The Constitutional Right to Counsel: Is it being upheld in Alabama?

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The United States Constitution is clear. In criminal cases, the accused have a right to a lawyer. Our Constitution affords this protection in order to ensure that individuals are not wrongfully or unfairly deprived of their liberty.

Yet there is question as to whether this fundamental 6th Amendment right is being upheld in Alabama.

Throughout the South, states and districts are being sued for their failure to comply with the Constitution.

In Louisiana, indigent defendants have asserted that their constitutional right to counsel is being denied, which has led to a legal battle over the state’s failure to provide adequate funding and resources for the state public defender service.

Similarly, indigent defendants in South Carolina recently filed a class action lawsuit against certain jurisdictions for failure to provide legal representation.

Horrifically, one plaintiff in the South Carolina case, a homeless man, has been arrested or given a citation 270 times for the same offense, yet not once has he had an attorney represent him in court proceedings.

These cases demonstrate why we need to know if, how, and to what extent Alabama is ensuring access to counsel for indigent defendants.

Appleseed previously conducted a study of the indigent defense services in four Alabama judicial circuits from 2001-2002. This report has been widely cited for the insight it provided on the practices of indigent defense counsel and the outcomes of those cases.

But, there have been no such studies conducted since then, and there is no comprehensive report on indigent representation throughout Alabama.

In order to understand how and whether the right to counsel is being protected today, Appleseed will soon begin documenting and assessing the quality of indigent defense services in a wide range of counties.

Appleseed’s staff has been traveling to all corners of the state to engage with those in the community who are charged with the duty of ensuring that indigent defendants receive legal representation. We have been meeting with these stakeholders, including public defenders, criminal defense attorneys, judges, and other key Alabamians to hear their views on how the system is currently functioning and what aspects of indigent defense they believe we most need to research.

Alabamians care deeply about protecting the Constitution. This is why Appleseed will conduct this study, and then use the findings to collaborate with partners to ensure that all indigent defendants in the state have access to adequately resourced, quality legal representation.

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Alabama Appleseed Urges Governor Ivey to Rethink Alabama’s Drug Policy

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Montgomery, AL – The following statement is by Frank Knaack, executive director of Alabama Appleseed, regarding Governor Ivey’s decision to award $1.3 million to establish the Alabama Drug Enforcement Task Force:

“After more than 45 years of the War on Drugs, one thing is clear – we cannot prosecute our way out of drug use. Approximately one in every seven people in Alabama’s already overcrowded prisons are there because of a drug offense, yet drugs remain cheap and widely available. Doubling down on this failed strategy is an expensive and ineffective approach.

Alabamians would be much better served by redirecting money to treatment programs and other public health based responses that have been shown to reduce drug use and save lives. We urge Governor Ivey to reconsider her decision.”

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​Alabama’s Death Penalty Process is Broken

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On Thursday, October 19, the state of Alabama executed Torrey Twayne McNabb by lethal injection, using a secret execution protocol that has repeatedly resulted in botched procedures.

The execution did not go well. After reassuring his family that he was not afraid, Mr. McNabb was injected with midazolam, a valium-like sedative, and executioners twice conducted a “consciousness check,” brushing Mr. McNabb’s eyelid, calling his name, and pinching his shoulder. Mr. McNabb responded in a purposeful-looking way to both checks, moving his hand, raising his arm, and grimacing, but the execution proceeded anyway.

Afterwards, Commissioner Jefferson S. Dunn told reporters executioners had followed the protocol “as it is written” – an unverifiable claim, since Alabama has refused to release details of its protocol, despite multiple public records requests and current litigation by a local minister. Dunn said he was “confident” that McNabb was “more than unconscious” when he moved, characterizing his movements as “involuntary” and saying they are common occurrences at executions.

Indeed they are. Ronald Bert Smith, Jr. heaved and coughed for 13 minutes of his December 2016 execution. And purposeful-looking movement was observed during the January 2016 execution of Christopher Brooks, who reportedly opened one eye, and the June 2017 execution of Robert Melson, whose hands and arms reportedly quivered and shook against his restraints.

