Diverse Groups Hold Forum on Civil Asset Forfeiture

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In advance of the 2018 Alabama legislative session, panelists detail solutions to law enforcement’s unfair seizure of property.

Birmingham, AL – A diverse coalition of groups that oppose the law enforcement practice of seizing property from citizens without first obtaining a criminal conviction held an educational forum today, arguing that the Alabama State Legislature should outlaw the practice.

The organizations are making their case ahead of the 2018 Alabama legislative session, hoping to change current state law that allows the practice – also known as civil asset forfeiture. Under current law, Alabama’s law enforcement agencies are allowed to confiscate cash, vehicles and other private property on the mere suspicion that it was either involved in a crime or derived from criminal activity.

“In Alabama, law enforcement agencies can take your property even if you are never charged with a crime,” said panelist Frank Knaack, executive director of the Alabama Appleseed Center for Law & Justice. “You then have the burden to prove in court that your property is legally owned – that’s right, your property is guilty until proven innocent. To make matters worse, law enforcement are not required to report what they seize, how much they seize, and how they spend the proceeds. It’s a system that incentivizes the pursuit of profit over the fair administration of justice.”

Co-hosted by 11 diverse organizations and membership groups, panelists at the forum discussed the roots of civil asset forfeiture in the failed drug war, the problems of transparency, and the potential for abuse of the practice by law enforcement. Participants also discussed the prospect of necessary reforms in the Alabama legislative session of 2018.

The organizations want the Alabama legislature to strengthen the protection of individual property rights, eliminate the profit motive in the practice, and ensure transparency in reporting.

“Based on our analysis of the financial incentive for law enforcement to seize property, the government’s standard of proof to forfeit, and who bears the burden in innocent owner claims, Alabama earned a D-minus grade,” said panelist Lee McGrath, senior legislative counsel for the Institute of Justice. “No teacher or parent would be happy with that grade, and neither should Alabamians when their property and due process rights are at stake.”

Panelist Jordan Richardson, a senior policy analyst for the Charles Koch Institute, said policing should be about public safety, not profit. “States around the country, including Georgia, Florida and Mississippi, are moving in the right direction,” Richardson said. “Alabama should not risk getting left behind.”

Other states and the U.S. House of Representatives have recognized that civil asset forfeiture often does not align with the presumption of innocence and the respect for property rights that are bedrock principles of the United States.

“Civil asset forfeiture is unfair, undemocratic and un-American,” said Shay Farley, the Alabama Policy Counsel for the SPLC and moderator of the panel. “These laws turn the Constitutional provision that a person is innocent until proven guilty on its head. Luckily for Alabamians, the solutions are clear. The Alabama legislature can fix the problems in current practices by requiring criminal convictions before forfeiture of associated property, by placing proceeds from forfeiture into the state’s general fund instead of local law enforcement agency budgets, and by requiring public reporting of seizures and how the proceeds are spent.”

The forum, held at the Burr & Forman law firm, also referenced the stories of people who have been affected by civil asset forfeiture, including the family of Wayne Bonam. A few months after a drug task force in Covington County, Alabama, targeted Bonam in a raid, he passed away. Andalusia District Attorney Walt Merrell pressed on with civil asset forfeiture anyway, winning the case against Bonam’s home and his cash, and compounding the tragedy for his grieving family. The money from the seizure flowed into the task force, which was in the process of losing a federal grant.

In addition to Alabama Appleseed, the SPLC, the Charles Koch Institute, and the Institute of Justice, other co-sponsors of the forum included the Alabama Libertarian Party, the Alabama Policy Institute, the ACLU of Alabama, the American Constitutional Society – Alabama Chapter, the Drug Policy Alliance, Faith in Action Alabama, and the Federalist Society – Birmingham Lawyers Chapter.

Rein in Policing for Profit

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Under both Alabama and federal law, if an individual law enforcement officer believes that your property (including cash) is tied to certain criminal activities, they can seize it, even if you are never convicted of – or even charged with – a crime. You then have the burden to prove in court that your property was legally obtained. That’s right – your property is guilty until proven innocent.

Under Alabama Law, law enforcement agencies can keep 100 percent of the proceeds from forfeited property. Under the federal program, Alabama law enforcement keeps 80 percent of the forfeited property, with the remaining 20 percent going to the federal government.

Civil asset forfeiture:

Turns the presumption of innocence on its head. A cornerstone of the American justice system is the principle that one is innocent until proven guilty. Yet under Alabama law, your property is guilty until you prove its innocence. To forfeit property in Alabama, the state need only show to the court’s “reasonable satisfaction” (preponderance standard) that the property in question is related to certain criminal activities. And, under most circumstances, the property owner bears the burden of proving that the property was obtained lawfully. It’s time for Alabama lawmakers to place the burden where it belongs – on the state.

