten gains of drug kingpins, civil asset forfeiture has strayed far from its alleged purpose. In practice, drug kingpins are rarely the target: as our report with the Southern Poverty Law Center found, in half of the cases the amount of cash forfeited was $1,372 or less. The average amount of $1,372 is often less than the typical cost of hiring an attorney to challenge the seizure in court.

That’s not the most troubling finding. In 25% of the civil forfeiture cases we reviewed, there was not a corresponding criminal charge. Think about that – one in every four civil asset forfeiture cases involved the government taking and keeping a person’s property who was never even charged with a crime. In fact, in  2015 alone, local and state government entities kept at least $670,000 from property owners who were never changed with a crime.

It took some digging to learn all of this. Under current law, the government is not required to report what they have taken to a centralized database, so in order to gather data for our report, we had to write a computer program, purchase thousands of dollars worth of court records, and spend hundreds of hours reviewing them one by one. What they did with that money remains a mystery, because of the 138 agencies that were sent open records requests, only one responded with information about expenditures from its forfeiture account. Most agencies didn’t respond at all.

How did we get into this mess? It’s all about incentives.

Under Alabama law, law enforcement keeps up to 100% of the proceeds from forfeited property.

Under the federal program, Alabama law enforcement can keep up to 80% of the proceeds. Between 2000 and 2013, Alabama law enforcement agencies kept over $75 million in property, and, as is the case with the Alabama programs, none of that required a warrant or indictment, much less a criminal conviction.

Between state and federal programs, Alabama law enforcement raked in over $5 million in 2015 alone.  

Law enforcement should not be put in a position where they appear to value funding their budget over the protection of individual rights.

Thanks to Senator Orr and Representative Mooney, we have a very simple solution. Their legislation would:

  • Require that the forfeiture process occur within the criminal case. This legislation would ensure the government proves that the individual whose property was taken was actually convicted of a crime, and that the property seized was the product of, or that it facilitated, that crime. This places the burden back where it belongs – on the state
  • Protect innocent property owners. This legislation would create a process in which property owners can promptly challenge a seizure and/or assert that they did not know or consent to the use of their property in an alleged crime.
  • Bring transparency to the forfeiture process. This legislation would require annual, centralized reporting of all seizures and forfeitures and what law enforcement agencies spend forfeiture proceeds on.
  • Restricts the ability to abuse the federal forfeiture programs. This legislation would prohibit Alabama law enforcement from receiving proceeds from federal forfeiture actions.

This legislation is a win-win. Criminal forfeiture protects innocent Alabama property owners and leaves in place the tools law enforcement needs to hold those who commit crimes accountable.

by Frank Knaack, Executive Director

Earlier today the Alabama Senate Judiciary Committee voted to enhance public safety, strengthen our economy, and give people a second chance to make an honest living.

SB 198 (Sen. Singleton), and its House counterpart, HB 257 (Rep. Givan), would prohibit a state or local government employer from asking an applicant about their criminal history until a conditional offer of employment is made. A safeguard in the bill would enable the government employer to withdraw the job offer if the applicant’s criminal conviction is directly related to the job. Further, the bill establishes clear criteria for state agencies to consider during the screening process, which would better protect the agencies from claims of discrimination under Title VII.

Why should Alabama government employers ban the box? Because it improves the public sector’s ability to recruit the best and brightest, strengthens Alabama’s economy, helps make our communities safer, better ensures a second chance for Alabamians who have already paid their debt to society, reduces the criminal justice system’s disproportionate impact on people of color, protects Alabama from having to hire an individual whose criminal conviction is directly related to the job, and helps protect state employers from claims of discrimination.

Many of America’s largest companies, including Wal-Mart, Target, Home Depot, Starbucks, Koch Industries, and Facebook, recognize that banning the box is good for business. As Koch Industries General Counsel Mark Holden wrote last year, “For employers seeking the best talent, it makes sense for a company to consider all factors, including any prior criminal record, in the context of an applicant’s other life experiences. We are in a global competition for the best talent period; not the best talent with or without a record.” Our state and local government employers should view their hiring practices in the same light.