These facts alone should be enough to persuade Gov. Kay Ivey and legislators that Alabama’s death penalty process is broken. But they are not the only reasons. In 2015, judges ordered the release of three men – Anthony Ray Hinton, Montez Spradley, and William Ziegler – from Alabama’s death row due to evidence of innocence or prosecutorial misconduct, errors, and abuses egregious enough to warrant reversal. Including Hinton, eight Alabama death row prisoners have been exonerated in the modern death penalty era. That many of them spent decades behind bars should give pause to supporters of attempts, including 2017’s so-called “Fair Justice Act,” to shorten the time between sentencing and execution.

As far back as 2006, the American Bar Association’s Alabama Death Penalty Assessment Team, consisting of eight distinguished Alabama attorneys, made a variety of specific recommendations for reform. Recognizing that Alabama’s death penalty process ensured neither accuracy nor fairness, these Alabama experts called for a temporary moratorium on executions while the state worked to address them. So far, only one of these, calling for an end to the practice of allowing elected judges to override a jury’s recommendation of life without parole in favor of a death sentence, has been enacted.

Before Alabama even considers moving forward with a new execution, it must implement the Assessment Team’s recommendations and empanel a new commission to review emerging issues, including the demonstrably problematic execution protocol. In devising a new commission, Alabama lawmakers could look to the example of Oklahoma, which implemented a moratorium and empaneled a commission to review its capital punishment system in 2016, after a disastrously botched execution, and revelations of shocking ineptitude and deception by top Department of Corrections officials brought international condemnation and undermined public confidence. Following a year-long investigation, the commission unanimously recommended an extension on the moratorium “until significant reforms are accomplished.”

Alabama’s system suffers from many of the same flaws as Oklahoma’s, including an execution protocol that has resulted in several botched executions; inadequate safeguards against the execution of the innocent; and an over-burdened and under-resourced defense bar.

While Alabamians may disagree on whether we should have a death penalty, we should all agree that if Alabama has a death penalty then the process should be fair and accurate. Currently it fails this basic test.  It is unconscionable that Alabama continues to execute individuals without addressing the fundamental problems with our death penalty process.

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Introducing Dana Sweeney – Alabama Appleseed’s Organizer

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My name is Dana Sweeney, and I am the newest addition to the Alabama Appleseed team. Continuing the efforts of many Appleseed advocates before me, I will be working as a statewide organizer to put an end to predatory lending practices in Alabama. I will be driving near and far to connect with Alabamians on this important issue, to build coalitions of active citizens that support fair lending practices, and to hold payday lenders accountable for cynically churning profits out of poverty.

My path to this work (and to this state) has been winding, but fortifying. I did not grow up in Alabama: I grew up in the salt marshes of southeastern Georgia reading books and dreaming of the wide world beyond the small town South. For many years, I imagined travelling to faraway places and living in huge metropolises—New York! Los Angeles! London! Beijing! It seemed to me at the time that those were the places where all the excitement was, but fortunately, my visions of extravagant elsewheres were eventually replaced by a deep sense of rootedness in the Southern spaces where I am from.

When (with the generous support of several scholarship programs) I had the opportunity to attend college, I initially hoped to attend school someplace far from home. I got far, but not that far: in August of 2013, I packed my bags and drove about 400 miles west to a new, unexpected, sweet home: The University of Alabama in Tuscaloosa.

While there, I studied English in the classroom, but the most important lessons of my college career came when learning about, from, and with the communities that I was beginning to call home. I began to see how our communities are haunted by the unconfronted ghosts of our past. I began to see how fear and uncertainty have the potential to steal away the best of ourselves, and to steal us away from each other, too. I began to see how injustice has, in so many ways, calcified into complacent normalcy in Alabama and across the South. But I also began to see something else: that no place changes without people committed to changing it. I began to see that no transformation is possible here but by the hard, patient, loving work of people who refuse to give up on the possibility of a more just Alabama that we can all share in together. I began to see that inequities can only persist when we cease to believe that we have the power to change them.

