How the promise of diversion clashes with the reality of poverty, addiction, and structural racism in Alabama’s justice system
We surveyed 1,011 justice-involved Alabamians asking those who were involved with diversion how those programs affected their daily lives.
Most of our survey-takers were poor. Fifty-five percent of them made less than $14,999 per year. The median amount they reported paying for diversion was $1,600. Only 10 percent had ever been offered a reduced fee or fee waiver based on their inability to pay.
“I know I did wrong and deserve punishment but taking my drivers license then losing my job due to court dates and CRO classes is so depressing. Sometimes I don’t see a way out.”
“… the situation feels like being in a PRESSURE COOKER!!!!”
“A lot of things like color code seems almost designed to fail. Having a job an hour away and having to appear on the same day not knowing until the morning of. Additionally the office you are to appear at opens after I am already at work and closes before I get off makes it almost impossible to make it there.”
“You commit a crime then have to continue a life of crime to pay the Court or you’ll be jailed.”
“Drug Court is very expensive. It’s hard to pay a lot of months. But you make sacrifices so you don’t get kicket out and not go to jail. So you make the payments even if it means extending it.”
“My license is suspended and I wasn’t able to get a ride the day my color got called, I tried calling multiple people multiple times a day for 3 days to explain why I couldn’t be there and the day I went they wouldn’t let me take my drug test and marked me as non compliant. I was only supposed to be on this program for 9 months and I’m still on it having to make payments for over a year. I think the system is set up just to make money.”
“Had to forgo doctors appointment to neralgist and regular physician after having stroke. I had $100 to my name. It was a hard decision. I choose to pay the state.”
“The money I had to pay to the whole Drug Court team along the way became the most important issue above all else. If you got behind a week they would suspend you untill you were caught up, and being on Color Code was very unpredictable! I might spend $20 a week or $20 a month on drug screens. I guess the most dissapointing part of the 2 yrs in Drug Court was finding out on the 21st month of the program that I couldn’t graduate untill my restitution was paid in full!”
“It’s a trap. … Purposely makes it where you are persuaded to take a long probation, community correction or court referral program sentence, and give you unrealistice goals and rules designed for you to fail so you can pay more money than you should and in no way helps in rehabilitation.”
“CRO, you have to pay, fines you have to pay, court cost you have to pay, if your drivers license was taken you have to pay, if it’s a DUI device interlock you have to pay, if you have a bad driving record your insurance is higher you have to pay. It seems like to me it makes it harder to survive and your forced to either go to jail or work for nothing. Its madness like the hampster on the wheel.”
“I can not get back on my feet because of my criminal debt. My fines have increased in 35% interest fee since I have been in a rehab that was court ordered.”
Rondell Johnson // Montgomery County
A Deadly Amount”
Montgomery is trying to do things differently. And yet, even a program designed to accommodate the needs of poor people with full-time jobs struggles to overcome all the obstacles created by Alabama’s harsh and mindlessly punitive mechanisms for punishing low-level offenders.
Rondell Johnson is a sanitation worker who received an offer to participate in pretrial diversion in connection with a 2016 nonviolent felony charge.
He jumped at the chance, eager to put his mistake behind him. But Johnson also owed about $3,000 in traffic debt. He got one of the tickets, he recalls, on the way to take a test to become a corrections officer. He missed the test.
Under the district attorney’s rules about ability to pay, the fact that Johnson owes money in other jurisdictions did not bar him from participating in the program. But the Failure to Appear (FTA) warrants do.
Johnson owed traffic debt in several jurisdictions. Some places allow people to clear FTAs by paying some or all of what they owe, but in some places, clearing an FTA can come with jail time. At one point, Johnson was stopped in Montgomery and extradited to Autauga County on an FTA related to unpaid traffic debt. He spent several nights in jail there and was only able to get on a payment plan after borrowing money to pay $500 toward what he owed. He could not afford to do that elsewhere.
