Issue: Criminal Justice

The Alabama House and Senate soon could vote on a plan to shorten the appeals process for people convicted of capital murder in the state. Judiciary Committee members in both the House and Senate approved the legislation Wednesday.

The House panel voted 9-6 for HB 216, sponsored by Rep. Lynn Greer, R-Rogersville. Earlier, the Senate committee voted 7-1 for SB 194, sponsored by Sen. Bill Holtzclaw, R-Madison. The bills are identical.

Direct and collateral appeals would run concurrently in death penalty cases in Alabama under HB 216 and SB 194, labeled the “Fair Justice Act,” thus shortening the appeals process in capital cases. The bills also would require the state to provide lawyers for both sets of appeals if defendants are too poor to pay for their own representation.

The plan would accelerate the pace of post-conviction appeals known as Rule 32 appeals. Those collateral appeals, which examine claims such as ineffective assistance of counsel, now occur after the completion of direct appeals that consider issues such as sufficiency of evidence. Under the plan, defendants would have to file Rule 32 petitions within 180 days of filing their first direct appeal.

‘We ought to be able to do better’

HB 216 and SB 194 prompted intense debate among lawmakers Wednesday over whether a faster appeals timetable could increase the chances that an innocent person might be put to death. Supporters of the bills said they would protect defendants’ rights while reducing long delays in carrying out executions.

“We’re looking at the average appeal process is 16 years and climbing,” Holtzclaw said. “We can’t lose sight of the fact that these people were convicted by a jury of their peers.”

Recent advances in DNA testing and other technology have reduced the likelihood that a person will wrongly end up on death row, Madison County District Attorney Rob Broussard told House committee members. Of the roughly 1,500 people sentenced to death nationwide since 2000, Broussard said, only four have been exonerated. “The notion that there are a lot of innocent people on death row, I take exception to that,” he said.

Broussard said appeals are still being heard in some Alabama capital cases that were prosecuted more than 15 years ago. He said that lengthy process is unfair to victims’ families, who sometimes have to wait decades before the person convicted of murdering their loved one is executed. “The system we have in place is being abused,” Broussard said. “We ought to be able to do better.”

‘Sometimes we do get it wrong’

Rep. Chris England, D-Tuscaloosa, was highly critical of the proposal, saying it would reduce the amount of time that a defendant’s lawyers have to unearth potential errors. “Sometimes we do get it wrong,” England said. “And sometimes this time has saved people.”

Rep. Mike Jones, R-Andalusia, was among several lawmakers who urged members to take more time to study HB 216. Jones said he supports the death penalty but would like to know more about how average appeal times now would compare to those under the proposed system. “My concern is whether we’re moving too fast,” Jones said. “This is not a simple thing to read through and piece together.”

Sen. Vivian Figures, D-Mobile, said the issue was simple for her, because she opposes the death penalty entirely. “Thou shalt not kill, and two wrongs don’t make a right,” Figures said. Figures was the only Senate committee member to vote against SB 194 on Wednesday.

Alabama lawmakers should be careful to ensure fairness for low-income and marginalized people as they consider reforms of the death penalty system, Bishop David Foley told House committee members. Foley, bishop emeritus of the Birmingham Diocese of the Roman Catholic Church, said innocent people are not the only ones who need extra time. People who are guilty of murder also need time to seek forgiveness and reconciliation, he said.

“In God’s eyes, life is sacred, not just for the innocent but for the guilty,” Foley said. “Only the cross of forgiveness and the final justice of God will truly bring the scales into balance.”

Two other death penalty bills approved; one delayed

Lawmakers signed off Wednesday on two other proposals related to the death penalty. Both House and Senate committees backed bills – HB 218, sponsored by Greer, and SB 193, sponsored by Holtzclaw – to add to the list of offenses defined as capital crimes. For example, the legislation would allow the state to seek the death penalty for any murder committed in a day care or on a school campus.

