By Leah Nelson, Appleseed Research Director | Leah.Nelson@alabamaappleseed.org

PICKENS COUNTY — Sean and Eboni Worsley’s nightmare began with music a police officer found too loud for his liking.

It was August 2016, and the Worsleys were on their way east, heading from a visit with Eboni’s folks in Mississippi to surprise Sean’s family in North Carolina. Sean’s grandmother had been displaced by a hurricane and he was hoping to help rebuild her house. The couple had some venison in the trunk of their car, a gift from Eboni’s dad, a hunter, that they planned to share with Sean’s family. 

Army veteran Sean Worsley earned a Purple Heart in Iraq

Sean, now 33, is a disabled veteran with a traumatic brain injury and post-traumatic stress disorder (PTSD) from his deployment in Iraq. He uses medical marijuana to calm his nightmares and soothe his back pain. His medical marijuana was in the back seat. He got the prescription in Arizona, where medical marijuana has been legal since 2011.

Sean was walking into the gas station when Officer Carl Abramo of the Gordo, Ala. police department approached the car. He told the Worsleys their music was too loud. He asked to search the vehicle. 

The Worsleys assented. Sean’s marijuana was legally prescribed. They thought they had nothing to hide. 

They were wrong. And now Sean has been sentenced to five years in Alabama’s violent, drug-filled, corrupt prison system because of it.

Playing Air Guitar while Black

On August 15, 2016, at 11:08 PM, Officer Carl Abramo was stationed across from the Jet Pep on Highway 82, a major east-west thoroughfare that runs from New Mexico to Georgia. According to an arrest report filed five days after the incident, he heard loud music coming from a vehicle and “observed a Black male get out of the passenger side vehicle. They were pulled up at a pump and the Black male began playing air guitar, dancing, and shaking his head. He was laughing and joking around and looking at the driver while doing all this.”

The couple was Sean and Eboni Worsley, who had stopped a few miles from the Pickens County border to refuel their car. Abramo told them their music was so loud it violated the town’s noise ordinance. They turned it down. According to the arrest report, he smelled marijuana and asked the couple about it. Sean told him he was a disabled veteran and tried to give him his medical marijuana card.

“I explained to him that Alabama did not have medical marijuana. I then placed the suspect in hand cuffs,” the report reads. 

Abramo called for backup and three more officers arrived. Eboni explained that they were unaware that medical marijuana was prohibited in Alabama. According to the arrest report, she told Abramo the marijuana was in the back seat. 

Abramo searched the car. He found the marijuana and the rolling papers and pipe Sean used to smoke it, along with a six-pack of beer, a bottle of vodka, and some pain pills Eboni had a prescription for. He arrested them for all of it. Pickens is one of Alabama’s 23 partially dry counties, so it is technically illegal to possess most alcohol there — though in practice, the rule is only enforced against violators who are profiting from its sale. He arrested them for that, and for violating the noise ordinance and for illegal possession of marijuana and paraphernalia. Eboni’s pills weren’t in the original bottle, which Abramo claimed constituted a felony. He put the handcuffs on her himself. 

Sean Worsley, and his wife Eboni, in happier days

In 2016, the year the Worsleys were arrested, Black people were more than four times as likely as white people to be arrested for marijuana in Alabama.

The Worsleys spent six days in jail. Their lives would never be the same.

Marijuana is a Schedule One Controlled Substance, meaning that the federal government views it as illegal in all instances. Alabama hews to much the same line: except for extremely narrow exemptions involving CBD, possession of any amount can be a felony. First-time possession is charged as a misdemeanor if the arresting officer thinks it was for personal use; all subsequent instances of possession are felonies. If the arresting officer believes the marijuana is for “other than personal use,” then possession of any amount can be charged as a felony even if it’s an individual’s first time being arrested for possession.

That’s what happened to the Worsleys. Even though Sean’s marijuana was legally obtained via a prescription and packaged in a prescription bottle, Abramo booked him in for possession for other than personal use, a Class C felony. Eboni received the same charge, though it was later dropped.

Abramo, who no longer works for the Gordo Police Department and could not be reached for comment, takes a dim view of those he deems to be criminals. His Facebook page is a mishmash of pro-law enforcement videos and memes that demean Muslims, Mexicans, and Democrats. Nearly all the pro-law enforcement posts feature Black people taking up for the police, a common tactic among conservatives seeking to demonstrate that they are not racist. Many of the rest of his Facebook posts promote racist birther conspiracy theories about President Barack Obama and villainize non-white people and ethnic or religious minorities. One meme, shared in July 2019, states, “Homeless Veterans Should Be Taken Care Of BEFORE Muslim ‘Refugees.’”

