Photograph by Val Downes

The Consumer Financial Protection Bureau (CFPB) recently solicited public comments related to their proposal to weaken protections for payday loan borrowers. An open letter submitted to the CFPB by Alabama Appleseed follows:    


Dear Director Kraninger,

For many years, The Alabama Appleseed Center for Law and Justice (“Alabama Appleseed”) has been documenting the numerous and varied harms caused by high-cost lending in our communities. We have specific concern about the impact that payday loans have on more than 200,000 Alabama borrowers every year, and we were there in Birmingham when former Director Cordray kicked off the payday loan rulemaking process in 2012. That process, begun here in Alabama, produced essential consumer protections for payday loan borrowers after years of careful study. When your agency’s 2017 payday and vehicle title loan rule (“Rule”) was announced, we were particularly grateful for the introduction of ability-to-repay requirements. Today, we understand that those needed protections are potentially at risk of being eliminated, and that Alabama borrowers are thereby at risk as well. We write to you urgently counseling against the Consumer Financial Protection Bureau (“CFPB”) nullifying the Rule.

Here in Alabama, more than 32,000 payday loans are made every single week. These loans often include annual percentage rates (“APRs”) as high as 456 percent, and under current state law, payday lenders may require borrowers to fully repay the loans in as few as ten days. When lenders are not required to make any determination of a borrower’s ability to repay loans — let alone loans with such short terms and such high APRs — it does not take much imagination to predict the fates of many borrowers. In our years of experience working with payday loan borrowers in Alabama, one thing has become abundantly clear: without any ability-to-repay requirements, payday loans are a greater source of long-term debt than short-term credit.

In 2019, Alabama Appleseed published a comprehensive report about the impact of payday lending in our state (“Broke: How Payday Lenders Crush Alabama Communities”). We spent six months driving to every corner of Alabama, from Huntsville to Dothan, from Tuscaloosa to Mobile, from Jasper to Anniston speaking directly with borrowers and charitable service providers. Across geography, race, gender, age, and reason for borrowing, the message we heard was consistent: payday loans hurt more than they helped, and vanishingly few borrowers were able to repay their loans according to the contractual terms. In other words, most borrowers were unable to use the loans as advertised, and without any ability-to-repay requirements on the part of lenders, supposedly short-term loans standardly became long-term debts.

The Alabamians who we interviewed took out their loans to meet necessary living expenses. We spoke to a mother of two disabled children in Dothan, Alabama, who took out a $300 payday loan to bury her father. She was ruined by the debt. Another mother of twin daughters in Dothan took out a $200 payday loan to purchase back-to-school supplies. She ended up having to close her bank account to protect rent and grocery money because payday lenders were making direct withdrawals to service the debt they had trapped her in. We spoke to a disabled veteran in Marshall County, Alabama, who took out payday loans to access medical appointments in Huntsville. The outstanding debt has prevented him from affording medical equipment necessary to his recovery, and it has also kept him from being able to financially support his elementary-aged son. We spoke to a tornado victim in Madison County, Alabama, whose home was completely destroyed in a tornado. She still suffers from the payday loan debt she accrued trying to survive in the aftermath.

Charitable direct service providers across the state regularly encounter similarly untenable debts. In Tuscaloosa, the executive director of the local Habitat for Humanity shared the precipitous number of potential clients who cannot qualify for a Habitat Home because payday loan debt disqualifies them under the organization’s debt-to-income ratio standards. In Anniston, the director of a small direct assistance nonprofit shared that young mothers come through their doors all the time seeking help in the face of payday loan debt. In Jasper, the community action agency spoke of how residents of rural Walker County had lost their homes as a result of payday loan debt. In Huntsville, a legal services attorney explained that a large proportion of their clients come in the door with civil legal needs that, upon exploration, have payday loan debt as a root cause.