The attorney appointed to represent Johnson in Montgomery County was not authorized to represent him in the other jurisdictions where he owes traffic debt, nor was he legally entitled to an attorney on those traffic debt cases even though he is desperately poor. His license is suspended because of the unpaid fines and FTAs.
Johnson’s efforts to get a second job were stymied because some employment agencies would not accept his application due to his pending felony. His take-home pay after taxes, insurance, and the child support that is automatically deducted from his check, was about $330 every two weeks. He lived with relatives because he cannot afford rent and utilities.
Johnson described his outstanding debt as “a deadly amount. Like an amount that I know I can’t come up with. I don’t have no one I can go to and say hey, let me borrow this $300, I have to pay. It’s not that easy.”
Though desperate to improve his circumstances and move forward with his life, it took Johnson nearly a year after the initial offer of pretrial diversion was made to clear the FTA warrants and start the program.
“I got good potential. Good background. But no one’s going to hire me because my case is pending,” he said. “I got a little on my back right now. I just got to get those things behind me.”
Kim Armstead // Lawrence County
“It Don’t Go Toward Nothing”
Kim Armstead had struggled with addiction since being prescribed painkillers for severe endometriosis as a teenager. “I couldn’t even swallow pills when I first had it,” she shared. “Then I took that one and the pain went away, and it all went downhill from there.”
She enrolled in multiple drug rehabilitation programs seeking help for what became a pain pill addiction. But it was marijuana, not prescription drugs, that landed her in Lawrence County’s Pretrial Diversion program. Armstead, 35, was originally charged with unlawful sale of marijuana. Prosecutors offered diversion if she pled guilty to unlawful possession of marijuana in the first degree – possession for other than personal use. Hanging over her head was a potential 5-year prison sentence if she did not complete the program. “They gave me 60 months. If I mess up at all … I will have to do 13 to 60 months in prison. I don’t go back in front of the judge I go straight to jail,” she said. “They gave me 60 months behind something that’s legal most everywhere.”
Avoidance of this fate is heavily tied to regular payments to the Lawrence County District Attorney’s Office, plus additional fees to Drug Court and Court Referral, the costly and overlapping system of diversion programs that ensnare of thousands of Alabamians with minor drug charges.
Enrollment in the district attorney’s pretrial diversion program began with a $537 payment. Armstead understood that amount to be the startup fee. “It doesn’t go toward nothing because I still have to pay $100 a month for 12 months.” In addition, she paid $50 per month for mandatory drug testing and supervision by a Court Referral Office.
Armstead still suffers from debilitating endometriosis and is trying to cope drug-free. Doctors have recommended a hysterectomy. But she is newly married and hopes for a child someday.
She is steadily employed as a restaurant cashier, and working double shifts helps her maintain the payments. But with rent and utilities, it’s not easy.
In addition, law enforcement seized her car at the time of the arrest. The PT Cruiser was paid for, and she was not even arrested in the car. But with all of the other challenges, Armstead was unable to mount a legal case to get the car back, and recently purchased another vehicle with help from her husband.
However, before she is released from her diversion obligations, she will also have to pay $633 in court fines and fees, which could extend her $100 monthly payments to the District Attorney if she cannot come up with this amount all at once.
In total, she’ll hand over at least $2,970, and perhaps a 2008 PT Cruiser, because of a small amount of marijuana. “It’s going to take me a long time to get back all the money I done paid to these folks.”
Amber // Madison County
“There’s nothing like your own mom.”
Amber had been at Tutwiler Correctional Facility for about a year after her probation was revoked on a robbery conviction when she learned she was eligible for apply for transfer to Community Corrections.
She started applying right away. Eight months later, in early fall 2019, she was released into the supervision of Madison County Community Corrections.
Amber was thrilled to be reunited with her children. As an inmate, she is not allowed to have custody of them, but she can live with and support them while her mother remains their legal guardian. After returning, Amber fixed up her mother’s house. Her youngest son, who was devastated by her absence, had punched holes in the walls while she was gone; she hung new sheetrock, repainted, and used some of the money she earned working to replace her boys’ bedbug-infested mattresses.