The House panel also voted 10-5 to approve a bill – HB 219, sponsored by Greer – that would require an attorney or a party in a death penalty case, or anyone acting on their behalf, to obtain a judge’s permission before contacting jurors after the case. Gathering information from jurors is a technique that many defense attorneys use in determining whether there was any improper behavior during trials.

Jones said judges already instruct jurors that they are not required to talk to attorneys after the case. Jones acknowledged concerns that some people might harass jurors or misrepresent themselves, but he suggested an amendment to the state’s jury tampering law would be a better way to address the matter.

The House committee delayed a vote on a bill that would prohibit capital defense attorneys from contacting a victim’s immediate family members before notifying the prosecutor. HB 217, sponsored by Greer, would allow the prosecutor either to agree to the request or ask the court to forbid the contact.

Committee members raised several concerns about the proposal. England said the bill could create appellate issues by limiting access to material witnesses and giving the prosecutor “an inherent advantage over the defense.” Rep. David Standridge, R-Hayden, said the measure needs a clearer definition of “immediate family member.” The committee postponed a vote on the bill but could reconsider it in coming weeks.

Lawmakers will return Thursday for the sixth day of the 2014 regular session, which is expected to last until early April.

By Chris Sanders, communications director. Policy analyst Stephen Stetson contributed to this report. Posted Jan. 22, 2014.

A bill that would significantly ease the financial burden on low-income Alabamians accused of municipal violations won unanimous Senate committee approval Wednesday. SB 31, sponsored by Sen. Greg Albritton, R-Atmore, would be a major step forward on criminal justice debt reform, which Arise members chose as one of our 2018 issue priorities. The bill cleared the Senate Judiciary Committee 10-0 and awaits a Senate vote.

Under current state law, municipal judges can jail people for many minor violations and misdemeanors pending trial unless they can afford a bond, which may cost hundreds of dollars. When the judges impose bonds, they are not required to ask if defendants are financially able to pay the bond that would allow them to leave jail and go home.

SB 31 would help reduce crowding at municipal jails across Alabama by removing cash bail requirements for people accused of many violations and misdemeanors when those people have not shown a reason to believe that they are a risk to public safety or that they will not show up for court. The bill would not change bond requirements for crimes related to domestic violence or drunken driving.

Many Alabamians live paycheck to paycheck and do not have hundreds of dollars available to spend on a bail bond. This bill would help protect families’ financial well-being by allowing low-income workers not to risk losing their jobs because they cannot bond out of jail after being charged with a minor offense. The measure also would save money for cities, which no longer would have to pay to house and feed people accused of minor crimes until their trials.

By Dev Wakeley, policy analyst. Posted Jan. 10, 2018.

UPDATE: Gov. Kay Ivey signed SB 16 into law on April 11, 2017, ending judicial override in all future capital cases in Alabama.

The age of judicial override in the United States is about to come to an end. The Alabama House voted 78-19 Tuesday to end the practice, which allows judges to override juries’ sentencing recommendations in death penalty cases. Alabama is the last state in the country to allow judicial override in capital cases.

SB 16, sponsored by Sen. Dick Brewbaker, R-Pike Road, now goes to Gov. Robert Bentley for his consideration. Bentley is “looking forward to signing this bill,” he said in a statement. The state Senate already passed the bill 30-1 in February.

“Judicial override is about to become a thing of the past, and Alabama’s justice system will be better as a result,” Arise executive director Kimble Forrister said. “It’s time for our state to put the sentencing decisions in death penalty cases where they belong: in the jury’s hands. We’re happy to see such strong support in the House and Senate for ending this outdated practice, and we hope the governor will sign it into law quickly.”

Judicial override regularly has been used to impose death sentences in Alabama despite a jury’s sentencing recommendation of life in prison without the possibility of parole. Alabama judges used judicial override 112 times between 1978 and early 2016, according to the Equal Justice Initiative. In 101 (or 90.2 percent) of those instances, override was used to impose a death sentence despite a jury’s recommendation of life without parole. (Read Arise’s fact sheet to learn more about judicial override.)