Alabamians deserve and need access to credit, but Alabamians do not need — and deserve better than — loans that are designed to fail and become sources of unworkable debt. Ability-to-repay requirements are a foundational business practice in virtually every other realm of consumer lending. It is a baseline, reasonable expectation. The CFPB’s introduction of this standard for payday and title lenders in the 2017 Rule was welcome, necessary, and overdue. The hurried elimination of this Rule being considered, after so long and deliberative a process, is ill-advised and not in keeping with the mission of the CFPB. Alabamians will be hurt if this rule is nullified, and we cannot be silent when our communities are at risk.

We ask that you take the time to familiarize yourself with our comprehensive report, which is freely available online in scrollable PDF format at www.alabamaappleseed.org/broke. We ask that you maintain the ability-to-repay standards introduced in the 2017 Rule. We ask that you go further and expand upon its protections for payday and title loan borrowers.

Alabamians need protections against predatory lenders who make bad faith loans and make hard times even harder for our people. We fight for those protections at the state level every single in Alabama. We ask that you do your part to protect us at the federal level, too.

by Dana Sweeney, Organizer

If you start asking around for people’s opinions of payday lending in Alabama, the responses will almost all follow along the same lines: that payday lenders are legalized loan sharks, that 456% APR interest rates are usury, that these shameless lenders prey upon and abuse the poorest Alabamians to make a buck. While conducting such a casual poll would quickly reveal the low opinion most Alabamians have of the payday industry, Alabamians who believe in responsible lending were recently bolstered by a new scientific poll published on the subject. It turns out that Alabamians really do not like payday lending, and we like it less every year.

As part of their annual, statewide public opinion survey, the Public Affairs Research Council of Alabama (PARCA) found that 84.1% of Alabamians believe payday loans should be restricted or banned in our state — a dramatic increase of 24.1% from last year’s results, which were already high. PARCA also found that fewer and fewer Alabamians accept the payday lending status quo. This year, fewer than 1 in 10 Alabamians thought payday loans are acceptable as they are currently issued.  

Payday lending has been unpopular in Alabama for years, but the last year has seen a sea change in public opinion on the issue. Alabamians favoring payday reform have become an overwhelming, bipartisan majority. In fact, at this point, an outright majority of Alabamians (52.6%) would like to simply see the industry banned entirely. About 80% of Alabamians believe that borrowers should be protected from high interest rates and debt traps even if it means reducing the profitability of payday lending businesses.

When considering what reforms would be sensible, Alabama voters are in near lockstep: Almost three-quarters of Alabamians believe that we should have a 36% APR rate cap, and about the same number think that payday lenders should be required to issue loans on a 30-day repayment schedule. The latter of these reforms, which enjoys the highest level of support among all options, passed the Senate last year as the 30 Days to Pay bill. It would better position borrowers to gather their finances and repay the loan on time, cut the APR interest rate in half for many borrowers, reduce the number of Alabamians who fall into the debt trap, and place payday loan bills on the same monthly payment schedule as virtually all other household bills. Advocates across the state including Alabama Appleseed hope to see the legislature revisit this popular reform in the upcoming session.

Payday lending reform is stratospherically popular among Alabama voters, and it is desperately needed for Alabama borrowers. It is past time for our legislators to listen to their constituents and do the right thing by passing payday lending reform. We will see them at the statehouse and in their districts to ensure that legislators place their constituents over this predatory industry.

For more information about PARCA’s findings, feel free to check out the report for yourself.

by Leah Nelson, researcher and Dana Sweeney, organizer

Payday industry supporters have often claimed that “neither the general public nor the so called ‘poor’ [are] clamoring” for payday lending reform in Alabama.

Actual borrowers might beg to differ.

Between October 2016 and September 2017, the State Banking Department reported that nearly 215,000 Alabamians took out 1.8 million payday loans – more than eight loans per customer, on average. Each of those loans represents an untold story of struggle where borrowers were forced to weigh the urgent need for cash against the prospect of repaying predatory lenders who charge interest rates as high as 456 percent APR and can demand full repayment within as few as 10 days.

