Beginning in 2001, the Alabama Legislature allowed inmates a limited opportunity to seek relief from harsh, life-without-parole sentences imposed under the Habitual Felony Offender Act for a triggering offense as trivial as stealing a bicycle. But in 2014, the Legislature repealed that opportunity. Today, more than 10 years later, there remain, at most, approximately 200 inmates who by now have served sentences of at least 25 years but are currently ineligible to seek a lesser sentence. SB156, popularly known as the “Second Chance Act,” restores that resentencing opportunity to these inmates—provided they did not commit a sex offense or any offense involving physical injury to another person.
Governor Ivey has made the very wise decision to be smart on crime by supporting this well-crafted remedy for fairness in sentencing. While Governor Ivey is right that our government must always protect public safety, she is equally right to be wary of the increasing costs to the taxpayers. Having served as the chair of Governor Ivey’s Criminal Justice Study Group in 2019, and as a justice on the Alabama Supreme Court who wrote two unanimous opinions on the subject, I am uniquely positioned to understand that this is a conservative, common-sense bill.
Delving into the details, the Habitual Felony Offender Act, HFOA, as originally enacted in 1977, called for mandatory sentences of life without parole, LWOP, when the defendant had three prior felonies even when the latest offense was the defendant’s first Class A felony. Under such circumstances, a defendant whose previous offenses did not involve physical harm to any person had to be sentenced to LWOP. In 2000, the HFOA was amended to allow the trial court discretion in choosing between a sentence of LWOP or life with eligibility for parole, also known as “straight life,” for these inmates. This 2000 amendment only applied prospectively, thus denying equal treatment to persons previously sentenced under the same circumstance.
In 2001, in the first opinion I wrote as a Justice on the Alabama Supreme Court, an inmate named Jerald Sanders asked the Court to reduce his LWOP sentence under the HFOA on the ground that, under the circumstances of his case, it constituted state-inflicted unconstitutional cruel and unusual punishment. Sanders was sentenced before the 2000 amendment, and his prior convictions did not involve violent acts. Indeed, his triggering Class A felony, first-degree burglary, was the unlawful entry into a screen porch and the theft of a bicycle valued at $16.
Although Sanders received a mandatory LWOP sentence, I could not find adequate precedential support to require the state to take action that would have, in effect, made the 2000 amendment to the HFOA retroactive for the benefit of Sanders. In a unanimous opinion, I wrote that application of the HFOA in Sanders’s case might produce “what many consider a harsh result.” But the question of whether to make the 2000 amendment retroactive, I noted, “is more appropriately addressed to the Legislature.”
In 2001, the Legislature took up this suggestion. It enacted § 13A-5-9.1, which made the 2000 amendment to the HFOA retroactive. This new statute permitted a nonviolent offender to file a motion in the trial court requesting resentencing from LWOP to straight life. In so doing, the Legislature recognized the propriety of affording fairness in sentencing for those sentenced before the 2000 amendment to the HFOA .
However, the remedy did not immediately become available. So, an inmate named Junior Mack Kirby asked the Court to require the state to recognize the availability of a remedy under the 2001 retroactivity statute. I wrote my second unanimous opinion requiring the state to recognize Kirby’s right to file a motion for resentencing under the 2001 retroactivity statute.
For the next ten years, dozens of inmates within the class of those sentenced in the years before the 2000 prospective-only amendment who could establish their non-violent status filed motions for alteration of sentence under what came to be known as “Kirby motions.” Both Sanders and Kirby ultimately obtained release from prison after filing Kirby motions.
Some of these individuals had been convicted of first-degree robbery, also a Class A offense. But because they had demonstrated rehabilitation during years of imprisonment, courts accurately determined they were worthy of relief. Unfortunately, many eligible inmates had no access to lawyers and therefore did not avail themselves of the right to file a Kirby motion.
In 2014, the Legislature repealed the 2001 retroactivity statute. The inmates affected by this decision have now served at least 25 years in prison, and in many cases much longer, given the stricter version of HFOA as originally enacted in 1977. The age of the current population spans a minimum of 50 years and older. Many endure the medical issues and incur the expenses common to this age group. The conduct for which they were punished occurred at a time in their lives when judgment is not generally considered to be well established.
SB156 restores the 2000 amendment in a way that ensures public safety. As noted, it denies eligibility to those who caused death or physical injury to another, or anyone who committed a sex offense. It requires consideration of the inmate’s conduct while incarcerated and gives both the district attorney and the victim have a right to be heard. Finally, its resentencing opportunity expires on October 1, 2030, giving affected inmates just one chance to get the “second chance” at resentencing that was taken away from them in 2014.
This smart-on-crime bill should receive the support of both Houses and be sent to Governor Ivey for her signature.