Disproportionately harms Alabama’s most vulnerable. Victims of forfeiture abuse have no right to an attorney. Thus, those who seek to have their property returned by the state not only bear the burden of proving their property was lawfully obtained, but also the financial burden of hiring an attorney. This means that those who cannot afford an attorney must defend themselves. While no Alabamian should bear the cost of having their lawfully obtained property returned, Alabama’s most vulnerable are often left without any true recourse at all.

Incentivizes the pursuit of profit over the fair administration of justice.Under Alabama law, law enforcement keeps 100 percent of the proceeds from forfeited property. Thus, law enforcement agencies have an incentive to seize as much property as possible, knowing that for anything but real property the owner will then have the burden of proving the property was lawfully obtained. Because Alabama’s law enforcement agencies are not required to report the property they seize, we do not know the scope of the problem. But, if Alabama law enforcement agencies’ use of the federal asset forfeiture program is any measure, the problem is huge. Between 2000 and 2013 Alabama law enforcement agencies seized over $75 million dollars in property, and none of that required a warrant or indictment, much less a criminal conviction. Law enforcement should not be put in a position where they appear to value funding their budget over the protection of individual rights.

 The Alabama legislature must pass five basic reforms:

  1. Require law enforcement to secure a criminal conviction before allowing a forfeiture to proceed. Requiring the government to first prove that the individual whose property was taken actually committed a crime and then prove that the property seized was the product of that crime will place the burden back where it belongs – on the government. This straightforward step would protect Alabamian’s property rights while better ensuring that law enforcement are focused on public safety, not generating revenue.
  2. Require an accounting of the property seized under Alabama’s civil asset forfeiture program. Alabama’s program currently resembles a black hole because there’s no requirement that law enforcement report what they’ve taken from the public. It’s time for Alabama to being sunlight to its civil asset forfeiture program.
  3. Require the state to distribute forfeiture proceeds to its general fund budget instead of allowing law enforcement agencies to keep it. This reform would help remove the profit motive from this practice. Such reforms should be welcomed and supported by anybody who believes that in the eyes of the law, we are all innocent until proven guilty.
  4. Ensure individuals facing a civil asset forfeiture proceeding have access to quality, adequately funded counsel regardless of their ability to pay. Currently, Alabamians seeking to defend their property in court must hire their own attorney. Those who cannot afford an attorney must either represent themselves in court or give up their property. Access to justice is a cornerstone of our judicial system, and no Alabamian should be forced to defend their property without an attorney.  
  5. Prohibit Alabama law enforcement from using the federal civil asset forfeiture program unless it includes the requirements outlined above. The federal forfeiture plan should not be a loophole for law enforcement to bypass state policies designed to prevent abuse of this practice. Alabama should bar its law enforcement from participating in the federal program until these basic protections are in place.

Prison Construction is the Wrong Approach for Alabama, Says Alabama Appleseed

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Montgomery, AL – Today the Alabama Department of Corrections (ADOC) announced a plan to hire a project management team to construct new prison facilities and renovate existing facilities. This announcement follows unsuccessful attempts in 2016 and 2017 to pass prison construction legislation through the Alabama Legislature.

“Alabama has a choice – it can embrace evidence-based reforms that have been proven to increase public safety and reduce the burden on taxpayers in other southern states, or double down on expensive and ineffective incarceration,” said Frank Knaack, executive director of Alabama Appleseed.

Overincarceration is not unique to Alabama. In 2007, Texas projected that the state would need to construct new prisons at a cost of approximately $2 billion. It chose another direction: Instead of building new prisons, Texas focused on front-end reforms, including funding treatment and diversion programs, and back-end reforms, including capping parole caseloads and expanding halfway house space and in-prison treatment programs.  As a result, Texas is slated to close its eighth prison in six years. South Carolina followed a similar approach, resulting in the closure of six prisons since 2010. And, both Texas and South Carolina have seen substantial reductions in their crime rates.

“As our neighbors in Texas and South Carolina have shown us, by creating more appropriate punishments for low-level offenders and reinvesting a fraction of the money that would have been needed to build prisons in community-based rehabilitation programs, we can reduce the burden placed on our taxpayers without jeopardizing public safety,” said Knaack.

While the specific timeline for prison construction is unclear under the ADOC plan, past prison construction proposals allotted five years for completion.

“The options are clear – Alabama can spend the next five years building new prisons and locking in a reliance on incarceration and a massive corrections budget for a generation to come, or we can spend the next five years implementing the reforms executed in Texas and South Carolina, placing Alabama on the path to closing prisons and reducing the burden on our taxpayers,” Knaack said.