“We watched people die. We watched helicopters shoot people down.”

Things would have gone differently if the Worsleys had been traveling through most other states. Recreational use of marijuana is legal in 14 states; medical marijuana is legal in 33. It is commonly used by veterans and others to manage the symptoms of a wide range of ailments, including PTSD and pain. Sean suffered from both as a result of his military service, for which he was awarded a Purple Heart.

In fact, when Sean was 28, the VA determined that he was “totally and permanently disabled due solely to [his] service-connected disabilities,” according to a February 2015 benefits summary letter included in his Veteran’s Health Administration (VHA) records. He suffered from a traumatic brain injury that seriously impaired his short-term memory, as well as PTSD, depression, nightmares, and back and shoulder pain. In 2015, Sean’s impulsivity, cognitive difficulties, sleep disturbances and depression were so debilitating that the VHA determined he required a caregiver. Eboni, then 30, took on that role. Sean’s “dependence level” was high, requiring “maximal assistance” with planning and organizing, safety risks, sleep regulation, and recent memory, and “total assistance” with self-regulation. He responded poorly to the various antidepressants, antipsychotics, and pain medications doctors prescribed. 

At times, that meant Eboni couldn’t work, leaving the couple dependent on Sean’s check from the VA. When he could, he supplemented that with part-time work as a roofer and gigs as a recording engineer. Eboni went with him to doctor’s appointments. She helped him keep track of his schoolwork when he sought a business degree to transform his freelance work as a recording engineer into a business. 

The VA does not prescribe or fill prescriptions for medical marijuana, nor may VA clinicians recommend its use. However, in light of marijuana’s efficacy in treating ailments common among veterans such as pain and PTSD, the VA is tolerant of veterans who use legally prescribed marijuana. In its official policy document regarding medical marijuana, the VA encourages clinicians and pharmacists to “discuss marijuana use with any Veterans requesting information about marijuana.” A social worker at the VA in Arizona where Sean received care said medical marijuana use is common among her clients and that she has seen how helpful it can be for people suffering PTSD.

Ellis English was Sean’s first-line supervisor while they were deployed together in Iraq in 2006-07. Like Sean, he suffers from PTSD as a result of his deployment. Unlike Sean, he has been unable to use medical marijuana. 

English retired from the Army in 2018. He now lives in Honolulu, where medical marijuana has been legal for two decades. He reports that most of his fellow Army veterans there treat their symptoms with medical marijuana. English wishes he could do the same. But because he works for the federal government, he cannot use marijuana without risking his job. 

He tried it once anyway when he was overwhelmed by a PTSD flare-up following his retirement. “It was really good. For once I felt relaxed. I didn’t have any pain. No headaches,” he said. “I felt almost normal.”

English remembers what Sean was like before the traumatic brain injury and the PTSD. He also remembers the incidents that caused them. Sean was English’s driver in Iraq, taking him and other troops on dangerous missions to look for and dismantle improvised explosive devices, or IEDs. Often, those devices exploded while the troops were there.

It was dangerous, terrifying work. “We were constantly going. We watched people die. We watched helicopters shoot people down. Had to go pick up the bodies,” English said.

English was with Sean when he received the traumatic brain injury that led to Sean being awarded a Purple Heart. Sean was knocked unconscious and had to be pulled out of the driver’s seat. One soldier lost his hearing on the mission. 

Sean changed after that, English said. The young soldier who used to work hard and get things done quickly became unreliable. He zoned out in the middle of work. He stopped taking care of himself. His personal hygiene declined. 

One night, he showed up in English’s room weeping and clutching his rifle. English was afraid he was going to kill himself and referred him to mental health. He no longer felt safe having Sean drive him. 

“I got him into mental health, he was off the mission for a while,” English said. “Finally, he came back but he wasn’t the same.”

Altogether, Sean spent five years in the military. His deployment to Iraq spanned 14 months, and he was honorably discharged September 22, 2008. Even after his injuries, he served in the Army Reserve until late 2010.  

Neither his service, nor his Purple Heart, nor his prescription mattered in Pickens County, Alabama.

What happened next

After six days in jail, the Worsleys were released on bond. It wasn’t cheap: On top of fees to the bail bondsman, they had to pay $400 to get their car out of impound. The meat in the trunk had gone bad after six days locked in a car in Alabama’s brutal summer heat, so the car needed to be professionally cleaned. But at least they were free.

That freedom was short-lived. For a state so eager to honor veterans, Alabama’s justice system produces some confounding results. This system’s determination to punish Sean set off a spiral of job loss, homelessness, additional criminal charges, and eventually incarceration in the country’s most violent prison system — all for a substance that’s legal in states where half of Americans live. 

