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October 2, 2013

Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)

ALSealWhile October 1, 2013 was an eventful day around the nation with the roll-out of the new federal health care law and the partial federal government shut down.  But in Alabama, the start of October 2013 was also a big deal because it was the effective date for the application of new sentencing reforms.  And, in sharp contrast to the federal sentencing system where applicable guidelines are distinctly harsh and draw the ire mostly of defense attorneys, under Alabama's new more lenient guidelines, it is the prosecutors who are complaining about judges having to follow presumptive sentencing rules.

This local article, headlined "More Alabama nonviolent offenders may avoid prison under law now in effect, DAs not happy," explains the new Alabama sentencing world and the concerns being expressed by prosecutors about having judges having to follow sentencing laws they disfavor:

Thieves, small-time drug dealers, repeat drug-users and other nonviolent offenders will find the world has changed beginning today, as Alabama tries to cope with its bursting-at-the-seams prison system by being more “selective” about who gets locked up.

Starting today new sentencing guidelines cover many nonviolent theft and drug charges. Burglary and drug trafficking charges are not on the list, but Alabama’s habitual offender laws that led to long sentences after two or more prior felonies will no longer automatically result in decades-long prison sentences for nonviolent offenders.

There are numerous changes, but the key differences are that judges in most cases are expected to use a worksheet to guide the decisions about “in or out of prison” and “how long a sentence.”

There have been complaints by prosecutors and some judges that the guidelines take the court’s discretion out of the system. The guidelines were developed beginning in 2000 and went into effect in 2006 as “voluntary.” But guideline use varied widely around the state, said Bennet Wright, executive director of the Alabama Sentencing Commission. In 2012, the Alabama Legislature agreed to make the guidelines “presumptive” meaning they would be applied unless compelling reasons were found to deviate from the guidelines.

Madison County District Attorney Rob Broussard said in a purely theoretical world, his office would oppose the new sentencing system. “But in the practical, budget-driven world, we understand why we have them,” Broussard said. “In this state, as in a lot of jurisdictions, we can about talk justice and what something is worth until we’re blue in the face, unfortunately it’s a money game. Do you have space to house criminals or not?”

Wright said prison costs and issues of fairness have driven the new process. “Alabama has the most overcrowded prison system in the country,” he said. “There is a very serious funding issue, coupled with an overcrowding issue and something has to be done. The state has to be increasingly more selective about which nonviolent offenders are sentenced to prison.”

Defendants facing similar charges across the state were not getting the same sentences, an issue that the Sentencing Commission has long been concerned about, Wright said. “The commission’s goal was to eliminate as much unwanted disparity as possible and create as much uniformity statewide as possible,” he said. “There has not been a lot of uniformity statewide amongst similar cases. You could have neighboring counties -- whether urban or rural, some in the same courthouse -- with judges using different practices. It was varied across the state, and a lot of people’s reactions have been, ‘That’s why it’s presumptive now.’ It’s an issue of fundamental fairness.”....

The Alabama District Attorneys Association has also been critical of the changes, arguing the rules will limit prosecutors’ ability to punish repeat offenders. St. Clair County District Attorney Richard Minor, president of the Alabama District Attorneys Association, said the association is working on proposed legislation for changes to the law.

Minor said the DA’s would like to see multiple charges in a drug distribution case be counted individually in the guidelines, rather than as one sentencing event which could lessen the likelihood of prison. Minor said he’s also concerned by what the worksheet requirements leave out.

“I think it’s hard to determine someone’s criminal behavior and their ability for rehabilitation, based on numbers on a sheet of paper,” Minor said. “I think a DA’s office and judge in the community have more information than can be put down on paper.”

I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms (unlike the federal guidelines which general push judges toward long prison terms) we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders. This provide for me still more proof that the severity of applicable rules is what really shapes the litigants perspectives as to whether sentencing guidelines should be presumptive or merely advisory.

For lots of reasons, and perhaps especially because Alabama's sentencing laws are evolving in kind of the reverse concerning how federal sentencing laws evolved over the last 25 years, I think sentencing reformers ought to be studying Alabama sentencing reforms past, present and future very closely. Helpfully, as the state starts a new sentencing reform chapter, the local papers have all this notable new coverage of developments:

October 2, 2013 at 09:20 AM | Permalink


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Is it any shock that people who enjoy inflicting pain on others are going to cry when their cattle prods are taken away?

