By: Akiesha Anderson, Policy Director

This legislative session, Alabama Appleseed had four main legislative priorities: (1) Repeal or reform the Habitual Felony Offender Act; (2) Stop Civil Asset Forfeiture; (3) End Needless Driver’s License Suspensions; and (4) Create a Diversion Program Study Commission. Below is a summary of these priority issues that were deliberated by the 2021 Legislature. 

The Habitual Felony Offender Act

Report: Condemned
Bills we supported: HB 107, HB 24 

Legislation to repeal Alabama’s draconian Habitual Felony Offender Act (“HFOA”) is desperately needed. The HFOA currently ensnares hundreds of older people with life or life without parole sentences for offenses that would result in much shorter sentences under today’s laws. That is why we supported HB 107, sponsored by Rep. Chris England, designed to repeal the HFOA. This bill successfully made it out of the House Judiciary Committee with strong bi-partisan support, though it never reached the full chamber of the House of Origin for a vote. Appleseed thanks the 150+ Alabama judges, law professors, former prosecutors, and lawyers who signed on in support of a Dear Lawmaker letter and the countless constituents that sent emails or made phone calls urging legislators to support this important piece of legislation.  

In addition to supporting a full repeal of the HFOA, Appleseed supported HB 24, a bill sponsored by Rep. Jim Hill, that was designed to reform the HFOA. If passed, this legislation would have allowed people who were sentenced under the HFOA for committing nonviolent offenses to petition the court for a review of their case and potentially be resentenced under current sentencing guidelines. We also supported an amendment to HB 24 that was offered by Sen. Arthur Orr that was designed to expand the class of people eligible for relief to include people who had “strikes” that led to an enhanced sentence arising from offenses that are now considered Class D felonies yet were Class C felonies at the time of initial sentencing. Although HB 24 came very close to passing out of both chambers, on the last day of session it failed to make it to the Senate floor for a full chamber vote. 

Civil Asset Forfeiture

Report: Forfeiting Your Rights: How Alabama’s Profit-Driven Civil Asset Forfeiture Scheme Undercuts Due Process and Property Rights
Bills we supported: SB 210 (passed), HB 394

For too long, civil asset forfeiture has been improperly used as a revenue generator for law enforcement entities throughout the state. As currently structured, civil asset forfeiture empowers police to seize cash or other assets based on probable cause that they are connected in some way to certain criminal activity, even if no one is ever charged with a crime. We believe that this violates a host of due process rights and that civil asset forfeiture ought to be replaced with a system that ensures due process protections. 

That is why, this session Alabama Appleseed supported SB 210 and HB 394, companion bills by Sen. Arthur Orr and Rep. Andrew Sorrell, that were designed to replace civil asset forfeiture with criminal asset forfeiture. We believe that as originally written, these bills would have been good for the State of Alabama due to them: (1) requiring transparency in the criminal asset forfeiture process; and (2) prohibiting Alabama law enforcement from receiving proceeds from individuals who have not been convicted of a crime. 

Although SB 210 did ultimately pass, the substitute version that made it out of the State House was significantly diluted in comparison to the original version of the bill. While the bill that passed adds some minimal due process protections to existing civil asset forfeiture laws, Appleseed hopes that in the future, civil asset forfeiture is replaced altogether with criminal asset forfeiture. 

Driver’s License Suspensions

Report: Stalled: How Alabama’s Destructive Practice of Suspending Drivers Licenses for Unpaid Traffic Debt Hurts People and Slows Economic Progress
Bills we supported: HJR 31 (passed), HB 129

At the beginning of this year, nearly 100,000 Alabamians had a suspended license for things unrelated to unsafe driving – namely failure to appear in court, failure to pay a traffic ticket, or an alcohol or drug offense (excluding DUIs). Suspending driver’s licenses for things unrelated to road safety hurts families by making breadwinners forego necessities; slows the economy by keeping people out of work; and leads people to commit crimes to pay off their tickets. That is why Alabama Appleseed worked closely on HJR 31 and HB 129, legislation sponsored by Rep. Chris Pringle and designed to end the practice of suspending driver’s licenses for frivolous reasons. Although HB 129 ultimately did not come up for a vote to pass out of the House Judiciary committee this session, HJR 31 which provides the mechanism for the State to opt out of requiring license suspensions for petty drug offenses successfully made it out of the Legislature and to the Governor’s desk.