But first, Sean and Eboni drove back home to Arizona. They found the charges made it difficult for them to maintain housing and stability, so they moved to Nevada, where they acquired a home and lived peacefully while their case progressed.  

Almost a year later, the bail bondsman called. He told the Worsleys that the judge was revoking bonds on all the cases he managed. He said they had to rush back or he would lose the money he had put up for their bond and they would be charged with failing to appear in court. 

They felt the bondsman had been kind to them when they were in Pickens County, so they borrowed money to make the trip and hit the road. They were due in court the next day. 

When they got to court, the Worsleys were taken to separate rooms. Eboni was horrified. She explained that Sean was disabled with serious cognitive issues, that he had PTSD, that he needed a guardian to help him understand the process and ensure he made an informed decision. If a legal guardian couldn’t be appointed, she offered to serve as his advocate in court as she served as his caregiver at home.

“They said no, and they literally locked me in a room separate from him. And his conversation with me is that they told him that if he didn’t sign the plea agreement that we would have to stay incarcerated until December and that they would charge me with the same charges as they charged him,” Eboni said. “He said because of that, he just signed it.”

Sean’s plea agreement included 60 months of probation, plus drug treatment and thousands of dollars in fines, fees, and court costs. Because the Worsleys had lived in Arizona at the time of their arrest, his probation was transferred to Arizona, instead of Nevada, where they lived. Transferring it again would mean another lengthy delay and more jail time while the paperwork was sorted out, they were told. 

Sean could not bear to stay. The Worsleys got a two-week pass from the probation officer in Alabama, drove home, broke their lease, and packed their things. When they arrived in Arizona, the only housing they could find on short notice was a costly month-to-month rental. Their funds were depleted, but at least they had a place to stay. 

The Worsleys were ready to start rebuilding their lives. But when they checked in with the Arizona probation officer, she told them that their month-to-month rental did not constitute a permanent address. She would not approve it for purposes of supervision and told them to contact probation in Alabama. They did, and the Alabama probation officer told them they would have to return to Pickens County to sign paperwork to redo the transfer. They didn’t have the money to do that, so they asked their Alabama lawyer if it could be done by proxy and proceeded with attempting to comply with the other terms of Sean’s probation.

Among those was drug treatment. Had he been an Alabama resident, Sean would have participated in mandatory programming through Alabama’s Court Referral, one of several diversion programs operating across the state. The terms of his probation required him to seek similar services where he lived, so in February 2018, Sean went to the VA to take an assessment for placement in drug treatment. 

The VA rejected him. A letter from VA Mental Health Integrated Specialty Services reads in part, “Mr. Worsley reports smoking Cannabis for medical purposes and has legal documentation to support his use and therefore does not meet criteria for a substance use disorder or meet need for substance abuse treatment.”

The Worsleys maintained contact with their Alabama lawyer and probation officer as best they could, but things were difficult. Eboni, a certified nursing assistant who works with traumatized children, had a job offer rescinded due to the felony charge in Alabama. She also lost her clearance to work with sensitive information to which she needed access to do her job. For a while, the Worsleys slept in their car or lived with family.

In January 2019, they again found themselves homeless. They requested assistance from a program that helps homeless veterans. Just as they completed the six-month program, the VA notified Sean that his benefits would be stopped because Alabama had issued a fugitive warrant for his arrest. Unknown to Sean, he had missed a February court date in Pickens County and the Pickens County Supervision Program had terminated his supervision, citing “failure to attend” and “failure to pay court-ordered moneys.” The case was referred to the district attorney’s office in March 2019.

The Worsleys were in a terrible situation. Eboni needed heart surgery, and Sean had to stop taking on extra gigs so he could help her recover. Rent was expensive, anywhere from $1,200-$1,500 a month, and they had a car loan as well. To cover costs, the couple took out a title loan, but they were unable to keep up with it. They lost Eboni’s truck. They lost their home and again had to move into a temporary rental, paying $400 a week to live in a suburb about an hour from the hospital where Eboni still had frequent appointments.

Sean was able to get his check started up again around August 2019, but the financial hole they were in was so deep that he didn’t have the $250 to renew his medical marijuana card. It expired.

In early 2020, Sean was pulled over on his way to Eboni’s sister’s home, where he was going to help with a minor repair. He had some marijuana with him. The officers who pulled him over noticed he was terrified. They asked him why. According to Eboni, he told them everything: about this PTSD, his traumatic brain injury, the expired card, the outstanding warrant from Alabama. The officers told him not to worry; Alabama would never extradite him over a little marijuana. It would be OK.