Publicly available comments made by Alabama borrowers to the Consumer Financial Protection Bureau (CFPB) show that for some, payday loans turn out to be a far greater financial burden than what drove them to payday lenders in the first place. These self-reported stories offer a small but representative window into the horrors of predatory lending for many Alabamians.

Writing in March 2015, an individual who borrowed $300 from a payday lender said they were receiving harassing phone calls every day from a lender who was automatically deducting money from their bank account, leading to hundreds of dollars in overdraft fees and forcing them to close their account. “I paid out a lot of money to the Bank for these transactions, money they could have had if they would not have kept trying to debit my account. I am so tired of this and I don’t know nothing else to do except not answer the phone,” the borrower wrote.

In May 2016, a borrower wrote that their payday lender was threatening to track them down at work. “They call me all day every day and if I fail to answer them they will call my sister, aunt, mom and harass them too.”

“I ‘m having to pay over $1000.00 for a $400.00 loan that I was told was paid for and that my balance was $0.00,” a borrower who had paid off their loan in full, only to have their bank account garnished in connection with unpaid fees, wrote in February 2017. “This is absolutely insane. How is this not illegal?”

“I was making payments until I lost my job and I contacted agency to see if I could postpone my payments until I began working again they refused my attempt and I haven’t heard from them since until today I received an email threatening to arrest me,” wrote an individual in May 2017.

“Been paying this company 2 payments every 2 weeks. They was only surposed to get 1 payment a month but taking out 2 every 2 weeks,” wrote another in May 2017. “I can’t pay my regarler bills because of this.”

“Though I do work full time I am struggling to pay off debt,” a single mother who was working with a debt consolidation program to pay off her various creditors, wrote in July 2017. The payday lender, she wrote, “has called my phone, my job, friends and family relentlessly!!   They harass me on a daily basis!! I told them about me going through the debt consolidation place and they got very very nasty, saying they aren’t participating in this program, and demanding Money NOW!!”

The CFPB did what it could to follow up with lenders and help customers resolve, or at least gain clarity, about what was happening to them. A handful of cases were “closed with monetary relief.” But the majority were “closed with explanation” – that is, the only relief the borrower received was an understanding of why the lender was allowed to do what it was doing.

For desperate people seeking help with unmanageable debt, that’s no relief at all.

In Alabama, borrowers continue to find themselves crushed by rapidly ballooning debt traps and loans continue to be issued with triple-digit APRs. Many other states have passed successful reforms, including our Southern, business-minded neighbors in Georgia, Arkansas, and North Carolina, which eliminated payday lenders entirely without significantly impacting borrowers’ access to cash. But our legislature failed again this year by refusing to pass the simple 30 Days to Pay bill, even though the status quo harms thousands of Alabamians and other states have demonstrated that responsible reform is possible. That’s why predatory lending reform is supported by a diverse coalition including Alabama Appleseed, the State Baptist Convention, the United Methodists, the Episcopal Diocese of Alabama, the Huntsville Chamber of Commerce, the Southern Poverty Law Center, and the Birmingham Business Alliance. Here in Alabama, that’s about as broad-based as it gets.

And we need our state leaders to listen now more than ever. At the national level, new leadership at the CFPB has steered the agency away from its mission of protecting consumers from abuse by large banks and corporations. Recent months have seen the CFPB refusing to enforce the federal judge-ordered punishment of a payday lender caught stealing millions of dollars from its customers, musing about eliminating basic guardrails meant to keep payday lenders from scamming borrowers, and even proposing that public comments made to the CFPB by consumers—like those featured in this article—be hidden from the public. Alabama lawmakers can no longer wait or depend on the CFPB to fix an issue that was created by the Alabama State Legislature. Lawmakers’ earliest opportunity to address this issue will be the upcoming 2019 Legislative Session, and after failing Alabamians again and again, they should finally take it.