As the National Employment Law Project notes, when an individual with a criminal record has a job, they will contribute more to the tax base, purchase more goods, and is less likely to commit a new crime, thus reducing the amount of money that state and local governments must spend on their criminal justice systems. It is estimated that our nation’s economy loses between $78 and $87 billion each year because of lost output caused by criminal record-related barriers. To strengthen our economy, Alabama lawmakers should support this bill.

In addition to being a sensible business practice, banning the box will also make our communities safer. Alabama has approximately 21,000 people in its prisons, and another 11,000 in its jails. The vast majority of those individuals will be released and return to their communities. To reduce the recidivism rate, the Department of Justice has identified three key elements to successful re-entry into our communities. One of these key elements is helping these individuals find and keep a job. This legislation is a first step toward realizing a key element to reducing recidivism and making our communities safer.

It will also make our communities more fair. Under current law, an otherwise fully qualified applicant can be denied employment long after that applicant has completed their sentence. This practice places counterproductive hurdles in front of individuals seeking to rebuild their lives and provide for their families. Denying a person’s application without considering their qualifications or rehabilitation prevents people who have completed their sentences from getting a fair chance at a fresh start.

Because African Americans are disproportionately caught up in our criminal justice system, they are disproportionately affected when seeking employment. For example, while African Americans and whites use marijuana at roughly equal rates, in 2016 African Americans were over 4.5 times more likely to be arrested for marijuana possession in Alabama. Those individuals will be disproportionately impacted when filling out a job application that includes a criminal history box. This bill offers an opportunity to begin to address the long-term consequences of a criminal justice system that disproportionately affects African Americans.

To protect government employers (and taxpayers), under this legislation a government employer would be permitted to withdraw the offer of employment after learning of the prospective employee’s criminal conviction background if the prospective employee has a conviction that “is directly related to the position of employment sought.” For example, this provision protects a state employer from being forced to hire a convicted embezzler to keep its books.

Finally, by balancing public safety concerns with a sensible approach to hiring, this legislation may help to insulate government employers from claims of discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. The U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance document for entities covered by Title VII, including state and local governments, to help eliminate unlawful discrimination in the employment hiring process. As outlined in the guidance document, an employer must show that the selection criteria use or selection procedures are “job related and consistent with business necessity.” Specifically related to an applicant’s criminal record, the guidance says that the individualized screening process should consider “at least the nature of the crime, the time elapsed, and the nature of the job” or otherwise comply with the EEOC Uniform Guidelines on Employee Selection Procedures. This legislation establishes clear criteria for government employers to consider during the screening process when evaluating a person’s prior criminal record, which will better protect government employers from claims of discrimination under Title VII.

SB 198 now heads to the Senate floor.

This legislation is a win-win. It makes us safer, strengthens our economy, better ensures that Alabamians are judged on their merit, not their mistakes, and protects government employers.

MONTGOMERY, Ala. – Courts in 14 Alabama counties awarded $2.2 million to law enforcement agencies through civil asset forfeiture actions filed in 2015 – and in a quarter of the 1,100 cases, law enforcement sought to keep property seized from people who were never even charged with a crime, according to a report released today by Alabama Appleseed Center for Law & Justice and the Southern Poverty Law Center (SPLC).

The study – Forfeiting Your Rights – paints a disturbing picture of a legal process that was once intended to strip illicit profits from drug kingpins but has since evolved into a revenue-generating scheme for law enforcement, one that is now being widely used against people accused of low-level crimes, particularly marijuana offenses, or no crime at all.

Civil asset forfeiture has been widely condemned across the ideological spectrum as an abusive practice that deprives Alabamians of their due process and property rights. The 1,100 cases examined for the report represent 70 percent of all such cases filed in Alabama in 2015.