But when they called to make sure, Alabama said it wanted to bring Sean back to Pickens County. When the Arizona police told him, he ran. He fell. He was taken to jail, and eventually, he was transported to Pickens County at a cost to the state of Alabama of $4,345. The state moved to make Sean pay that money himself, on top of the $3,833.40 he already owed in fines, fees, and court costs.

“I feel like I’m being thrown away by a country I went and served for.”

Sean has been in the Pickens County jail since early 2020. On April 28, the judge revoked his probation and sentenced him to 60 months in the custody of the Alabama Department of Corrections. 

Over the last three years, there have been robust efforts in the Alabama legislature to modify the state’s marijuana laws. A bill legalizing medical marijuana under controlled conditions passed the full Senate this year before the session ended due to Covid-19. A bill reclassifying possession of two ounces or less as a civil offense passed out of the Senate Judiciary Committee in 2019. Reforms that could have created a vastly different outcome for Sean Worsley are on the horizon.

At the same time, lawmakers who support changes to the law undermine their urgency by insisting that marijuana possession does not land people in prison. Sen. Cam Ward, chair of the Senate Judiciary Committee, told a reporter in 2018, “The only people in state prisons on possession of any kind of marijuana are those trafficking the truckloads of it.”  

Them, and disabled Black veterans playing air guitar at the wrong time while passing through Alabama.

Sean’s mother hired an attorney to appeal the case, and that process has begun. But sometime in the next several weeks, Sean will almost certainly go to prison. His transport there will be delayed due to Covid-19, which has sickened prisoners at several facilities and killed at least five. He’ll be quarantined for a couple of weeks at Draper Correctional Facility, which was condemned as unsafe and unsanitary for occupation, then refurbished for Covid-19 quarantines this year. Assuming he’s well, Sean will then be released to whichever prison has space for him. 

Alabama’s entire prison system for men was found by the U.S. Department of Justice to be in violation of the Eighth Amendment prohibition on cruel and unusual punishment. A U.S. District Judge has deemed its mental health services “horrendously inadequate.” It is almost certain Sean’s mental health will decline further in prison. The Alabama Department of Corrections, which has the highest homicide rate in the country, cannot keep him safe. 

Eboni in the hospital for heart surgery

He’ll leave behind two children from a prior relationship, ages 12 and 14, who according to Eboni have already struggled with his absence. He’ll leave behind Eboni, who is due to have another major surgery without her husband and best friend by her side. 

In a letter to Alabama Appleseed from the Pickens County jail, Sean expressed despair at being away from his children and from Eboni. He feels humiliated at having to call them from jail, crushed that he is, as he put it, “letting them down” over an arrest stemming from efforts he was making to keep himself healthy. “I feel like I’m being thrown away by a country I went and served for,” he wrote. “I feel like I lost parts of me in Iraq, parts of my spirit and soul that I can’t ever get back.”

Ellis English, Sean’s friend and former supervisor — another Black veteran who has himself been pulled over more times than he can count — feels the same way. “You go over there. You come home messed up. Then you still get targeted” by police, English said. “That’s what hurts the most.”

 

By Leah Nelson, Appleseed Research Director

As Alabama struggles to contain Covid-19, the illness caused by the novel coronavirus that has gripped the world’s attention since January, law enforcement officials and judges across the state have taken bold steps to prioritize public health over punishment by slowing arrests for low-level offenses and releasing from jails individuals who are not a danger to the community.

The results have been extraordinary. Between January and late April, at least 13 counties shrank their jail populations by more than a quarter, according to the Prison Policy Initiative. Baldwin and Houston counties, both notorious for their tough-on-crime conservatism, each reduced their jail population by about a third. Alabama’s largest county, Jefferson, with a jail capacity of 1,200, dropped its population below 650.

These counties’ decisive action has likely saved lives. Nationally, prisons and jails have been hotspots for the virus’ spread. That’s certainly true in Tuscaloosa, which on May 21 acknowledged that 21 inmates and one employee at its jail had tested positive for the virus, even as the city overall saw a 35% increase in the number of cases.

Yet instead of responding by releasing low-level offenders from what could easily become a literal death trap, Tuscaloosa’s police chief has announced plans to round up and jail more people.              Though crime is down in the city, Chief Brent Blankley – who since his appointment in February has overseen roundups of low-level offenders including 116 misdemeanor arrests – announced  this week about a plan to “take our streets back.”

Among other things, he plans to increase traffic stops by buying tint meters. In Tuscaloosa, the crime of “Improper Window Tint” carries a penalty of $182. It also gives police an excuse to pull people over, often leading to additional financial penalties, vehicle searches, arrest, and incarceration for things such as unpaid traffic tickets or marijuana possession.