Until then, though, Alabama borrowers will have to wait yet another year for relief – and payday lenders will get another year to line their pockets by fleecing our communities. Let’s make sure that they won’t be made to wait again.

by Leah Nelson, Researcher 

In 1972’s Furman v. Georgia, the U.S. Supreme Court ruled that death penalty schemes that led to arbitrary results – for instance, those that allowed similar offenses committed by similar individuals to lead to different sentences – were unconstitutional. The result was a de facto moratorium on the death penalty nationwide, while states worked to make their laws more just.

Four years later, in Gregg v. Georgia, the high court decided that the death penalty itself can be constitutional, provided that it was meted out only in clear, objective, and limited sets of circumstances, reviewable on appeal, and where the sentencer was permitted to take the defendant’s character and history into account when deciding whether to impose a sentence of death.  

Fast forward to today in Alabama.

There are 19 capital offenses under Alabama law –  each a distinct type of murder for which the death penalty can be sought. There are also 10 aggravating circumstances, which can be offered to a jury for consideration as it decides whether or not to impose a death sentence after finding a defendant guilty. Between them, the two sections make it possible for almost any homicide, committed under nearly any circumstance, to result in a death sentence.

This past legislative session, lawmakers considered a bill that would have created an additional aggravating circumstance. HB 161, sponsored by Rep. Chris Sells (R-Greenville), would have added to both sections, making the murder of a first responder operating in an official capacity a capital offense and adding three victim types – law enforcement officers, first responders, and children under 14 – to the list of aggravating circumstances.

The bill passed in the House, but failed to pass the Senate. It did not become law, nor should it. HB 161 would have expanded Alabama’s broken death penalty system. This fact is no less true today than it was in 2006, when eight distinguished Alabama attorneys comprising the American Bar Association’s Alabama Death Penalty Assessment Team concluded, bluntly, that “the State cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed.”

In its report, the ABA Assessment Team identified seven problem areas in desperate need of reform, including:

  • Inadequate indigent defense services at trial and on direct appeal;
  • Lack of defense counsel for state post-conviction proceedings;
  • Lack of a statute protecting people with intellectual disabilities from execution;
  • Lack of a post-conviction DNA testing statute
  • Inadequate proportionality review (i.e., inadequate review of disparities in imposition of the death penalty across socio-economic, geographic, racial, or other lines);
  • Lack of effective limitations on the “heinous, atrocious, or cruel” aggravating circumstance (i.e., a failure to require prosecutors to prove that a particular capital murder was grimmer than most before invoking this aggravator); and
  • Capital juror confusion (specifically, research at the time showed that a majority of Alabama capital jurors interviewed misunderstood basic principles about their role and responsibility with regard to deciding whether a death sentence was called for, suggesting that jurors are recommending death sentences based on serious legal errors).

To date, the state has implemented only one of the assessment team’s primary recommendations – the elimination of an Alabama law that allowed judges to override jury recommendations of life without parole in favor of death. The rest have languished, while the state’s machinery of death chugs grimly along.

Since the report’s release in June 2006, the state has executed 29 people. Five of them were killed in the last year alone.

The ABA Assessment Team in 2006 called on Alabama to impose a moratorium on executions. As they stated:

“Regardless of one’s feelings about the morality of the death penalty, we all understand that, as a society, we must do all we can to ensure a fair and accurate system for every person who faces the death penalty. When a life is at stake, we cannot tolerate error or injustice. The Alabama Death Penalty Assessment Team found a number of problems in the state’s death penalty system that undermines its fairness and accuracy. Highlighted below are proposed areas for reform that would help to improve the system. Until these reforms are implemented, a temporary moratorium on executions should be imposed.”

The virtues of the death penalty may be debatable, but the merits of fairness and accuracy are not.