Amber’s relative liberty came with a heavy financial burden. Within 24 hours of her release, she was required to show up at the CCP office with $290 with her to pay for her first month of monitoring by an electronic monitoring device. She also owes at least $20 a week for random drug tests and is expected to contribute regularly toward the roughly $5500 she owes in fines, fees, court costs, and restitution. And she needs to get her driver’s license back, but that costs $350.
Madison County CCP let Amber know her participation is contingent on paying the monitoring and drug testing fees. If she failed to pay, they said, she would be sent back to Tutwiler. Seeking to learn more about how Madison County CCP evaluates risk and determines the need for electronic monitoring, Appleseed left a voicemail with the program’s director on Dec. 20, 2019, but did not receive a call back. We also reported the situation to the officer that oversees Community Corrections statewide and were told an investigation had been initiated.
Amber is a willing worker who received multiple certifications during her time at Tutwiler, including certification as a logistics technician, OSHA certification, and a forklift license. She took communications classes and learned basic Spanish to make herself a more appealing job applicant.
And she received job offers, including a $15 per hour position at GE. She took a 32-hour training course and passed a drug screen, but at the last minute, the offer was rescinded because of her criminal history. Another time, she showed up for her first day of work at a different job only to learn she’d been rejected after it was offered. Eventually, she found work through a staffing agency that takes part of her paycheck. She is determined to find a way to pay what she owes.
“Most teenagers don’t want to talk with their moms, but my kids enjoy being around me,” she said. “I cook dinner every day. And on Saturdays and Sundays, I make breakfast on Saturdays. They love that. My mom tried the best she could when I was gone, but nothing’s like having your mom. The way she folds your clothes. She may use a certain laundry detergent. There’s nothing like your own mom.”
Bernard // Jefferson County and Birmingham Municipal Court
“What time do I have to work?”
More than anything, “Bernard” wants to get a job and help support his wife, his high school-student daughter, and his infant grandchild. But between the obligations he has to Jefferson County Community Corrections and the city of Birmingham’s municipal drug court, the 53-year-old Birmingham resident doesn’t know where he’ll find the time.
“They put me in drug court and I’m in community corrections at the same time, with classes in both community corrections and drug court at the same time, same days, different hours, morning and evenings,” he said. “I have no time to even find a place to stay. I’m homeless now. I lost my apartment while I was in jail and I’m going to a faith-based facility when I leave here, just to try to save money so I can get a place.”
Meanwhile, “My daughter is in high school and my wife has a disease in her legs and can barely get around. She really can’t get up and move around that much. So coming to court, going to classes at night and the daytime, there’s nobody there to keep the grandbaby. And I was doing most of the babysitting and taking care at home, and then you have to go to court. Maybe five or six times I had to take the baby to court with me. Sometimes they don’t allow babies in the courtroom so I had to let somebody I don’t know hold the baby in the hallway. Once I was late for court and I had a positive urinalysis and the judge sanctioned me. There are some people who could have kept the baby, but we didn’t trust them. So my daughter had to come out of school and come to the court and get the baby.”
“I don’t even see where I’ll be able to work to pay a fine because of scheduled classes in the morning, in the evening – what time do I have to work?” Bernard wondered. “If I get a midnight job and work at night and I have to get up, I get home at 7:30, 8:00 and I have to be right back in classes at 9. I don’t think anybody can do that.”
Marilyn // Shelby County
“I eventually got out of it. I paid enough money.”
Marilyn, from Homewood, was 30 when she pled into Shelby County’s drug court after being caught with marijuana and a small pipe at a 2013 concert in that county. Marilyn had a small amount of marijuana between her fingers when police burst into the truck where she and her friends were tailgating. Police took her name and cell number but did not arrest her, telling her she could stay out of trouble if she identified other individuals at the concert who were using or selling drugs.
Marilyn didn’t see anyone using drugs. She left the concert early. For several weeks, she received phone calls from one of the officers, who insisted that the only way she could avoid charges was to turn someone else in.