“In Alabama, law enforcement can take and keep your cash, your car or your house – even if you are never charged with a crime,” said Frank Knaack, executive director of Alabama Appleseed. “Civil asset forfeiture turns the basic American principle of innocent until proven guilty on its head. To make matters worse, law enforcement can keep and spend up to 100 percent of the proceeds of forfeited property, no strings attached. It’s a system that incentivizes the pursuit of profit over the fair administration of justice.”

Two Republican lawmakers today filed legislation that would, among other reforms, eliminate civil forfeiture by linking future forfeiture actions to criminal proceedings.

Under state law, law enforcement agencies can seize property on the mere suspicion that it was either involved in a crime or derived from certain criminal activity. A civil court then decides whether the agencies involved can keep it. In these court proceedings, while the initial legal burden falls on the prosecutor, the low standard of proof means that the property owner carries the burden of proving the property is “innocent” of the alleged crime.

“It’s time for Alabama lawmakers to place the burden where it belongs – on the government,” said Sam Brooke, deputy legal director for the SPLC. “Civil asset forfeiture is broken beyond repair. We urge legislators to ensure that only people convicted of a crime can lose their property through criminal forfeiture and to bring transparency and accountability to the forfeiture process. These reforms would protect due process rights and hold those who commit crimes accountable.”

Though rooted in centuries-old admiralty law, civil asset forfeiture gained widespread use in the 1980s and the following decades as part of the War on Drugs. Today, however, drug kingpins are rarely the target. The report found that in half of the cases examined where cash was seized, the amount of cash was $1,372 or less. Because that amount is often less than the typical cost of hiring an attorney to challenge the forfeiture, many cases go uncontested. In fact, in 52 percent of all cases filed across Alabama in 2015, the property owner did not challenge the forfeiture in court.

The original justification for civil asset forfeiture is further undermined by the fact that in 25 percent of the cases, the individual whose property was seized was never charged with a crime.  And in 18 percent of the cases where criminal charges were filed, the charge was simple possession of marijuana and/or paraphernalia.

Further, based on both the limited data on race in this study and interviews with lawyers who represent clients in civil forfeiture cases in Alabama, there appear to be racial disparities at work. The report found that in 64 percent of the cases that involved criminal charges, the defendant was African-American, even though African Americans comprise only about 27 percent of Alabama’s population.

The legislation introduced today by Sen. Arthur Orr (R-Decatur) and Rep. Arnold Mooney (R-Birmingham) would require that the forfeiture process occur within the criminal case; ensure that innocent property owners can quickly challenge the seizure of their property; require annual, centralized reporting of all seizures and forfeitures and what government agencies spend forfeiture proceeds on; and prohibit state and local government entities from receiving proceeds from federal forfeiture actions through what is known as the “equitable sharing” program.

“No criminal should be able to profit off of their crime,” Orr said. “Our laws must also protect innocent Alabama property owners. Currently, Alabama law does not provide those basic protections. Our legislation is a win-win: It ensures that law enforcement can hold the bad guys accountable and protects the rights of innocent Alabama property owners.”

Mooney added, “Individual liberty and property rights are not adequately protected under Alabama’s civil asset forfeiture laws. Our legislation strikes an equitable balance between individual rights and public safety. It preserves the ability of law enforcement to seize and keep the fruits of crime while restoring the doctrine of innocent until proven guilty.”

The report profiles Alabamians whose lives have been upended through their experience with civil asset forfeiture.

Dothan resident and car dealership owner James Vibbert had $25,000 seized from his bank account when prosecutors claimed that another man had used drug profits to buy vehicles from him. Even after a judge found Vibbert innocent and an assistant district attorney apologized for the charges, he had to hire a lawyer to get the money back in the civil proceedings.  