The state of Alabama should not carry out one more execution, nor tinker further with its death penalty laws, until and unless it addresses the gaps that led the ABA team, over a decade ago, to condemn the system’s failures.

by Dana Sweeney, Organizer

There are more payday lenders and title loan stores in Alabama than hospitals, high schools, movie theaters, and county courthouses combined. Payday lending by itself is a massive industry that harms hundreds of thousands of Alabama borrowers and their families each year.  

Each year, the payday lending industry leeches more than $100 million from the pockets of low- and middle-income Alabama borrowers. Lenders make their biggest profits by snaring borrowers in devastating debt traps. While payday lenders advertise quick and easy access to cash, the fine print on their loan products include APR interest rates up to 456%. With astronomical rates like that, small-dollar, short-term loans frequently become expensive, multi-year burdens for Alabamians. To make matters worse, most of the money that payday lenders make by trapping Alabamians in rapidly ballooning debt—an estimated $1 billion each decade—flows out of our communities and into the pockets of companies headquartered out-of-state. When these vampiric lenders sap our neighbors’ household budgets and drain money from our local economies, we all lose.  

This year, Alabama Appleseed joined with other predatory lending reform advocates to advance the 30 Days to Pay bill (SB 138, sponsored by Senator Arthur Orr, R-3). Under current law, payday loans can be issued with full repayment due in as few as 10 days. The 30 Days to Pay bill would have required payday lenders to issue loans on a 30 day repayment schedule, as is standard for virtually all other household bills. It would have significantly reduced the risk of borrowers falling into long-term debt traps by granting them more time and flexibility to repay loans, and it would have effectively cut the APR interest rate experienced by most borrowers in half (which, while remaining a deeply troubling triple-digit interest rate, would nevertheless be a substantial improvement over the current 456%).

A broad coalition of organizations joined Alabama Appleseed in advocating for the passage of SB 138, including business partners like the Birmingham Business Alliance, the Huntsville Chamber of Commerce, and the Alabama Credit Union Association, and faith partners like the State Baptist Convention, the Episcopal Diocese of Alabama, and Greater Birmingham Ministries.

Unfortunately, despite broad popular support for payday reform, the legislature failed to pass SB 138. After inching through the Senate Banking & Insurance committee over the course of several months, SB 138 ended up passing the Senate on March 8, 2018, with a 20-4 vote. It then moved to the House, where Speaker Mac McCutcheon assigned it to the Financial Services committee. Even though many committee members expressed a desire to vote on the bill, Chairman Rep. Ken Johnson (R-7) refused to bring the bill up for a vote. The 30 Days to Pay bill died right where many other payday reform bills have died before it: in the House Financial Services committee.

The end of the 2018 legislative session marked yet another year in which our state lawmakers failed to protect Alabama borrowers while payday lenders lined their own pockets with cash. While most legislators have said that they support predatory lending reform, friends of the payday industry again blocked a limited reform.

The legislature’s failure to pass SB 138 was deeply disappointing, but Alabama Appleseed will continue to fight for predatory lending reform alongside impacted borrowers. Predatory lending reform remains one of the most bipartisan, popular issues in the state, and we will continue to press our officials to do what their constituents have been asking them to do for many years. We will continue to advocate for reforms like 30 Days to Pay, and we remain committed to seeing Alabama move to the gold standard of a 36% APR maximum for all small loans that is seen in many other states.

by Dana Sweeney, Organizer

For years, there has been widespread, bipartisan agreement that we must reel in predatory payday lenders in Alabama. According to data collected by the State Banking Department, about 215,000 Alabamians took out 1.8 million payday loans between October 2016 and September 2017, averaging more than eight loans per customer. Even though payday borrowers must be able to show that they have a source of income before being issued a loan, 87% of payday borrowers in Alabama still had to take out multiple, small-dollar loans during the year to get by — almost always to meet necessary living expenses like rent, utilities, and grocery bills, or to account for emergencies like unexpected medical costs or car repairs.