Diversion Programs

Report: In Trouble: How the Promise of Diversion Clashes with the Reality of Poverty, Addiction, and Structural Racism in Alabama’s Justice System
Bills we supported: HB 71, HB 73

A goal of Alabama Appleseed is to increase access to alternatives to incarceration, and beyond-the-prison-walls public safety solutions. It is no secret that Alabama’s men’s prison system is currently in crisis. Our history of tough on crime laws have led to us having one of the highest incarceration rates in the world, the highest prison homicide rate in the nation, and a men’s prison system that is dangerously overcrowded. We are also in the process of being sued by the U.S. Department of Justice, as a lawsuit that was filed under the Trump Administration has argued that our prisons violate the constitutional rights of all men housed in them. Appleseed believes that it is time for State leaders to seriously invest in alternatives to incarceration such as pre-trial diversion and Community Corrections programs, as one of many solutions to the human rights crisis in state prisons.

Although diversion programs currently exist throughout most of the state, not all Alabamians have access to them. That is why we supported HB 73, sponsored by Rep. Jim Hill, that would have required every judicial circuit to establish a Community Corrections program. Although this bill made it out of the House of Origin and Senate Judiciary committee, it never made it to the Senate floor for a full chamber vote.  

Despite the existence of diversion programs and drug courts throughout most of the State, they are all participant-funded. This means that the budget to run and operate these programs is derived from the pockets of the people who utilize the programs. So this year we also supported HB 71, sponsored by Rep. Jim Hill, because we believe in establishing universal eligibility and completion requirements to safeguard against the existing practice of the completion of diversion programs being determined by whether all fees have been paid. If passed, HB 71 would have created an Accountability Court Commission tasked with overseeing, studying, and creating uniformity amongst all existing diversion programs. Although this bill made it out of both the House Judiciary Committee and House Ways and Means Committee, it never made it to the floor of the House of Origin for a full chamber vote. 

Other Legislation 

In addition to the aforementioned central areas of focus, we also monitored, worked on, or supported several other key pieces of criminal justice reform legislation this session. Below is a summary of some of those other key pieces of legislation.

Criminal Justice – Prison Reform

Report: Death Traps
Bills we supported: HB 92, HB 106 (passed), HB 361

This session we also supported several pieces of legislation that we believed could have provided meaningful relief to Alabama’s current prison crisis. We were strongly in favor of bills such as HB 92, by Rep. Jim Hill, designed to create a second parole board; HB 106, by Rep. Chris England, designed to require the Alabama Department of Corrections (ADOC) submit to more legislative oversight; and HB 361, by Rep. David Faulkner, designed to require ADOC to assist people with getting a non-driver’s license identification card prior to release from prison. 

While HB 92 made it out of the House Judiciary committee, it stalled when re-assigned to the House Ways and Means committee. Similarly, although HB 361 made it out of the House of Origin, it never made it on the agenda in the Senate Finance and Taxation General Fund committee. In contrast, HB 106 successfully made it out of both chambers and was sent to the Governor’s office for her signature. 

Fines & Fees

Report: Under Pressure
Bills we supported: HB 499, SB 177

Stopping the State’s overreliance on court costs, fines, and fees was another area of legislative interest this session. That is why we supported companion bills HB 499, sponsored by Rep. Chris England and SB 177, sponsored by Sen. Roger Smitherman. If passed, these bills would have created an Alabama Court Cost Commission designed to review existing court costs to determine if they are reasonably related to the cost of running a court system. Unfortunately, although both bills made it out of the Judiciary committee in their respective House of Origin, neither of these bills received a vote by their full chamber. Thus, neither bill passed this session.