“I am finally back on my feet after the several months of court proceedings and years of trying to rebuild my reputation as a trustworthy businessman,” Vibbert said. “Even after I was found innocent, I still had to hire an attorney to get my money back from the government. The system is unjust and unfair, and nearly ruined my life.”

In addition to the $2.2 million awarded to 70 government entities in 14 counties in cases initiated in 2015, the report found that law enforcement agencies in the state gained an additional $3.1 million from forfeiture cases handled by the U.S. government.

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Alabama Appleseed is a non-profit, non-partisan 501(c)(3) organization founded in 1999 whose mission is to work to achieve justice and equity for all Alabamians. Alabama Appleseed is a member of the national Appleseed Network, which includes 18 Appleseed Centers across the U.S. and in Mexico City. For more information, visit www.alabamaappleseed.org.

The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana and Mississippi, is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, see www.splcenter.org.

 

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 Friday, January 5, 2018, the Southern Center for Human Rights and Alabama Appleseed Center for Law and Justice filed Southern Center for Human Rights and Alabama Appleseed Center for Law and Justice v. Kenneth Ellis, et al., a lawsuit in state court challenging the refusal of 49 Alabama sheriffs to produce public records showing whether, and if so by how much, they have personally profited from funds allocated for feeding people in their jails.

Many sheriffs in Alabama contend that a state law authorizing them to personally “keep and retain” taxpayer dollars provided for feeding people in their jails permits them to take any amounts they do not spend on food as personal income.  “This archaic system is based on a dubious interpretation of state law that has been rejected by two different Attorneys General of Alabama, who concluded that the law merely allows sheriffs to manage the money and use it for official purposes–not to line their own pockets,” said Aaron Littman, a staff attorney at the Southern Center for Human Rights.  “It also raises grave ethical concerns, invites public corruption, and creates a perverse incentive to spend as little as possible on feeding people who are in jail.”

In an effort to learn which sheriffs across the state have taken taxpayers’ money from jail food funds, and by how much they have profited, the plaintiff organizations have sent letters requesting copies of financial records showing how much each has kept for personal use.  Although certain sheriffs have responded in compliance with Alabama’s open records law, 49 sheriffs have refused for nearly half a year to comply with their clear obligations to produce the records, claiming instead that these documents are “personal.”  Some even recently responded to a request by the plaintiff organizations for records regarding any jail food obtained for free or shortly before its expiration date with the same argument.

“The public has a right to know whether sheriffs are meeting the basic human needs of incarcerated people in their care, or are instead filling their personal coffers,” said Frank Knaack, the executive director of Alabama Appleseed.  “The Alabama Public Records Law exists so that we can hold our government accountable.  Unfortunately, a number of sheriffs have decided that our public records law does not apply to them.”

The Southern Center for Human Rights receives reports from people in Alabama jails that they are being provided inadequate or unhealthy meals, or food that is spoiled or contaminated.  In 2009, the former Morgan County sheriff was held in contempt and jailed by a federal judge after he purchased half of an 18-wheeler load of corn dogs for $500 and fed them to inmates at every meal.  During the preceding year, he had skimmed almost $100,000 from his office’s food money account.

It is presently unknown how much money sheriffs across the state have taken because most do not report it as income on state financial disclosure forms.  What is clear is that the sums can be significant.  One sheriff who did make such a report took more than $250,000 in “compensation” from “food provisions” in both 2016 and 2015.  Another sheriff was held in contempt of a federal court in 2017 after removing $160,000 from the jail food account and investing it in a used car dealership.

The lawsuit was filed in Hale County Circuit Court.  The plaintiff organizations, represented by attorneys at the Southern Center for Human Rights and Jake Watson and Rebekah Keith McKinney of Huntsville, seek an order from the court that the records they have requested are public, and that the defendant sheriffs must produce them.  They have requested that their suit be consolidated with a related case filed by Sheriff Kenneth Ellis which is currently pending before the same court and involves the same question of public access to information about how sheriffs profit from jail food funds.

The complaint is available online here.