As too many Alabamians know, those small-dollar loans often balloon into large-dollar debts due to high interest rates. Alabama’s payday borrowers pay over $100 million every year on average in loan fees charged to initiate loans and to “roll them over” when full repayment is not possible. There is wide-ranging public agreement that the status quo for payday lending must change, especially when that status quo means that predatory lenders issue loans with interest rates as high as 456% APR and can demand full loan repayment within as few as 10 days.  

This year, Alabama Appleseed has been working with a broad coalition of churches, community foundations, local organizations, credit unions, direct social service providers, and individuals that spans the state and the political spectrum. We are supporting the 30 Days to Pay Bill (SB 138), a simple, modest reform that would set payday loans on the same 30 day repayment schedule as all other household bills. It would start to curb runaway interest rates and prevent many of the debt traps that currently ensnare thousands upon thousands of Alabamians every year. It enjoys bipartisan support in the legislature, and it is an opportunity for the legislature to finally take a step forward on predatory lending reform after years of failing to deliver. All we need now is the chance for senators to vote on it.

The bill has been slowly inching its way through the Senate, but it has not yet been put on the calendar to be debated and voted on. If this bill doesn’t start picking up steam soon, we may run out of time — again — to protect Alabama’s payday borrowers. Alabama deserves a vote. Alabama’s borrowers deserve a vote. We urge you to contact your senator and ask them to do everything in their power to propel this bill forward.

SAMPLE CALL SCRIPT

“Hello, my name is _________________, and I am one of Senator ____________’s constituents from ______[town]_______. I’m calling today because I would like to urge Senator ___________ to do everything in [his/her/their] power to ensure that SB 138, the 30 Days to Pay Bill, passes through the Senate. So many of us have been patient and persistent all session while waiting for this bill to advance through the Senate, just as we have been waiting for years for the legislature to deliver on predatory lending reform. We have waited long enough, and so have Alabama’s borrowers, who continue to suffer because of the legislature’s failure to address this issue. Please let Senator ________ know that SB 138 is a top priority for me as a voter, and that I want to see [him/her/them] doing everything in [his/her/their] power to support and advance this bill. It is bipartisan. It is simple. It is overwhelmingly supported by the public. We deserve a vote, and Alabama’s borrowers deserve relief. Thank you.”

SAMPLE EMAIL SCRIPT

“Dear Senator ____________,

I am writing you to urge you to do everything in your power to pass SB 138, the 30 Days to Pay Bill, through the Senate. As someone who lives in _____[town]______, I know how damaging predatory lending practices are to our community, and as a voter, one of my top priorities is seeing SB 138 passed. So many of us have been writing and calling during this legislative session, and there has been bipartisan agreement that we need predatory lending reform for years. It’s past time that something is done, and it’s past time for the Senate to vote on SB 138. Please work with your colleagues to pass this bill as soon as possible, as we are running out of time — again — to pass reform that protects Alabama’s borrowers from predatory lenders. This bill is simple and overwhelmingly supported by the public. We deserve a vote, and Alabama’s borrowers deserve relief. I will be looking for your leadership on this. Thank you.

Sincerely,

_______________”

Make your voice heard! It can make the difference. 

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.

Eight times since 1976 the state of Alabama has sent a person to death row and gotten it wrong. One of those exonerees, Anthony Ray Hinton, spent almost 30 years on Alabama’s death row before his volunteer lawyers were able to show that the government relied on flawed evidence – that he was innocent. Mr. Hinton’s case shows that it can take years to uncover evidence of innocence. Despite this knowledge, last week the Alabama legislature voted to “streamline” Alabama’s death penalty process. As Mr. Hinton wrote last month, had SB 187 been in place while he sat on death row, he would likely have been executed despite his innocence.

Regardless of where each of us stand on the death penalty, 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. Unfortunately, Alabama legislators disagreed.

