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In Legal Terms
- Fall Issue 2004
Habitual Felony Offender Act Ruled Constitutional
One of the many factors contributing to the jail and prison overcrowding problems in Alabama is our Habitual Felony Offender Act - the so-called "three strikes" law. (See, Code of Alabama 1975, § 13A-5-9). Under this popular statutory provision, certain repeat offenders are sentenced to life in prison without the possibility of parole. The law, originally passed in 1977, removes any discretion from the sentencing court to order a lesser sentence under special circumstances, and completely eliminates any possibility that the offender will ever be eligible for parole of his or her sentence.
Under the law as originally enacted, a person previously convicted of any three felonies would be sentenced to life imprisonment without possibility of parole when convicted of a Class A felony (the most serious class of crimes) on a fourth offense.1 The law provided no exceptions, and required this sentence even where the current conviction was his or her first for a Class A offense. The usual sentence for a Class A felony is life or 10-99 years, and generally allows for possible parole. Therefore, the habitual offender statute significantly increases the mandatory sentences of repeat offenders, and as a result, significantly contributes to the overcrowded population of our prisons and jails.
Although this law has always been strongly supported by victim rights groups and other "tough on crime" advocates, it has been the subject of much controversy because of the absolute mandates which eliminated any ability of the sentencing court to take into consideration the circumstances of the past convictions or the elements of the current crime. Furthermore, there was no room for early release based upon rehabilitation or other factors. In addition to these concerns, many groups - including the Association of County Commissions of Alabama - pointed to this law as one of the reasons for a dramatic increase in the population of Alabama's jails and prisons, and one of the obstacles to finding meaningful solutions to the overcrowding problems.
In 2000, the Speaker Pro Tem of the House of Representatives, Representative Demetrius Newton, successfully sponsored legislation to amend the habitual offender statute to alleviate, to some extent, the harshest provisions of this strongly-worded statute. This bill was on the ACCA's legislative program as priority legislation, and counties worked hard to help Representative Newton in his efforts to amend this law. Under Act No. 2000-759, where a person has three prior felony convictions and is convicted of a Class A felony, he or she can now be sentenced to life imprisonment, rather than life without possibility of parole, provided that none of the prior convictions had been for a Class A felony. If any prior convictions were for a Class A felony, the person must still be sentenced to life imprisonment without the possibility of parole. All other provisions of the original law were left unchanged.
Act No. 2000-759 specifically provided that it would have prospective application only, and could not be used to reduce the sentence of any prisoner currently serving a term imposed under the law as previously written. However, in 2001, Representative Newton introduced legislation to amend Act No. 2000-779 to provide for retroactive application of the new law for nonviolent offenders. Again, the ACCA staff worked hard on the counties' behalf for passage of this Act, which it viewed as crucial for the original changes in the habitual offender act to have any significant impact on the current prison overcrowding problem. Opposition to this bill was very strong and vocal, and only through the determined efforts of the Speaker Pro Tem and the ACCA was it passed by the Legislature and signed into law. Unfortunately, however, even once this law went into effect, the resistance to its provisions led to protracted delay in its implementation.
Act No. 2001-977 (now codified at Code of Alabama 1975, § 13A-5-9.1), which became effective on December 1, 2001, stated simply that the provisions of the previously enacted statute would be applied retroactively by the trial judge for early parole of non-violent convicted offenders based on evaluations performed by the Department of Corrections, approved by the Parole Board, and submitted to the court. On the same day he signed the statute into law - September 29, 2001 - then-Governor Don Siegelman issued Executive Order No. 62, calling for the Department of Corrections to develop guidelines for the implementation of the Act by June 2002. However, the Department of Corrections and the Board of Pardons and Paroles, with agreement from the attorney general's office, maintained that there were significant problems with the statute and never took any steps to implement the Act.