Posted by: Daniel | Oct 2, 2013 4:45:44 PM

WHEN will all states and free citizens undersstand that prison should return a better person than what they take in????

The States should all review and make good changes to encourage not repeating the mistake they have been caught doing.

I am a Florida mom of a non-violent repeat drug offender inmate. Getting him off drugs was the need--not feeding and abusing him for the rest of his and my lives. "Can you believe the State amd the public would have him locked up for 20-30 years of his life that he could have already been out and being a productive tax paying citizen helping to pay to incarcarate the dangerious sex offenders,murderers and mass violent ones???

The people out here have been sold a bill of goods by the Dept. of Corrections and their excuses for sorry performance in correcting problems we face when these inmates do eventually get out.

Dept. of Corrections almost know the inmate will usually come BECAUSE No.1 it is fixed so that the inmate can hardly get a job to live---WHY NOT MAKE IT A CRIME for anyone TO DISCRIMINATE AGAINST AN INMATE WHO HAS SERVED THEIR TIME AND LET THEM START OVER. IF they mess up again, put them away for that mess up, not for what they have already paid for in the past.

Posted by: leverne hatcher | Oct 3, 2013 11:29:22 AM

Prof. Berman:: "I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms .. we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders."

This posture does appear hypocritical.

Posted by: Adamakis | Oct 4, 2013 1:19:01 PM

Student/Officer L.Calhoun
In all honesty, I DO NOT agree with the change. I am a Corrections Officer, HOWEVER, everyday I wake up for work, I wake up with the mind for change. I do not treat the inmates like trash I treat them with respect, I try to offer knowledge and wisdom, I try to help them find the want to enroll in classes, pick up trades. I do encourage them! This new sentencing however, is gong to brig about MORE nonviolent offender. Now people are not going to have the fear of "Prison" but the "I don't care" attitude because the State is basically saying to them, "We don't care rob people, just don't use a weapon and don't kill them and we wont send you to prison." Basically! Some people DO learn fro mistakes, weather they are big or small, but some people just have it in them and they know right from wrong but still do wrong. I am not a professional at this but I do work with these criminals, Murderers, sex offenders, thieves and more EVERYDAY, I know their ways, their thought process for the most part. I would love to not have to monitor a dorm of 70-150 inmates, BUT, I would also love to not hear, or watch on the tv or hear about someone getting robbed, killed, raped or ran off the road because of someone who was on drugs, or wanted money.

Posted by: Lariva Calhoun | Oct 27, 2013 9:50:09 PM

I have a daughter who was accursed of assault 2 on a police officers i was there and it did not happen but if we go to court they will believe the police over us because her witness are family but at least with this guideline it recommends non prison time as she has no priors of any kind not even as a youth,In this i feel like like the guidelines are fair there are to many people out their really hurting people so lets concentrate on them not someone who has never been in trouble

Posted by: gloria m | Nov 13, 2013 5:30:57 PM

To: L. Calhoun................ Thank you for writing that. I totally agree with you that continuing education and hope will get these boys through their trials and tribulations. The "I don't care" attitude does not promote good will or self confidence. They will live with this all their lives. I am a sister whose brother "on impulse" did the wrong thing at the wrong time without premeditation. I hope that they hire more people like you. Thank you.

Posted by: Lynn G | Nov 24, 2013 2:25:11 PM

How can the corrections officers in Alabama claim they want to see inmates help themselves, educate, and learn trades, when they are not even allowed to get books into jails where they sit waiting years to get into a prison, called a "CORRECTinal facility. Where is the correction, with no books allowed?

Posted by: karen Somers | Dec 30, 2013 11:26:18 AM

I have been raised around law enforcement all my life. I know how the system works from hearing 1st hand from the same people that enforce the laws you are talking about. When the prison system does interviews with inmates so they can produce a documentary (show) and the inmates confess the crimes they commit while they are in prison. Helps us understand why the rehabilitation rate is about 20% success rate. It is a piss pore excuse for the system to think just locking non-violent first time offenders up with hard core lowlifes that find prison as a vacation resort as a walk in the park almost as stupid as the DA's and prosecuting attorneys that want to take someone that was arrested with 3 pills to be charged with 3 felonies just so they can keep their numbers up and look like they are doing us a service is bull crap. Without the new sentencing guidelines, we just give the power to the people that more than not the opportunity to use the system for their own self gain. Usually it turns out to be political. Just look at a person that gets 3 year for a given offence in one courtroom, be it in the same are a different state. But for the same offence the other person gets two are three time the sentence for the same thing. You would be hard pressed convincing others that some ones personal agenda isn't in play. But then when a court appointed lawyer tells some one for xxx amount of money this will go away, but you don't have the money and end up with a devastating life changer because the lawyer is court appointed and not able to line his pockets like he is use to, then you just are unfortunate. But then again we see everyday that morals and values are things of the past. Money and self gain are the norm now it seams. There is always a personal agenda behind corruption. But then again money talks. Without it they have a cell for you. So please don't try and make it sound like you care about helping people when you are so quick to make a deal if money is there.