Marilyn was not able to do that. Eventually, she learned there was a warrant out for her arrest on charges of misdemeanor possession of drug paraphernalia. She turned herself in, hired a lawyer, and on his advice pled into drug court.
Marilyn lived about 45 minutes from where the drug court and drug testing facilities were located and was forced to negotiate with her boss for time off whenever she had court or her color was called. Though she never tested positive for drug use, she was called in for tests multiple times each week, enduring an intimate search of her person and undergarments each time she did.
For nine months, she was unable to leave the area even for a short time to spend the holidays with her family, because her color could be called at any time. She also endured severe pain because she was not allowed to take prescribed pain medication in connection with a root canal, so she opted to wait to have the procedure until drug court was over.
Worst of all was the anxiety.
“Just hearing [the judge] talk to anyone else gave me anxiety, because everyone was being put on the spot, and these people would be there with their children and their children would be hearing these ways these people were talking to them, and there would be all these other people in orange jumpsuits, handcuffed, ankle chained and all this stuff.”
“I eventually got out of it,” she said. “I paid enough money. I never thought that I would. It felt when I was in there, like, is this system meant for people to fail?”
Archie // Dallas County
“Either way it’s just about a trap”
Archie, 39, from Selma, is a construction worker, welder, and father of four. He knows he can make good money and provide for his children. But diversion-related court appearances have made keeping a job difficult.
Archie makes less than $15,000 a year and does not have a driver’s license because he cannot afford to pay off his old traffic tickets. When we met, he was participating both in CRO and drug court. He has given up basic necessities, stolen, and sold drugs to keep up with diversion-related payments.
Initially, he hoped diversion programming could help him. In fact, it made things harder. “I ended up losing a job about it – going back and forth to court,” he said.
“If you miss court, that’s a warrant and you go to jail for that too. But you gotta go. And some jobs, like we’re scarce on jobs here in Alabama so you just – they might not want you to be off. And you’re like, well I’ve got to go to court. I’ve got to go see my probation officer; I’ve got to go somewhere with law enforcement. And they’re like, we really don’t care about that, we need you here at the job. So now you gotta choose between going to court, which you know if you don’t go to court then chances are you might go to jail. But you also need your job, ‘cause you got kids depending on you. So it’s like – you stuck in the middle juggling this and that,” he said.
“Either way it’s just about a trap.”
Ryan // Shelby and Chilton Counties
“I thought everything would be under drug court”
“Ryan,” 33, has struggled with addiction since he was 18 years old. In 2017, he was convicted of drug possession and put on 20 months’ probation in Chilton County. About a year later, he was arrested again for the same thing, this time in Shelby County, right next door.
Ryan, who has a 13-year-old son, wanted to get clean. He wanted to be in drug court, where he knew the regular drug testing and check-ins would keep him accountable. And he excelled. After spending three weeks in Shelby County’s community corrections facility while he waited for a treatment bed to open, he went to an inpatient rehab program in south Alabama. About four weeks later, he returned to Shelby County. Months passed; he never failed a test. He was never sanctioned. He got a job and fixed up his vehicle.
Then, when he went to get it registered, “It showed up that I had a felony probation violation warrant.”
Ryan was confused. “I thought everything would be under drug court because it’s a more extensive program.”
He turned himself in, and from May to July 2019, he bided his time in Chilton County jail. When Appleseed met him there, he had not been outdoors in three months. The jail was so crowded people slept on mattresses on the floor.
After the Chilton County judge finally released him, Ryan returned to Shelby County and set about rebuilding his life for a second time. It wasn’t easy. Unable to afford rent, he stayed off the streets by staying with family. He found a job that paid about $400 a week, but owed $40 a month to probation in Chilton County and was paying his Shelby County drug court fees off as quickly as he could, at a rate of about $100 a week, plus $10 each time he was called to leave a urine sample, which happened 2-3 times a week. He also owed $50 a month toward fines connected to his conviction in Chilton. Altogether, nearly half his income each month goes toward court- and diversion-related costs, fines, and fees.