Blankley’s plan, dubbed “Operation Safe Streets,” is being rolled out as Tuscaloosa’s streets are stalked by a silent, invisible killer that has disproportionately haunted black lives in Alabama and across the country. Although Alabama’s population is about 27% black, 42% of confirmed cases of Covid-19 are within the black population, according to the Alabama Department of Public Health.

“Operation Safe Streets” also rolls out amid breathtaking reminders that black lives are also disproportionately taken by police and vigilante violence. Tuscaloosa has a history of racially biased  police practices. In 2016, the most recent year for which data is available, black residents were 4.1 times as likely as white residents to be arrested for possession of marijuana. This, in a college town; this, amid robust and longstanding evidence that white and black people use marijuana, and therefore possess it, at roughly the same rates.

In an America on edge – and in some places on fire – in response to the death in police custody of a Minneapolis man named George Floyd who told the police officer whose knee rested on his neck, “I can’t breathe,” Tuscaloosa’s police chief has decided the best use of public resources is tint meters that will in all likelihood be used to pull over, cite, arrest, and incarcerate black bodies in a jail that is riddled with a disease that has disproportionately sickened and killed them.

      Tuscaloosa should think hard about what kind of city it wants to be. Right now, it is the kind of city that brags of a plan to funnel residents with windows it deems too dark into a jail unable to protect them from a deadly pathogen. This plan endangers the lives of the people who are arrested, the police who take them into custody, jail employees, and the families and communities they return to.

Operation Safe Streets will put the people of Tuscaloosa in harm’s way. At a time when safe jails are out of reach, it is unconscionable.

By Leah Nelson, Appleseed Research Director

MONTGOMERY, Ala. — When police pulled Reunca Lewis over near downtown Montgomery on April 17, the 23-year-old Montgomery resident was baffled. Lewis’s car had been stolen and then involved in a hit-and-run, and she had spent most of the day with police downtown, dealing with the aftermath. Now, the police officer who pulled her over was asking why her new vehicle didn’t have tags.

She showed him her registration and proof of insurance and explained she couldn’t get tags because the office that issues them is closed due to Covid-19. The officer issued a warning, then excused himself and called dispatch.

Suddenly, three more police vehicles swarmed up and parked behind her car. The officer re-approached, told her to exit the vehicle, and arrested her for having outstanding warrants because she had missed a March hearing regarding unpaid traffic tickets. Lewis’ sister-in-law, 20, who happened to be in the car with her, was arrested for the same reason. In the back of the car, Lewis’s six-year-old son wept in fear while Lewis’ mother rushed across town to pick up the car and take the child home. 

Lewis, who has three other children at home including medically fragile 11-month-old twins, wept too.

The officer took Lewis and her sister-in-law to Montgomery City Jail, where they spent three nights locked in a tiny cell with two other women, one of whom was coughing and begging for medical attention.

All of the women were terrified. One was there in connection with an altercation with a neighbor, but, said Lewis, the majority of them there in connection with unpaid traffic tickets.

On a normal Friday, that wouldn’t be surprising. Like all municipal jails in Alabama, Montgomery’s city jail holds people arrested for allegedly violating municipal ordinances or committing misdemeanors. Many people are held in jail after missing hearings in connection with unpaid traffic tickets – Lewis herself has spent time there twice before in connection with tickets she did not have money to pay. Most of the time, the city jail also holds a few dozen individuals awaiting trial in federal court, as well as a handful of people serving sentence of less than a year.

But Friday, April 17 was not a normal Friday. On that Friday, cases of Covid-19, the potentially fatal illness caused by the novel coronavirus, were spiking across the state of Alabama. With less than one percent of the population tested statewide, there were already 206 cases in Montgomery County alone, according to data published by the Alabama Department of Public Health. That same day, the Alabama Department of Corrections announced for the first time that Covid-19 was spreading through its inmate population, with three positive tests at two different facilities. And weeks earlier, the governor had granted municipalities like Montgomery permission to issue summonses instead of arresting people who, like Lewis and her sister-in-law, were accused of nonviolent offenses. According to the proclamation, the reason for this extraordinary action was “[b]ecause the conditions of jails inherently heighten the possibility of COVID-19 transmission.”

Despite these known risks, Lewis and her sister in law were taken to jail. There, she said, none of the women she was with had personal protective equipment like gloves or face masks. There was no hand sanitizer or hot water. The inmates who gave her her jumper, mat, and other supplies when she was booked were without supplies, as were the inmates who worked in the kitchen. She reports that officers checked inmates’ temperatures before booking them in, but that while she was there, a male inmate arrived with a fever and was booked in anyway. Corrections officers made some effort to separate new arrivals from inmates who had been in for a while, but took no meaningful steps to protect the new arrivals from each other, Lewis reported.