Alabama Appleseed Urges Governor Ivey to Rethink Alabama’s Drug Policy

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Montgomery, AL – The following statement is by Frank Knaack, executive director of Alabama Appleseed, regarding Governor Ivey’s decision to award $1.3 million to establish the Alabama Drug Enforcement Task Force:

“After more than 45 years of the War on Drugs, one thing is clear – we cannot prosecute our way out of drug use. Approximately one in every seven people in Alabama’s already overcrowded prisons are there because of a drug offense, yet drugs remain cheap and widely available. Doubling down on this failed strategy is an expensive and ineffective approach.

Alabamians would be much better served by redirecting money to treatment programs and other public health based responses that have been shown to reduce drug use and save lives. We urge Governor Ivey to reconsider her decision.”

​Alabama’s Death Penalty Process is Broken

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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.

The legislature voted to make Alabama’s death penalty process even less reliable …  Now it’s up to the Governor to stand up for justice!

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Eight times since 1976 the state of Alabama has sent a person to death row and gotten it wrong. One of those exonerees, Anthony Ray Hinton, spent almost 30 years on Alabama’s death row before his volunteer lawyers were able to show that the government relied on flawed evidence – that he was innocent. Mr. Hinton’s case shows that it can take years to uncover evidence of innocence. Despite this knowledge, last week the Alabama legislature voted to “streamline” Alabama’s death penalty process. As Mr. Hinton wrote last month, had SB 187 been in place while he sat on death row, he would likely have been executed despite his innocence.

Regardless of where each of us stand on the death penalty, opposition to this legislation should be universal. In the United States, the importance of ensuring a fair and accurate death penalty process should be non-negotiable. Unfortunately, Alabama legislators disagreed.

Proponents of this legislation, including Alabama’s new Attorney General, are using one of the oldest tricks in the book to gain support . . . fear. In  a recent op ed by Attorney General Marshall, he began by retelling the gruesome facts surrounding a 37 year-old murder. In General Marshall’s death penalty narrative, the government always convicts the right person. It’s a perfect justice system (found in the fiction aisle). According to the Attorney General’s logic, if the facts are gruesome then justice must be swift, regardless of those pesky innocence issue.

In reality, SB 187 – the so-called “Fair Justice Act” – would:

  1. Undermine the ability of post-conviction counsel to fully defend their client by limiting their ability to conduct a thorough investigation, thus increasing the likelihood that Alabama would execute an innocent person (e.g. under this bill the direct and post-conviction appeals must occur at the same time, making it impossible for the post conviction counsel to properly investigate whether the direct appeal counsel provided ineffective assistance of counsel); and;
  2. Fail to ensure the appointment of qualified counsel at the post-conviction stage, thus compounding the issues surrounding ineffective assistance of counsel that already plague the trial and direct appeal stages.

While the facts surrounding a murder may be gruesome, they are reiterated to distract us – to make us forget what the legislation before us would actually do, which is to prioritize rushing to an execution over ensuring the accuracy of the conviction. The impact of SB 187 is clear – it would make it more difficult for an innocent person to prove their innocence. And, as Jennifer Thompson from Healing Justice pointed out, when an innocent person sits in prison, the actual guilty person remains free to commit additional crimes.

We’re not the only one to raise a red flag around this legislation – here’s a snippet of the widespread opposition to SB 187:

  • Linda Klein, President, American Bar Association – “The American Bar Association takes no position for or against the death penalty itself, but our members – who include prosecutors, defense lawyers, and judges – have long been committed to ensuring that capital punishment is fair, unbiased, and accurate. Our expertise provides us with a unique perspective regarding the likely pitfalls and unintended consequences of this legislation.”
  • Anthony Ray Hinton, Death Row Survivor – “I spent 30 years on Alabama’s death row for a crime I did not commit. If proposed changes to Alabama’s postconviction procedures under consideration by the state legislature had been enacted, I would have been executed despite my innocence.”
  • Jennifer Thompson, Founder, Healing Justice – “By prioritizing speed of the death penalty process over accuracy, SB 187 will not only place unnecessary pain on victims and survivors but also undermine the safety of others. Every day an innocent person sits in prison, the guilty person is free to commit additional crimes.”
  • Montgomery Advertiser Editorial Board – “Alabama legislators this past week wrongly approved a bill that shortens the appeal process for people convicted of a capital crime and facing an execution. Too much is at stake to take decisions of execution lightly. Mainly, it’s someone’s life and when the state makes the choice to kill a person, we are all responsible for that death.”
  • Ronald Sullivan Jr., Professor, Harvard Law School  – “The deceitfully named bill (it is neither fair nor just) would shorten the time for appeals and reduce already inadequate resources that death row prisoners have when appealing their convictions. Alabama has clearly put its head in the sand and is ignoring its own disgraceful experience with wrongful convictions and the death penalty, as well as current recommendations from other states.”
  • Lisa Borden, Attorney in Birmingham – “While this may sound like a good plan to those unfamiliar with the process, the proposal is neither fair nor just, and will only increase the already substantial likelihood that Alabama will execute a wrongfully convicted person.”
  • Stephen Cooper, Former Assistant Public Defender in Alabama – “Conscientious Alabamians concerned that, like Ray Hinton, freed after a hellacious 30 years on Alabama’s death row proclaiming his innocence, additional innocents might be unjustly thrust towards terrible and inhumane deaths – without an adequate chance to prove their innocence and/or that their constitutional rights were violated – you need to speak up. You need to speak up now!”