Putting these realizations into practice, I started working however I could to build supportive communities, to spark needed conversations, and to address issues that I saw around me. My journey has taken me in many different directions over the last several years: I have fought for (and won) student voting rights as a Vote Everywhere Ambassador for the Andrew Goodman Foundation, I have grown a literacy-focused creative writing and poetry performance program serving students across western-central Alabama, I have provided free tax preparation services to low-income communities through Impact Alabama, and I have marched on foot from Selma to Montgomery alongside young civic leaders and Civil Rights Movement veterans alike. My experiences have been varied, but they have a few consistent threads: they are all rooted in my conviction that Alabama can do and be better, all driven by my belief that we are capable of making change and being changed together, and all made possible by working in community with others across generations and difference. These are values and commonalities that I will carry forward into my work with Alabama Appleseed.

I am so excited to listen to, learn from, and be with communities across Alabama as we build a coalition to address the predatory lending crisis in our state. These days, I no longer dream of moving to shining cities far away like I did when I was a kid. Instead, I dream of staying put, of rolling up my sleeves and scrubbing the dirt off the small Southern towns that made me, of revitalizing our communities and building a shared, just, prosperous future right here. That future begins with each of us, but it is up to all of us, and I will be working every day at Appleseed to move us closer toward it together.

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Introducing Leah Nelson – Alabama Appleseed’s Researcher

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My name is Leah Nelson, and I am delighted to join Appleseed. As Researcher, I will be collecting stories, data, and information to turn into white papers, reports, and advocacy material to support Appleseed’s Access to Justice and Fair Schools, Safe Communities campaigns.

I moved to Alabama in 2010 for a two-year fellowship at the Southern Poverty Law Center, where I covered white supremacy, nativism, the Patriot movement, and other forms of extremism for SPLC’s Intelligence Project. As time passed, I felt compelled to stay. I married, started a family, bought a house, picked a college football team to root for, and moved on to a 5-year stint in the Capital Habeas Unit of the Middle District of Alabama Federal Defenders, supporting the appeals of death-sentenced individuals seeking new trials.

In that role, I witnessed the devastating consequences of Alabama’s school-to-prison pipeline, inadequate safety net, and under-resourced indigent defense system. I had clients whose first contact with the justice system came when they were prosecuted in court-like settings for misbehaving in school, and others whose distrust of the criminal justice system – distrust born of experience – ran so deep that they struggled to convey useful information that might have saved them from death row. In the year preceding my departure from the Federal Defenders, two of my clients were executed without ever having their cases reviewed on the merits because Alabama declined to provide them with attorneys in state post-conviction proceedings.

I believe that our democracy functions best when accurate, well-presented information about the world we live in is readily available to lawmakers, the courts, and people of all walks of life. As Alabama Appleseed’s Researcher, I hope to create written materials that will inform policy-making to prevent the kind of injustices my former clients, and too many other Alabamians, suffer.

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Introducing Phillip Ensler – Alabama Appleseed’s Policy Counsel

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My name is Phillip Ensler and I am excited to have recently joined Alabama Appleseed as Policy Counsel. In my role, I will provide direction and leadership to advance our policy goals. This includes managing the Access to Justice Campaign to improve access to adequate counsel for indigent clients in criminal and civil cases.

I graduated from the Benjamin N. Cardozo School of Law in New York this past May. Although I am a native New Yorker, coming to Montgomery is like returning home – or as we say down here, Sweet Home Alabama!

My history in Alabama dates back to when I was in college and visited Montgomery, Selma, and Birmingham to see the sacred sites of the Civil Rights Movement. I was humbled and inspired by standing in the very places where Martin Luther King Jr., John Lewis, Rosa Parks, and countless other heroes and foot soldiers had the courage to stand up for a more just and equal Alabama.

Despite the significant progress that has been made, I was also aware that there was still much more to be done. In this spirit, I moved to Montgomery in 2012 to serve as a Teach for America corps member, where I worked to help close the educational achievement gap. My students were just as talented and intelligent as students at any other school, but they were not given the same opportunities to succeed due their racial and socioeconomic backgrounds.

My experience in the classroom motivated me to attend law school in order to gain the skills and knowledge to fight to make the law fairer so everyone in Alabama can achieve their full potential. I was committed to returning to Alabama because it was a community that welcomed me with open arms, and it is where I have met some of the most dedicated and passionate people in my life.