In November 2001 and again in September 2002, Junior Mack Kirby, who had been sentenced to life imprisonment under the original habitual offender statute, filed motions in the Jackson County Circuit Court to have his sentence reviewed under Act No. 2001-977. The case went through several procedural "hoops" in both the trial court and the Alabama Court of Criminal Appeals. The trial court ruled that the Act was unconstitutional and the Court of Criminal Appeals dismissed the original appeal on jurisdictional grounds. Eventually, the case was appealed to the Supreme Court of Alabama, which following the filing of briefs by both parties and oral argument, issued a unanimous ruling on August 27, 2004 that Act No. 2001-977 was constitutional and that "No basis exists for further delay of the retroactive application of the 2000 amendment to Section 13A-5-9 to allow trial courts to modify the sentences of those eligible inmates formerly sentenced under the [Habitual Felony Offender Act] before its amendment." Ex parte State of Alabama (In re: Junior Mack Kirby v. State of Alabama), 2004 Ala. LEXIS 214, August 27, 2004.2
While the State had agreed with Mr. Kirby that the trial court did have jurisdiction to consider his motion, it maintained through pleadings and arguments asserted by the office of then-attorney general Bill Pryor at both the trial court and appellate level, that the statute was unconstitutional on several grounds.3 Most notably, that office argued that the Act violated the separation of powers by improperly delegating the authority to grant parole to the judicial branch of government, which it argued was a power reserved to the legislative branch of government.
The Supreme Court rejected that argument and held that the Act did not grant the trial courts the authority to grant parole. Instead, the Court maintained, Act No. 2001-779 granted the trial courts the authority to modify an earlier sentence of life without parole to a sentence allowing for that possibility if the convict met the criteria for retroactive application of the original amendatory Act. If the court finds that the convict's sentence should be modified to life imprisonment, that finding only makes the convict eligible for parole consideration at the appropriate time as determined by the Department of Corrections and/or the Board of Pardons and Paroles.
Additionally, the State argued that the statute was unconstitutionally vague because it provides only that a "nonviolent convicted offender" is entitled to retroactive application of § 13A-5-9, but does not provide any standards for determining which inmates can be classified as "nonviolent convicted offenders". The Supreme Court rejected this argument as well. The Court held that the 2000 and 2001 statutes read together
sufficiently narrow the class of people to whom retroactivity applies (nonviolent offenders who have not previously been convicted of a Class A felony), and that trial courts are clearly competent to determine which offenders are representative of that class based upon the nature of the underlying conviction, other factors in the record, and information submitted to the judge by the Department of Corrections and the Parole Board. Furthermore, it held that it is well established that the Legislature may delegate the power to execute and administer the laws it passes provided it establishes "reasonably clear standards" governing same.
The Supreme Court noted that Act No. 2001-779 was "not a model of clarity", but held that it did provide reasonably clear standards for its execution and administration. The unanimous Court, therefore, held that the Act was constitutional and that there need be no further delay in its implementation. As stated earlier, the decision of Alabama's Supreme Court in this case was unanimous, which provides a very strong view from the Court that the Act in question is, in fact, valid and should be implemented and utilized in the courts of this State and by the Department of Corrections and the Pardons and Parole Board.4
As noted above, the Governor's office attempted to implement Act No. 2001-779 when it was first enacted. However, the Department of Corrections, the Board of Pardons and Parole, and the attorney general's office all resisted implementation, first in failing to develop guidelines and criteria as directed in Executive Order No. 62, and then by challenging the validity of the statute in court. All of these agencies have a vested interest in pursuing all possible alternatives to address the prison overcrowding problem. In fact, at the time the 2001 Act was enacted, the Department of Corrections was facing new contempt charges in the long-standing lawsuit with the counties over its failure to remove state inmates from county jails in a timely manner, and was embroiled in a federal lawsuit filed by inmates at the Tutwiler Women's Prison over conditions in that jail. Certainly passage of this Act was not the sole solution to Alabama's prison overcrowding problem. However, there is no one solution, and implementation of this Act could have a significant and immediate impact on the current prison population in this state. It is somewhat disappointing that, instead of immediately implementing this important legislation which counties fought so hard to put into law, these entities instead worked toward its defeat. Hopefully, now that the highest Court in this State has spoken strongly with regard to its constitutional validity, these agencies will move quickly to properly and effectively implement this important Act, and utilize this new tool available to alleviate to some extent the overcrowding problem in Alabama prisons and jails.
1 Under the habitual offender act, the mandatory sentence where the fourth offense is a Class B felony is life imprisonment, and where the conviction is for a Class C felony, the sentence is life or 15-99 years.
2 As already noted, counties and ACCA staff had worked long and hard for passage and implementation of this Act. Therefore, the ACCA filed an amicus brief in the Supreme Court detailing its support of this Act as an avenue for addressing prison overcrowding, and arguing that the statute was constitutional and valid.
3 The attorney general's office has traditionally been charged with the responsibility of defending the constitutionality of Alabama's statutes. This case represents a strong departure from that tradition.
4 It was unclear at the time of writing whether the State would file a Motion for Rehearing or Reconsideration in this case.
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