When Lewis finally got before a municipal judge on Monday via videoconference, he told her a new date would be set, but declined to provide her with a clearance letter to get her license back after it was suspended for failing to appear in court. Until it is returned to her, Lewis, who is at heightened risk of being pulled over until state offices reopen and she is able to get a tag for her vehicle, risks being ticketed again for driving with a suspended license.

As an African-American woman, she is also at heightened risk of contracting Covid-19: In Alabama, nearly 58 percent of cases have been women and nearly 38 percent have been African American, even though the population overall is about 50 percent female and 27 percent African American.

Lewis is aware of these risks, and she is terrified. “Are our lives or tickets more important to them? Like, this is a fatal virus,” she said. “People are dying. They had us in there for tickets.”

Update: This post was updated on April 30, 2020 to reflect new facts provided by the City of Montgomery regarding the date of the hearing Ms. Lewis missed.

 

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

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

By Leah Nelson, Appleseed Researcher

WOODLAND, Ala. (March 30, 2019) Teresa Almond is terrified. Though more than 13 months have passed since the day the Randolph County Drug Task Force upended her life with a flashbang grenade and a raid on her home, the 49-year-old grandmother still spends at least part of most days sitting beneath the shelter of a relative’s carport, clutching a firearm and waiting fearfully for the deputies to come back.

Across the street is the house where she and her husband Greg Almond raised their children, where they celebrated holidays and birthdays and weekends with grandchildren, from 1991 until January 31, 2018. That day, after a sheriff’s deputy said he smelled marijuana at the house, the drug task force broke down the Almonds’ door, detonated a flashbang grenade, forced the couple to the floor at gunpoint, and tore through the house.

The task force found about $50 worth of marijuana and a single pill of Lunesta, a prescription sleep aid, that was outside of the bottle bearing Greg’s name and showing it was his prescription.

On this pretext, task force members handcuffed the Almonds and booked them into the Randolph County jail. They were charged with possession of marijuana in the second degree, a misdemeanor, and with felony possession of a controlled substance because the Lunesta pill was not in its original packaging.

Greg’s family watched from their home across the street as officers remained at the house till past dark that night, carting out tens of thousands of dollars’ worth of belongings: Greg’s sizable gun collection, a chainsaw, a weed eater, antique guitars, a coin collection, Teresa’s wedding rings, and about $8,000 in cash the Almonds kept in safes in the back of the house. The doors were left unsecured; the Almonds’ dog escaped. Greg and Teresa, neither of whom had ever been arrested before, spent the night in jail.

Drug task forces undertake raids like this one with some frequency in Alabama. They are joint operations of county, municipal, state, and sometimes federal law enforcement agencies. They often work off tips from confidential informants and seek to surprise drug manufacturers and shut down illegal activity. Sometimes, they take property and assets as evidence.

They are also permitted to seize items under a process called civil asset forfeiture, which enables the state to take and keep cash, vehicles, valuables, and even real property if they are able to prove to the “reasonable satisfaction” of a judge that it is the fruit of, or was used to facilitate, illegal activity.

Civil asset forfeiture can be enormously profitable for the state. Historically, Alabama has not tracked or made public income from forfeitures, though this will change if prosecutors follow through on a recent promise to create a public database. But in 2018, the Alabama Appleseed Center for Law and Justice and the Southern Poverty Law Center examined about 70 percent of civil asset forfeiture cases filed in 2015, in a first-of-its-kind effort to quantify the results of this practice. The resulting report showed that Alabama raked in nearly $2.2 million in 827 disposed cases in 2015. That same year, courts awarded law enforcement agencies 406 weapons, 119 vehicles, 95 electronic items and 274 miscellaneous items, including gambling devices, digital scales, power tools, houses, and mobile homes.

Greg Almond looks over the remains of his home after the raid.

In 18 percent of 2015 cases where criminal charges were filed, the charge was simple possession of marijuana and/or paraphernalia, crimes that by definition do not enrich the people who commit them. Possession of marijuana in the second degree was the only charge against the Almonds that stuck after a grand jury rejected the notion that possession of Lunesta for which Greg had a valid prescription constituted a felony.

The Almonds say their adult son, who was living with them at the time, told law enforcement that the marijuana was his and that his parents did not know it was in the house. But the prosecutor declined to drop the charges. The Almonds expect to go to trial in Randolph County Circuit Court soon.