After my second year of law school, I worked as a legal intern at the Southern Poverty Law Center in Montgomery, where I worked on juvenile rights and education issues. And now, I am looking forward to the work Appleseed will do to ensure that more students are receiving the education and opportunities they deserve and do not become just another number in the system of mass incarceration.

We also have much work to do in the area of civil and criminal defense legal services for disadvantaged Alabamians. The words “Equal Justice Under the Law” are engraved on the façade of the United States Supreme Court. Yet in order to fully live up to that democratic principle in Alabama, we must ensure that all citizens have access to adequate lawyers, regardless of their socioeconomic status. Our justice system should not depend on which side has deeper financial pockets.

That is why at Appleseed we will be working with partners throughout the state to increase funding for civil legal services. This will ensure that those who cannot afford to hire a lawyer can continue to have access to legal assistance for vital services such as applying for veterans benefits or seeking to remain in their home in the face of eviction.

On the criminal side, we will similarly work with stakeholders to ensure that indigent criminal defendants receive adequate counsel. The determination of truth and justice in a criminal case should not be predicated on whether a defendant can afford an attorney. At the Innocence Project, where I also did a legal internship, we saw in case after case that defendants were wrongfully convicted and incarcerated for decades because they did not have access to adequate counsel during their cases. In order to prevent such injustices in Alabama, we will examine which methods are most effective in upholding indigent defendants’ Constitutional right to counsel. We will then advocate for these best practices to be implemented state-wide.

Dr. Martin Luther King Jr. once said, “we are determined here in Montgomery to work and fight until justice runs ‘down like water, and righteousness like a mighty stream.’” At Appleseed we are determined to continue that effort for all of Alabama. I am grateful to be a part of such work and I look forward to working with activists, partners, and leaders throughout the state to make it happen.

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Introducing Lisa Cagle – 2017 Summer Legal Intern

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My name is Lisa Cagle and I will be a second year law student at Cumberland School of Law in Birmingham, Alabama. While I am originally from North Dakota, I am excited to be living in Alabama and enjoying the warm weather year round. I may not have been born here, but I got here as fast as I could.

My background is not your typical law student background. I have a Bachelor’s of Science in Chemical Engineering from UCLA. However, life had other plans for me, and I became a teacher in 2008. During my first year teaching, I read an inspirational book by Wes Stafford titled Too Small To Ignore that changed the way I viewed teaching. In this book, Stafford stresses the importance of focusing on children and their unique needs and not waiting until a person has reached adulthood to begin to consider them a quality member of society. Shortly after that, I met my first child with autism spectrum disorder (ASD). Finding unique ways to teach that child was an amazing experience for me. As a result, I spent many of my continuing education hours learning about special needs and how to design a classroom setting and modify my teaching style to accommodate children with special needs. Over the course of eight years of teaching, I had the privilege to work with several children with varying needs and the honor to help educate families on special needs and the accommodations and therapies available to help these children learn and thrive in a structured school environment.

After several years of working with children and families, I decided to go to law school to enable me to continue to work with families in ways that I was unable to as a teacher. I desire to do more than recommend other resources and professionals to families in need. I would like to be one of the resources and professionals that a family can turn to. This is also one of the reasons why I am excited to intern at Alabama Appleseed this summer. Appleseed has a reputation for creating change to better the lives of people in Alabama and I am excited to be a part of this.
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My project this summer will be the school to prison pipeline. According to the American Bar Association (ABA), the school to prison pipeline is the metaphor for the student disciplinary issues at school that result in students leaving school and entering the criminal justice system. The ABA has done research to discover that a disproportionate number of minority students and students with special needs are dismissed from school, resulting in a disproportionate number of minority students and students with special needs in the criminal justice system. As a former teacher, this issue is near and dear to my heart. I have received training on ways to help children with special needs adjust to a classroom setting and believe that all children deserve a chance for a quality education, not just the ones who have the ability to conform to a “typical classroom setting.” I am honored and thrilled to working as an intern for Alabama Appleseed and am looking forward to continuing Appleseed’s work this summer.

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Introducing Ellen Larson – 2017 Summer Legal Intern

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My name is Ellen, and I am looking forward to being an intern this summer with Alabama Appleseed! I just completed my first year of law school at Cumberland School of Law in Birmingham, Alabama. I grew up in the Nashville, Tennessee area, and I graduated from college at the University of Tennessee in Knoxville, Tennessee.