Criminal Justice – Drug Policy

Report: Alabama’s War on Marijuana
Bills we supported: SB 59 (passed), SB 149

It is time for Alabama to pass smart alternatives to criminalizing marijuana possession and use. That is why this session we supported SB 59, by Sen. Tim Melson that was designed to legalize medical marijuana. We also supported SB 149, by Sen. Bobby Singleton that was designed to decriminalize marijuana use and possession. Ultimately, SB 59 passed out of both chambers and was sent the Governor; and SB 149 passed out of the Senate Judiciary committee yet never made it to the floor of the House of Origin for a full chamber vote. 

State Transparency

Bills we supported: HB 392 (passed), SB 165, SB 290 

Alabama Appleseed strongly supports bills designed to strengthen government transparency in all regards. That is why this session we closely watched HB 392, sponsored by Rep. Mike Jones; SB 165, sponsored by Sen. Arthur Orr; and SB 290, sponsored by Sen. Greg Albritton. SB 165 was designed to strengthen Alabama’s existing open records law and both HB 392 and SB 290 were designed to increase checks-and-balance between the legislative and executive branch by requiring the executive branch to run multi-million dollar contracts and agreements past the legislature for legislative approval before such contracts could be finalized. 

This session, SB 165 and SB 290 made it out of the Senate committees they were assigned to yet not to the floor of the House of Origin for a full chamber vote. In contrast, HB 392 made it out of both the House and Senate to the Governor’s desk. Unfortunately, however, the final version of HB 392 was significantly watered down before leaving the State House. The version of this bill sent to the Governor does not require legislative approval for the state to enter into large multi-million dollar contracts (as was the initial intent); rather, it simply requires legislative review of large contracts. 

Juvenile Justice

Report: Hall Monitors with Handcuffs
Bills we supported: SB 203

Alabama’s public K-12 school children deserve due-process rights and protections against suspensions and expulsions. That is why we strongly supported SB 203, sponsored by Sen. Roger Smitherman and designed to create such due process protections. Although this bill made it out of the Senate Education committee and House or Origin, it failed to pass out of the House Education committee. 

By Akiesha Anderson, Appleseed Policy Director

Today, the Appleseed Network released its newest report, “Protecting Girls of Color 2020.” This report contains disturbing findings that show Black girls within Alabama’s K-12 public school system are disciplined more harshly than their white counterparts.

Based on data from the U.S. Department of Education, in 2015-2016 (the most recent year for which data was available), there were nearly 80,000 more white female students than Black female students enrolled in Alabama’s K-12 public schools. However, our research found that Black female students were more than twice as likely as that their white counterparts to experience all forms of school discipline, from suspension, to expulsion, to referrals to law enforcement, and even arrests:

 

  • 16.1% of Black female students received an out-of-school suspension, compared to 3.3% for female white students;
  • 9.1 % of Black female students received an in-school suspension, compared to 3.6% for female white students;
  • 545 Black female students received an expulsion, compared to 262 female white students;
  • 371 Black female students were referred to law enforcement, compared to 177 white female students;
  • 238 Black female students experienced a school-based arrest, compared to 71 white female students.

These figures illustrate a troubling reality regarding the existence of racial inequity within Alabama’s school-based discipline practices and the ways in which such disparities contribute to the school-to-prison pipeline and the criminalization of Black girls. As communities across the United States examine  over-policing, over-incarceration, and violence against Black people by law enforcement, this research provides critical data on how schoolchildren are not immune from these disparities.

Last year, Alabama Appleseed released “Hall Monitors with Handcuffs: How Alabama’s Unregulated, Unmonitored School Resource Officer Program Threatens the State’s Most Vulnerable Children” a report which contained additional findings about the way in which Black students within Alabama’s schools experience disparate treatment and exclusionary discipline at higher rates than their white peers. That report found that even though “Alabama public schools are 56.9% white and 33.5 percent African-American…. 74.4% of school-related arrests and 61.3% of referrals to law enforcement were imposed upon by African-American children.” That report also found that in comparison to all Alabama schoolchildren, Black boys specifically are referred to law enforcement at a rate of 2.5 times more often.