In the meantime, they have filed a federal lawsuit alleging civil rights violations by the county, the county commission, and several sheriff’s deputies. Among other things, the suit alleges that the sheriff did not even follow proper procedure for undertaking a civil asset forfeiture. Under current law, the state must file a civil suit and make a showing that there is a meaningful connection between the assets seized and criminal activity, and a judge must agree that that is so. But according to the Almonds’ lawsuit, Randolph County law enforcement never filed such a suit. They simply kept the Almonds’ things, depositing the cash they’d taken into the general fund of the Randolph County Commission. The suit also alleges the task force failed to correctly log many of the items they took, including about half the cash, half the guns, and other items and valuables. The task force simply took them. And now the Almonds have nothing.

Todd Brown, an attorney representing the county, the county commission, and all but two of the individuals named as defendants, declined to comment, citing ongoing litigation.

From the Almonds’ perspective, the task force’s timing could not have been worse. At the time, the Almonds’ primary source of income was Almond Memorial Monument Company, a family-owned tombstone-engraving business that Greg inherited from his father and operated with their son. To save for retirement, the Almonds also operated chicken houses, feeding and sheltering birds until they were ready for slaughter and processing. Teresa sometimes cleaned houses to earn extra money as well.

In 2017, the poultry producer with whom the Almonds were contracting told them they could not house any more birds until they made some changes to their chicken houses. Money was tight that year, as Greg sought to earn extra from his monument business to re-invest in the chicken houses. The Almonds lived on land that had been in Greg’s family since 1901, but had mortgaged a portion of their property, including their house, to start up the chicken farm. They were due to sign paperwork restructuring their loans on Feb. 1, 2018, at 10 A.M.

They missed that deadline because they were in jail. The night the Almonds were locked up, Greg’s sister was 30 miles away staying with their mother, who had been hospitalized. She bonded Greg and Teresa out the next day, and they rushed to the bank. They got there too late, and once the deadline passed, the opportunity to restructure fell through. They lost their house, and much of Greg’s family land.

The raid and the loss of the $8,000 had an outsize effect on the Almonds’ financial circumstances.  It interrupted the careful flow of resources that kept their small business afloat and undermined their options for renewed consideration for loan restructuring after they missed the bank deadline because they were in jail.

The raid had other repercussions. The Almonds’ arrest was big news in their rural community, where lawns are punctuated by “Back the Blue” signs indicating residents’ support for law enforcement. When the Almonds went to jail, rumors started that they operated a meth lab, that they were drug dealers or manufacturers or worse. Greg’s mugshot appeared on the sheriff’s Facebook page. People whispered, and business dwindled. Greg’s reputation as a businessman, carefully cultivated over decades and attested to in older posts on the Almond Monument Memorials Facebook page, evaporated.

Greg, who between the monument business and chicken houses used to work 16-hour days, found work as a handyman. His boss treats him well, but he is lucky if he brings home $95 a day. “If somebody came up to me right now and said, ‘Here, here’s $15,000, so you can start your business back up,’ I couldn’t because my shop is full of our furniture. That’s the only place I had to put it,” he said. “I’m in worse shape than when I was 17 years old because at that point, I didn’t have bad credit, I just didn’t really have no credit. Now with this, I have poor credit, and I might have a little more than I did when I was 17, but not much. And now at 50, I have bad knees, I can’t get out there and get it like I used to.”

Greg stayed in their house until the bank forced him out. Teresa came back once, saw the piles of toys and Christmas decorations and mason jars of home-canned vegetables the task force had strewn around her home, and never returned. Since May 2018, the closest thing the Almonds have had to a home is a storage shed the size of a vacation camper-trailer that they previously used to store catfish feed and fishing rods. 

Christmas gifts and toys left behind after the task force raid

Greg insulated the shed, but the Almonds have no running water or indoor plumbing. They cook over an open fire outside their front door and keep food cool in a portable cooler. A small solar panel provides enough electricity to power their television and a floor lamp at night, but they do not have enough power to run an air conditioner. For Christmas, Greg’s boss gave them a wood-burning stove to supplement the propane heater they had been using. Some mornings, Greg wakes up to indoor temperatures in the low 50s.

Teresa, who is restless and fearful and speaks so quietly it’s hard to hear her at times, rarely stays in the shed. “I’m not right. I have not been right since the day it happened,” she said.

“That was my home. I raised all my babies in there. And my grandbabies. If my grandbabies would have been there that day, they would have hurt my grandbabies,” she continued. “I have nowhere to bring my babies to spend time with them. Cause this is not a atmosphere that I want my grandbabies in, and them remembering that we lived in a shack because of cops.”

Greg Almond, a Randolph County man who owned an engraving business, chicken houses, and several acres of land, before law enforcement raided his home and seized tens of thousands of dollars in property, discusses his family’s plight.