The awesome power of the government to kill in our name must be based on a fair and accurate process. SB 187 would do the opposite. We urge Governor Ivey to veto this legislation.

Alabama Legislature Sends Bill to Make Alabama’s Death Penalty Process Even Less Fair and Accurate to the Governor

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Montgomery, AL – The following statement is by Frank Knaack, executive director of Alabama Appleseed, regarding SB 187.

Eight times since 1976 Alabama has sent a person to death row and gotten it wrong. Yet, instead of focusing on ways to keep Alabama from making another potentially deadly mistake, the Alabama legislature voted to make Alabama’s death penalty process even less reliable.”

“Opposition to this legislation should have been universal. In the United States, the importance of ensuring a fair and accurate death penalty process should be non-negotiable. The Alabama legislature disagreed.”

“We urge Governor Ivey to veto this bill. This is not about where you stand on the death penalty, it’s about where you stand on the need to ensure a fair and accurate death penalty process.”

SB 187 will now go to Governor Kay Ivey. For additional information regarding SB 187, please read Alabama Appleseed’s fact sheet.

House Votes to Make Alabama’s Death Penalty Process Even Less Fair and Accurate

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Montgomery, AL – The following statement is by Frank Knaack, executive director of Alabama Appleseed regarding SB 187, which the Alabama House of Representatives passed today:

Eight times since 1976 Alabama has sent a person to death row and gotten it wrong. Yet, instead of focusing on ways to keep Alabama from making another potentially deadly mistake, the Alabama House voted today to make Alabama’s death penalty process even less reliable.”

“Opposition to this legislation should be universal. In the United States, the importance of ensuring a fair and accurate death penalty process should be non-negotiable. Today, the Alabama House disagreed.”

For additional information regarding SB 187, please read Alabama Appleseed’s fact sheet.

Alabama Appleseed Commends Senate Vote to Ban the Box on State Employment Applications

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Montgomery, AL – Alabama Appleseed today applauded the Alabama Senate’s vote to “ban the box” (SB 200) on state employment applications.

“Banning the box better ensures that Alabamians seeking state employment are judged on their merit, not their mistakes,” said Frank Knaack, executive director of Alabama Appleseed. “Denying a person’s application without considering their qualifications or rehabilitation prevents people who’ve completed their sentence from getting a fair chance at a fresh start.”

According to the U.S. Department of Justice (DOJ), more than 650,000 individuals are released from prison every year. The DOJ has identified three key elements to successful re-entry into our communities, one of which is finding and keeping a job.

“This legislation would help make our communities safer,” said Knaack. “Recidivism rates are reduced when individuals are able to successfully reenter their communities. By removing the criminal background box from state employment applications, individuals seeking state employment have an honest shot at securing a job. It’s a win-win – it provides people with a second chance to make an honest living and helps make our communities safer.”

SB 200 now moves to the House.

For additional information regarding SB 200, please read Alabama Appleseed’s fact sheet.

House Committee Votes to Make Alabama’s Death Penalty Process Less Reliable, Says Alabama Appleseed

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Montgomery, AL – The following statement is by Frank Knaack, executive director of Alabama Appleseed regarding SB 187, which the Alabama House of Representatives Judiciary Committee favorably reported today:

“Eight times in the modern death penalty era Alabama has sent a person to death row and gotten it wrong. Yet, instead of focusing on ways to keep Alabama from making another potentially deadly mistake, the House Judiciary Committee voted today to make Alabama’s death penalty process even less reliable. Regardless of where each of us stand on the death penalty, we should all agree that Alabama must do everything in its power to not execute an innocent person. SB 187 goes in the opposite direction – it would increase the likelihood that Alabama could make a fatal mistake.”

For additional information regarding SB 187, please read Alabama Appleseed’s fact sheet.