Numerous researchers, including those at Appleseed have found that the practice of seemingly holding Black students to a higher standard of behavior and/or imposing harsher penalties for misbehavior can lead to a lifetime of consequences for students of color. However, much of the existing research assessing the school-to-prison pipeline within Alabama, has focused solely on Black boys or students of color in the aggregate. Unfortunately, much less discussion has been dedicated solely to the disparate treatment of Black girls within school discipline contexts.

By focusing solely on girls of color, and specifically Black girls within Alabama, Appleseed’s newest report serves as an important first step to beginning the conversation about ways in which Black girls specifically can and should be better protected within our K-12 public schools. Ideally, future conversations will explore ways that current disciplinary practices can be replaced with solutions that allow Black girls the same freedom as their white counterparts to make and learn from childhood mistakes without the added consequences of being pushed out of school and into the criminal justice system.

International law firm Wilkie Farr & Gallagher, LLC lent expertise as Appleseed’s pro bono partner for this project. The full report included research on disparate treatment of Black girls in schools in Massachusetts and Kansas, as well as Alabama.

By Akiesha Anderson, Appleseed Policy Director

On March 30th, Alabama Appleseed sent a letter to Dr. Scott Harris—Director of the Alabama Department of Public Health (ADPH), and Brian Hastings—Director of the Alabama Department of Emergency Management (ADEM), urging their agencies to share with Appleseed and the general public their plans to ensure that COVID-19 testing sites would be set up in every county throughout the Black Belt.

What factors motivated the decision to send this letter?

The answer for this is simple, I care about the plights and difficulties that affect us, as a community and society.

It is very well understood that we are all navigating the struggles associated with combating COVID-19  as a society. In the recent weeks, there have been national, state, and local conversations about the disproportionate impact that COVID-19 has had on Black communities with the understanding that this is tied into inequality in our health care system. Although these conversations about how racism and bias negatively impact how Black people in America receive access to healthcare are not new, they remain essential. It is also essential that as we have these conversations, we delve exploring the intersectionality of race, poverty, gender, and geography.

A farmer hauls hay in Lowndes County, one of the poorest counties in the nation. Photo Bernard Troncale

At the time the letter was sent, there were a total of 831 confirmed COVID-19 cases throughout the state, and the first case of COVID-19 had been confirmed in Alabama only 10 days prior. While it was admirable to see that within 10 days the state was able to test nearly 1000 Alabamians, it was concerning to know that although 13% of all tests had resulted in a positive case, less than 1% of those positive cases were found in the Black Belt.

According to 2019 Census data, residents of the Black Belt counties make up 11% of Alabama’s population. Census data also reveals that the Black Belt has a higher percentage of both Black and poor residents that the statewide average. Given reports of testing shortages generally, the limited information gleaned from ADPH data, historical context, and the demographics of the Black Belt, it seemed unlikely at the time, that the state was disseminating the same resources to the Black Belt as they were other communities.

What did we learn in the weeks immediately after sending the letter?

Within just a few hours of receiving our letter, Director Hastings shared that it was his belief that plans were in place to expand testing throughout the Black Belt. This sentiment was repeated by elected officials and leaders throughout the coming weeks, as I continued to inquire about when testing sites would expand throughout the region. In lieu of permanent testing sites, many Black Belt counties have relied on mobile testing sites in an effort to increase testing. Over the past weeks, several Black Belt counties set-up these mobile sites at the County Health Departments.

In early April, ADPH employees revealed that there was no clear plan with regard to how often any of the mobile sites would return to each county. In Wilcox County, for example, an employee at the County Health Department shared with me that they were unsure whether the mobile testing sites would be returning every week or on a case-by-case basis. However, the employee feared it would be the latter.