Judicial override ban does not apply retroactively

Rep. Chris England, D-Tuscaloosa, the House sponsor of legislation to end judicial override, said the decision of whether to sentence someone convicted of a capital crime to death was a weighty moral question that should be entrusted to a jury of one’s peers rather than a judge. “A law degree does not make you more qualified to decide whether to sentence someone to life or death,” England said.

The House vote came after England agreed to amendments that made his judicial override bill (HB 32) match Brewbaker’s version. England then substituted SB 16 for his own bill, allowing the House to vote on the measure and send it directly to Bentley.

SB 16 explicitly states that it would not apply retroactively to defendants sentenced to death before the bill’s passage. It also would preserve current Alabama law allowing juries to recommend death if 10 of 12 jurors agree. England’s original bill would have required a unanimous jury vote to impose the death penalty, but he accepted the changes to win support for ending judicial override.

The era of judicial override in Alabama death penalty cases came one step closer to an end Wednesday, when the House Judiciary Committee approved a bill that would end the unusual practice. SB 16, sponsored by Sen. Dick Brewbaker, R-Pike Road, now awaits consideration by the full House. The Senate passed the bill 30-1 last month.

Wednesday’s vote was the second time that the House committee approved a measure to end Alabama’s practice of allowing judges to override juries’ sentencing recommendations in death penalty cases. The committee voted 10-2 last month to approve a similar House bill: HB 32, sponsored by Rep. Chris England, D-Tuscaloosa.

Alabama is the only state in the country that allows judicial override in capital cases. The practice regularly is used to impose death sentences despite a jury’s sentencing recommendation of life in prison without the possibility of parole. (Read Arise’s fact sheet to learn more about judicial override.)

Alabama judges used judicial override 112 times between 1978 and early 2016, according to the Equal Justice Initiative. In 101 (or 90.2 percent) of those instances, override was used to impose a death sentence despite a jury’s recommendation of life without parole.

The House and Senate bills are largely identical, with two major exceptions. Brewbaker’s bill explicitly states that it would not apply retroactively to defendants sentenced to death before the bill’s passage. It also would preserve current Alabama law allowing juries to recommend death if 10 of 12 jurors agree. England’s bill would require a unanimous jury vote to impose the death penalty.

England said Wednesday that he is willing to accept the changes in the Senate version. His ultimate goal with the legislation, he said, is to end judicial override.

The movement to end judicial override in Alabama has won two big victories in the first two weeks of the Legislature’s 2017 regular session. The House Judiciary Committee voted 10-2 Wednesday to approve a bill to end Alabama’s practice of allowing judges to override juries’ sentencing recommendations in death penalty cases. The Senate Judiciary Committee voted 5-3 last week to advance a similar bill.

The bills – HB 32, sponsored by Rep. Chris England, D-Tuscaloosa, and SB 16, sponsored by Sen. Dick Brewbaker, R-Pike Road – now await consideration by the full House and Senate.

Alabama is the only state in the country that allows judicial override in capital cases. The practice regularly is used to impose death sentences despite a jury’s sentencing recommendation of life in prison without the possibility of parole. Alabama judges used judicial override 112 times between 1978 and early 2016, according to the Equal Justice Initiative. In 101 (or 90.2 percent) of those instances, override was used to impose a death sentence despite a jury’s recommendation of life without parole.

Bills differ on whether to require unanimity

The House and Senate bills are largely identical, with one major exception: England’s bill also would require a unanimous jury vote to impose the death penalty. Current Alabama law allows juries to recommend death if 10 of 12 jurors agree. House committee members Wednesday rejected an attempt to remove that provision from England’s bill.

Arise policy analyst Stephen Stetson testified last week in favor of ending judicial override and requiring unanimity for juries to impose a death sentence. “Members of a jury can reach the best result,” Stetson told senators.