Across Alabama, residents lose their jobs, housing, drivers’ licenses, and spend long stretches in jail because they cannot afford to pay court fines and fees. This week, a unanimous United States Supreme Court reminded states that this is not supposed to happen anywhere in America.

The case, Timbs v. Indiana, concerns the questionable practice of civil asset forfeiture, where law enforcement is permitted to seize property of people merely suspected of criminal activity. But the Court devotes the bulk of its opinion to providing states a refresher on the Excessive Fines Clause of the Eighth Amendment, reaching back to the Magna Carta and recalling Southern States’ Black Codes. Fines get special attention because they have been wrongly used to raise revenue, punish political enemies, and subjugate African Americans, in a way that conflicts with “the penal goals of retribution and deterrence.”

Alabama Appleseed has documented how thousands of Alabamians are trapped in cycles of debt, incarceration, and grinding poverty because they cannot afford to pay fines, fees, and court costs assessed against them or their families. A survey conducted last year found that court debt drove over 80% of survey takers to give up basic necessities, that over 50% had been jailed for being unable to pay what they owed, and that about 40% had committed crimes like stealing or selling drugs to pay court debt for non-felony offenses. The majority believed they’d never be able to pay everything they owed.

Terrence Truitt spent eight days in jail because he couldn’t afford to pay fines from fishing without permission, which he did to feed himself and his children. Terry Knowles lived in a tiny motel room with his extended family so he could be close enough to work to walk because he could not afford the fee to reinstate his license.

Callie Johnson missed payments on basic necessities because she was helping her children pay their court debt. Angela Dabney, a single mother, lost her driver’s license because she couldn’t afford to pay traffic tickets – and because she lost her license, she lost her job.

If there was ever any doubt, this week’s unanimous opinion makes clear that the kind of suffering imposed on these Alabama families runs afoul of the Constitution and must stop. At a minimum, fines should “be proportioned to the wrong” and “not be so large as to deprive an offender (of his) livelihood,” the opinion states.

Also at issue in the Timbs case was civil forfeiture. Alabama law enforcement officials have claimed that state laws protect citizens from the kinds of abuses documented in Timbs.

Not necessarily. As Alabama Appleseed and the Southern Poverty Law Center reported last year, Alabama’s abusive civil asset forfeiture scheme, which allows the state to take money and property from people without even accusing them of a crime, enriches law enforcement agencies and disproportionately harms people of color. Civil asset forfeiture is an unjust process that deprives people of property without due process, and it should be abolished.

In its ruling, the high court stated that the constitutional provision which forbids excessive fines applies to states in civil as well as criminal cases when the resulting forfeitures are at least partially punitive. In essence, it found that Indiana’s seizure of a man’s Range Rover was unconstitutional because $42,000 was a radically disproportionate fine for the sale of $400 worth of heroin.

Here in Alabama, police more often seize rent money, not Range Rovers. Our study found that the amount of cash seized in civil forfeiture cases involved $1,372 or less in half of all cases examined. The legal fees to get it back are usually more, so most property owners never attempt to get their property back — even where they were not convicted of wrongdoing in connection with the seized property. That should give us all pause.

The fines levied against Terrence Truitt, Angela Dabney, Terry Knowles, Callie Johnson, and the other individuals who took Appleseed’s survey were on average far lower than $42,000, but their consequences were no less devastating. Because they had no way of paying what the state demanded of them, people who took this survey gave up food, shelter, and medicine. They went to jail.

An orderly society requires that violations carry consequences, and it is not Appleseed’s contention that individuals who break the law be permitted to “get away with it” simply because they are poor. But excessive fines are in the eye of the beholder, and Appleseed’s research makes clear that fines that would be manageable for some are devastating for others.

No one should lose their driver’s license, and with it, their ability to work, because they cannot afford to pay a ticket, fees, and interest for a busted headlight. No one should be jailed, or homeless, or give up medicine, or feel forced to accept charity or commit a felony, because they were too poor to pay their court debt. Alabama can fix this, by ending the practice of revoking licenses for unpaid traffic debt, and by evaluating individuals’ financial circumstances and scaling fines to their ability to pay.

Excessive fines are alive and well in Alabama, and they are destroying lives. As nine Supreme Court justices agreed this week — It’s time for a change.

Read it on AL.com

by Leah Nelson, researcher and Dana Sweeney, organizer

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

Actual borrowers might beg to differ.

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

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

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

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

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

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

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

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

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

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

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

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

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

by Leah Nelson, Researcher 

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

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

Fast forward to today in Alabama.

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

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

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

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

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

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

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

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

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

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

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

by Leah Nelson, Alabama Appleseed Researcher

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

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

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

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

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

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

But it was also everything.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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