Posted by: Dennis | Jan 5, 2014 1:17:11 AM

My name is Hope I am a convicted felon. My thoughts on the new guide lines for Alabama are this. First of all I think if the people that are repeat offenders are offered some kind of help in resolving their problem instead of sending them to prison for the rest of their life, there would be a hole lot less people running out there and doing it again. In the county I live in your never offered rehab. I know people that are in prion for 20 years for pos. just because they are addicted to drugs. Maybe if they had some help getting off the drugs they may never do them again.Yes you will have those that will run right back to them but, there are a lot that really want to quit. You may say well why dont they quit, that's easier said than done. Do you think people really enjoy being helpless and tore down? We all want to be someone that can walk through town with our heads up and not have people pointing their fingers at us. I cant get a job. I use to vote every election and I use to be able to take my sons hunting. Now i cant as much as be near a gun. How does our government expect us to get a job or do class or whatever they sentence us to do if they take all of our rights away. They take your DL so we cant drive. So how do we get to work if we do have jobs and how do we go to these classes or go to see a probation officer if we cant drive. I live 35 miles to my probation office. Do they expect me to walk and how can i pay him if I have no job. I think if they would look at it from our side they could see its their fault people keep doing things. When you tie someones hands they are forced to use their feet. If you know what I mean by that. I'm not saying to let people by with everything but at the least dont tie their hands. I promise you this if they would have taken my DL for a driving offense that would be fine but I havent ever had any driving offenses ever.So when I look at it I think to myself how many of them would go to work if they didnt have DL. How would they like it if they lost everything because they had no way to get to work so they could get paid? I am a good person and yes I have done wrong in my life. My son was a passenger in a car and they wrecked, he was 17 years old and he died. The accident was just that an accident. But, when its your child it doesn't matter if it's an accident or not, because it's your child. I lost my mind and wanted to die. I got on drugs really bad and tried to do as many as i could hoping to die. Well thank God i didn't. But I did go to jail and my lawyer got me rehab. I still don't have my DL or a job. I try all the time to get one but no one wants to hire a felon. My probation officer says dont tell them. Well I was told in rehab that you shouldn't lie because if you do and get away with it then yes you get the job for now but when they find out nit only are you getting fired but you get labeled as a liar and a felon. What I'm saying is help us help ourselves. I worked 2 jobs most of my life sense I've been old enough to work. I picked peaches before i was old enough ton get a job anywhere else. Me and my uncles walked about 2 and a half miles to where we picked peaches. I was 11 or 12 years old. I live about 7 miles to any store of any kind. Am i suppose to walk to get food? How can I buy food with no job because I'm a felon that means no food stamps. Even if I could get them I dont want anyone else taking care of me. I have 4 children I raised alone with no child support and no help from anyone. They are grown now and doing well for themselves all of them are college graduates. So if they are doing that well how bad of a person could i be? I never gave anyone drugs or offered anyone drugs I was trying to kill my pain from losing a piece of my heart, and i got caught with drugs. So am I to be punished for the rest of my life. YES!!!! I'm just saying stop throwing us in a corner and thinking problem solved. Get us out of it and stop beating us down and give us a little bit of a chance to prove we want to have a real life and do better.

Posted by: Hope | Jan 23, 2014 5:17:53 AM


I am Pastor Gregory Johnson, SR. My son was convicted of captial murder because the shooting happened inside of a car. The DA charge him with captial murder times two, even though one person died. As you know the sentence for this was Life Without. However, in other places in the state this same type of case was given a lessor sentence. I am doing all that I can do to get Life Without off my son, who by the way was a first time offender. This happened while he was 19 years old....If you have any thoughts as to where I can turn please email me back.