In addition to barriers to testing created by such infrequencies, testing within these counties was seemingly somewhat inaccessible to Black Belt residents for several other reasons. For example, due to the limited amount of tests distributed throughout the state, health departments within the Black Belt indicated that they were using specific and narrow criteria to pre-screen patients beforehand to determine who could receive testing. Specifically, the county health departments reportedly were only testing people that BOTH (a) had a doctor’s referral and (b) met the following criteria: (1) were symptomatic with a fever, cough, shortness of breath AND were either (1) 65 or older, (2) a health care worker, or (3) someone with an underlying health condition that makes them immunocompromised/at higher risk.

These criteria were troubling for numerous reasons. While this criteria might have seemed normal and like an appropriate way to determine how to prioritize the allocation of limited resources/tests, such criteria essentially meant that many Black Belt residents would be considered ineligible for testing at the State Department of Health sites. Worth noting first, this criteria was stricter than the criteria outlined on the ADPH website. That suggests that as a matter of unofficial policy implementation, Black Belt residents might have had a harder time accessing tests than members of other communities throughout the state.  Secondly, as previously discussed, there are a number of characteristics unique to rural, Black Belt, and poor communities that likely made these criteria more harmful than helpful. For example, considering the historic disinvestment in rural and Black Belt counties it is possible that Black Belt residents are less likely to have access to a doctor that is able to give them a referral. Also, for those who  do have access to a doctor, research has long shown how racism and bias plays out in the healthcare system, so minority and poor people are also at the mercy of whether or not a doctor even believes them or finds them credible or worthy enough of receiving an exam. Similarly, due to healthcare shortages and vulnerabilities that have existed long before COVID, it is also likely that members of Black Belt communities may have undiagnosed health  conditions that they are unaware of simply because they don’t have the same access to healthcare professionals as members of other communities do.

Has testing in the Black Belt improved in the past month?

Although the Black Belt still lacks permanent testing sites within eight of its ten counties, in the month since Appleseed wrote to Dr. Harris, testing capacity and rates have risen. Within the last two weeks for example, testing of Black Belt residents has nearly doubled—as tests administered to Black Belt residents rose from a total of 4645 on April 21st to a total of 8362 on May 1st. Despite the fact that testing throughout the state of Alabama remains low—less than 2% of the state’s population has been tested— testing amongst Black Belt residents is beginning to reach parity with State-wide rates, have gotten closer to reaching parity with statewide rates. As of May 1st, approximately 1.5% of the Black Belt has been tested for COVID-19. However, as Black Belt testing increases, we are beginning to witness the opposite problem of what was seen weeks ago, when Black Belt residents seemed to be underrepresented when assessing positive test results. In contrast, as testing increases, we are beginning to witness Black Belt residents are becoming overrepresented with regard to positive test results. Although Black Belt residents make up 11% of Alabama’s population, they now make up 16% of the COVID-19 positive test results.

What does this increase in positive COVID-19 cases within the Black Belt reveal?

It is no secret that there have been numerous challenges that the state Department of Health and other state leaders have had to navigate since the first coronavirus case was confirmed in Alabama. However, the recent rate at which new cases have been confirmed within the Black Belt suggests that the previously low number of confirmed cases likely resulted from simply a lack of testing rather than a lack of occurrences. Given this possibility along with the State’s decision to slowly reopen the state by rolling back both social distancing and business restrictions; it is possible that the state may not be able to increase testing in enough time to detect and prevent spread of existing COVID-19 cases in the area.

A 71-year-old farmer in Perry County, Alabama waiting on parts to fix a broke tractor. Photo Bernard Troncale

Something to Ponder

Every policy, action or inaction by a public official or governmental institutions is ultimately a decision that tells us something about what people, communities, and beneficiaries said actors both prioritize and deprioritize. Which communities get allocated resources, how quickly, and how many resources has long been deeply inequitable and oft-times exclusionary process. As leaders continue to make decisions about the allocation of resources during this epidemic, we should be vigilant to fight against the inequities that race, class, and nepotism can create. Because policy makers and public officials routinely sacrifice some people for the perceived “greater good” of others, we must continue to challenge who we allow decisionmakers to  deem as “disposable”.

Alabama Appleseed’s mission of justice and equity for all Alabamians compels us to do so. Given what’s at stake with this pandemic, this mission is more urgent that ever.