Proponents of this legislation, including Alabama’s new Attorney General, are using one of the oldest tricks in the book to gain support . . . fear. In  a recent op ed by Attorney General Marshall, he began by retelling the gruesome facts surrounding a 37 year-old murder. In General Marshall’s death penalty narrative, the government always convicts the right person. It’s a perfect justice system (found in the fiction aisle). According to the Attorney General’s logic, if the facts are gruesome then justice must be swift, regardless of those pesky innocence issue.

In reality, SB 187 – the so-called “Fair Justice Act” – would:

  1. Undermine the ability of post-conviction counsel to fully defend their client by limiting their ability to conduct a thorough investigation, thus increasing the likelihood that Alabama would execute an innocent person (e.g. under this bill the direct and post-conviction appeals must occur at the same time, making it impossible for the post conviction counsel to properly investigate whether the direct appeal counsel provided ineffective assistance of counsel); and;
  2. Fail to ensure the appointment of qualified counsel at the post-conviction stage, thus compounding the issues surrounding ineffective assistance of counsel that already plague the trial and direct appeal stages.

While the facts surrounding a murder may be gruesome, they are reiterated to distract us – to make us forget what the legislation before us would actually do, which is to prioritize rushing to an execution over ensuring the accuracy of the conviction. The impact of SB 187 is clear – it would make it more difficult for an innocent person to prove their innocence. And, as Jennifer Thompson from Healing Justice pointed out, when an innocent person sits in prison, the actual guilty person remains free to commit additional crimes.

We’re not the only one to raise a red flag around this legislation – here’s a snippet of the widespread opposition to SB 187:

  • Linda Klein, President, American Bar Association – “The American Bar Association takes no position for or against the death penalty itself, but our members – who include prosecutors, defense lawyers, and judges – have long been committed to ensuring that capital punishment is fair, unbiased, and accurate. Our expertise provides us with a unique perspective regarding the likely pitfalls and unintended consequences of this legislation.”
  • Anthony Ray Hinton, Death Row Survivor – “I spent 30 years on Alabama’s death row for a crime I did not commit. If proposed changes to Alabama’s postconviction procedures under consideration by the state legislature had been enacted, I would have been executed despite my innocence.”
  • Jennifer Thompson, Founder, Healing Justice – “By prioritizing speed of the death penalty process over accuracy, SB 187 will not only place unnecessary pain on victims and survivors but also undermine the safety of others. Every day an innocent person sits in prison, the guilty person is free to commit additional crimes.”
  • Montgomery Advertiser Editorial Board – “Alabama legislators this past week wrongly approved a bill that shortens the appeal process for people convicted of a capital crime and facing an execution. Too much is at stake to take decisions of execution lightly. Mainly, it’s someone’s life and when the state makes the choice to kill a person, we are all responsible for that death.”
  • Ronald Sullivan Jr., Professor, Harvard Law School  – “The deceitfully named bill (it is neither fair nor just) would shorten the time for appeals and reduce already inadequate resources that death row prisoners have when appealing their convictions. Alabama has clearly put its head in the sand and is ignoring its own disgraceful experience with wrongful convictions and the death penalty, as well as current recommendations from other states.”
  • Lisa Borden, Attorney in Birmingham – “While this may sound like a good plan to those unfamiliar with the process, the proposal is neither fair nor just, and will only increase the already substantial likelihood that Alabama will execute a wrongfully convicted person.”
  • Stephen Cooper, Former Assistant Public Defender in Alabama – “Conscientious Alabamians concerned that, like Ray Hinton, freed after a hellacious 30 years on Alabama’s death row proclaiming his innocence, additional innocents might be unjustly thrust towards terrible and inhumane deaths – without an adequate chance to prove their innocence and/or that their constitutional rights were violated – you need to speak up. You need to speak up now!”

The awesome power of the government to kill in our name must be based on a fair and accurate process. SB 187 would do the opposite. We urge Governor Ivey to veto this legislation.

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.

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.