Posted by: Gregory Johnson, SR. | Jun 26, 2014 9:33:38 PM

Hi, I work for the Federal Government but also I use to be a Correctional Officer. There is so much happening in the prisions, the inmates are not being rehabilitated, they live like animals and are treated worse, yes we have those who are not rehabilitative material but when the systems % of return is so high we need to look at the system. In order to rehabilitate theses men and women we must fix the system and once they served their time allow them to becomes productive citizens STOP HOLDING THEIR PAST AGAINST THEM.

Posted by: R. Stoves | Jul 13, 2014 6:55:09 PM

I am a disheartened sister. I have a brother who was in trouble and went to jail in his late teens. He served his time and got out. Later on a young lady who he used to date cried rape, that he had taken her to a muddy field on a rainy night and raped her. She said that he threw her on the ground. No rape kit was taken. The investigator interviewed the young lady and noted in his report that her clothes she said she was wearing when this happened were spotless. There was nothing he could see that corroborated rape. The judge gave him life without parole under the Habitual Offender Act. Later he got a letter from the public defender that basically said in most cases he knew people that were let go were guilty, but in my brother's case he was innocent. The judge would not allow him to present other facts that would have freed my brother. He has served more that 15 years for a crime he did not commit. We have gotten lawyers, but the lady of course would not admit that she lied. I believe lawyers in this area are afraid to get involved so my brother can be exonerated. He was wrongfully accused and convicted. Some people not all, in a lot of the prisons are corrupt. Unspeakable acts go on. The officers don't run the prison, the prisoners do. The prisoners are cheap labor for the state (you have to wonder when you see them picking up trash on the streets). So many homes are broken up because the men are in prison. Only one female prison in the state of Alabama. I just wish someone could stop the madness..

Posted by: Citizen | Aug 19, 2014 8:12:11 PM

Thank you in advance for taking the time to read this email.

Prison reform: While considering prison reform, I ask that you take into consideration what classifies an inmate as a "violent offender". There isn't much information about releasing any of those who are eligible. Also, there are several places I have read "We need to save our prison space for the most violent and dangerous offenders". In Alabama the law states that you are a violent offender even if you didn't personally commit the act of violence. While I do believe you should serve time for being present, should it be considered the same? When the Parole Board considers an inmate for Parole are there any documents that state the exact act the inmate committed?

Example: 5 young men in the car together and 1 of them decide to fire a weapon and murder someone.......all 5 are classified as murderers (violent offenders). 3 life sentences, one 20 year sentence and one 15 year sentence.

20 year old young man with NO prior criminal history, 17 years in DOC (currently serving) with NO violent disciplinary and has been denied parole twice because he is a "violent" offender. On paper it appears that way to the parole board, when in reality he made a bad choice of friends and was in the wrong place at the wrong time and couldn't/can't afford proper representation. In the case file it is not documented anywhere that he was only a passenger and did not commit the "violent offense". When the Parole board requested information from the clerk, they only requested the indictment. Attached is a screenshot of a newspaper article identifying the shooter. Mr. Robinson poses no threat to public safety, has never committed a violent act and doesn't go for parole (3rd time) until 2017.

These are the types of sentences that have our prisons overcrowded. Are there any thoughts on making changes to these type of laws?

In considering this reform I ask that you make an amendment to be retroactive for prisoners that are eligible for parole and a more accurate way of determining their status of "violent offender". Also, something placed on the Pardons and Parole website to guide families in the parole process and actions we may take to help prepare the inmate for parole.

Posted by: Ashley Heinrich | Aug 7, 2015 10:29:38 AM

Prison is nothing more than a front for what is really going on. The state of Florida at one time was talking about contracting out private security companies (such as GEO)for all state ran instutions. Now why would they want to do that i ask you? If I had to guess I would say that they either own or they are majority stockholders in these private contractors. Basically what I am saying is this, everytime they sentence someone to prison time they are essentially doing nothing more than laughing all the way to the bank. I can tell you one thing for certain, I did ten years in the Florida department of corrections and to give you an example of the money that is milked from the system. In prison every six months you have to do an laundry exchange and when you go to change you state issued uniforms, socks, underware, boots , pants...they for the most part do nothing more than switch worn out clothes for more worn out clothes and before you leave the laundry deptment they make you sign an inventory sheet that says that issued all new stuff with the price of the items listed beside them. How many times are they going to charge the tax payer for a pair of boots or socks ... That's only a small example of the screaming to defraud that our own government is doing to the tax payer and they call me a convict!!!

Posted by: Lisa C. Barker | Apr 21, 2017 5:31:31 AM

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