Before coming to law school, I worked for nonprofit organizations providing educational resources to immigrant and low-income communities. I was an AmeriCorps member in Arlington, Virginia with the Arlington Education and Employment Program, where I taught English as a Second Language to adult immigrants from a multitude of countries and of a variety of ages. After that, I was an AmeriCorps member in Nashville, Tennessee with an after-school program for middle school students. That opportunity led to working for The Center for Refugees and Immigrants of Tennessee (CRIT), where I was a Site Coordinator for one of its after-school programs for middle school students. Later, I was promoted to being the Associate Director of all of CRIT’s after-school programs. Around that time, I became interested in going to law school to be an attorney. CRIT had an immigration attorney, and the work the attorney did stuck out to me. He helped immigrants, who were already positively impacting the Nashville community, establish residence in this country after suffering traumatic situations in their home countries. Before going to law school, I also shadowed public defenders. One day I went back in the county jail and met a young girl, about 15 years old, who was charged with making meth with a male about 20 years old. She struck me as a girl who may have made a bad choice as to who she became friends with but if given the opportunity she would make better choices.

I am excited about the work I will do this summer with Alabama Appleseed. The major project I will be working on is to set the groundwork for a heir property project to help individuals gain clear title to their land. Heir property is property that automatically goes to a deceased person’s heirs when the deceased person did not provide for the ownership of the property in a will. Although there might be numerous heirs to a property, often only one heir is using the property. In fact, many of the heirs are probably not aware of their interest in the property. The main issue with heir property is that the property cannot be used in a way as it could with clear title. For example, the property cannot be leased or financed without the consent of all the heirs to the property. In addition, the heir property owner using the land can be forced to leave if others with an interest in the property bring a judicial partition action. This often happens when the heirs who are not using the land sell their interest to a non-family member.

Resolving heir property issues is particularly difficult for people who do not have access to legal assistance. Alabama Appleseed’s goal is to create resources that will help volunteer attorneys and law students navigate the hurdles individuals face when seeking clear title to their land.

Other projects I look forward to working on this summer include researching barriers to justice and policies that feed Alabama’s school-to-prison pipeline. I am very excited to be working on these projects because I know it will make a difference in the lives of individuals finding themselves in the juvenile and criminal justice systems. I chose to intern with Alabama Appleseed because the organization is effective at advocating for just policy for Alabama residents. I look forward to furthering Appleseed’s work this summer!

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Alabama Legislature Sends Bill to Make Alabama’s Death Penalty Process Even Less Fair and Accurate to the Governor

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Montgomery, AL – The following statement is by Frank Knaack, executive director of Alabama Appleseed, regarding SB 187.

“Eight times since 1976 Alabama has sent a person to death row and gotten it wrong. Yet, instead of focusing on ways to keep Alabama from making another potentially deadly mistake, the Alabama legislature voted to make Alabama’s death penalty process even less reliable.”

“Opposition to this legislation should have been universal. In the United States, the importance of ensuring a fair and accurate death penalty process should be non-negotiable. The Alabama legislature disagreed.”

“We urge Governor Ivey to veto this bill. This is not about where you stand on the death penalty, it’s about where you stand on the need to ensure a fair and accurate death penalty process.”

SB 187 will now go to Governor Kay Ivey. For additional information regarding SB 187, please read Alabama Appleseed’s fact sheet.

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House Votes to Make Alabama’s Death Penalty Process Even Less Fair and Accurate

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Montgomery, AL – The following statement is by Frank Knaack, executive director of Alabama Appleseed regarding SB 187, which the Alabama House of Representatives passed today:

“Eight times since 1976 Alabama has sent a person to death row and gotten it wrong. Yet, instead of focusing on ways to keep Alabama from making another potentially deadly mistake, the Alabama House voted today to make Alabama’s death penalty process even less reliable.”

“Opposition to this legislation should be universal. In the United States, the importance of ensuring a fair and accurate death penalty process should be non-negotiable. Today, the Alabama House disagreed.”

For additional information regarding SB 187, please read Alabama Appleseed’s fact sheet.

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