The Alabama District Attorney's Association (ADAA) has put together seven pieces of legislation for lawmakers to consider during the 2023 regular legislative session. The "Alabama Fights Crime" package includes amendments and new laws focusing on violent crime, fentanyl, retail theft and the state's Class D Felony sentencing guidelines.
Daryl Bailey, the Montgomery County District Attorney and president of the ADAA, said violent crime is among the top concerns.
"The main piece of our package is going to be violent crime," said Bailey. "This has obviously plagued the state of Alabama. We have, especially in our major metropolitan areas, we've seen just so much violent crime and continue to. Being the District Attorney in Montgomery County, pending in my office right now, we have pending approximately 300 homicides, and it just doesn't seem like it's going to slow down. So, violent crime is extremely important to our association and to make sure we have the tools to fight violent crime."
Under current Alabama law, it is illegal for someone who has been convicted of a violent offense to possess a firearm. Those crimes include rape, robbery and murder. Bailey said there needs to be mandatory jail time for those offenses because, as it is right now, judges have the ability to give probation for those offenses and apply good time to sentences.
"So, we believe that this legislation would send a message to these criminals that we in Alabama are serious about tackling this violent crime issue," Bailey said.
The legislation would add a mandatory five years to a sentence. The law would be similar to federal law, which, executive director of the Alabama District Attorney's Association and State Office of Prosecution Services Barry Matson said agents on a federal level are not always able to keep up with.
"They're just not picking up these cases anymore," Matson explained. "They do some, but you see drive-by shootings, guns with robberies, you see it all over social media. Even somebody with a prior conviction for murder and they are out with an automatic weapon shooting at neighborhoods, and federal authorities just can't process those."
Matson said he believes everyone should support this legislation.
"We believe that gun advocacy groups, law enforcement and victims of crime, we think there will be broad support," Matson said. "We know the legislature is going to be focused heavily on public safety this time, and I appreciate that."
If you use a gun in a violent crime, the proposed legislation would also add a mandatory 10 years.
"So if you use a gun with a murder, rape or robbery or other violent crime, you would get a 10-year enhancement, and that would be day-for-day," added Bailey. "Not only does it send a message to the criminals, but it sends a message to our citizens that our government is serious about addressing these issues. They are crying out every day for us to do something, and this will show that we are serious about it."
The ADAA also wants to change laws concerning fentanyl. After fighting the opioid epidemic for years, the district attorneys are ready to take a stronger stance on fentanyl prosecution in particular.
While many users of opioids are unaware that the people making the drugs are slipping in deadly amounts of fentanyl, Matson said he has seen firsthand how cartels in other countries are producing mass amounts of product and killing Americans.
“This is cartel fentanyl,” Matson said. "Precursors come from China. They go to Mexico, along with methamphetamine. They're made there, and then it's smuggled into the United States. It comes into our country, and bulk and thousands of people are dying. If Mexico or China sent in a rocket to kill 300 people in Birmingham last year, we would be addressing this differently, but because it was 300 people who overdosed over a period of time, it's just not on people's radar."
Proposed legislation that has already been introduced by State Rep. Matt Simpson (R-Daphne) would add mandatory minimums for drug traffickers using fentanyl as a single component.
Existing law provides only for fines concerning the unlawful sale, manufacture, delivery, or possession of fentanyl as a single component. This bill would provide for mandatory terms of imprisonment for a person who engages in the unlawful sale, manufacture, delivery, or possession of one or more grams of fentanyl as a single component. This bill would also impose additional criminal penalties for subsequent violations.
One gram or more but less than two grams would equal three years in prison and a minimum fine of $50,000. Two grams or more but less than four grams would mean 10 years in prison and a minimum fine of $100,000. The penalties continue to increase to include a minimum prison sentence of life and a fine of $740,000 for eight grams of fentanyl or more. There are also extra penalties for repeat offenders.
"I think fentanyl is a weapon of mass destruction," said Matson. "I am sick of our federal government's inaction on this. But as a state, we passed a law in 2020 for trafficking, but we weren't able to get all trafficking statutes in Alabama to have a minimum mandatory sentence."
Other components of the proposal include a statute punishing those who expose first responders to a dangerous drug and an amendment to make it easier to identify the seller of a drug that caused the death of another person.
"We think the three ideas we have for fentanyl will have a very big impact," Matson said. "We are doing a lot of training and as much as we can on the criminal justice side, but I think more needs to be done on the prevention and education side as well."
Another part of the package focuses on retail theft. Matson said these crimes have a huge economic impact on communities.
"It's a $100 billion criminal enterprise right now," Matson explained. "We say, 'organized retail theft.' These are cartel-level international, transnational groups that focus on big box and small retail stores. They will come into an area and have hundreds of people working in that organization and come in and clear out certain products. These are sophisticated plans. They come I, and they are killing business."
The ADAA has recognized even stores such as Walmart have had to shut down because of thefts. Large chains and mom-and-pop stores have been forced to close in Alabama communities because of the loss.
"You shouldn't have to factor in stealing as a cost of doing business; that's not right," Matson continued. "But they are having to pass that cost onto customers. So, citizens in Alabama are paying 10, 12, 13% more for products because of this. So, everyone in Alabama is impacted, and we have got to get a hold of it."
Along with technology, Bailey said "Skip-Scanning" has become a problem with self-checkout lanes. People skip scanning some products, bag them and act as if they paid for everything. Bailey believes the price tag on those items for merchants is getting out of control.
"We have a corporate headquarters call us here in Montgomery County and ask us what they need to do," said Bailey. "They say that it has become non-profitable to operate a business here. We don't want that. We want businesses in Alabama to be profitable so they can provide for their families and the economy."
In Alabama, there is no racketeering statute, also known as a RICO (Racketeer Influenced and Corrupt Organization) law. While those involved in these organizations can be charged with crimes, as a whole, the ADAA believes creating a stricter law focusing on the broad impact would benefit investigations and prosecution and ultimately ensure criminals pay the price they deserve.
"We also want to create a theft by shoplifting, which is a separate statute that is specific to retail merchandise," Matson added. "Retail merchandise is kind of defined in that.
"Also, we don't want to just pass a law and say, 'that fixes it," Matson said. "We really need to get together and do training after we have the laws to enforce it. We're hoping once these bills pass that we can start the process of training law enforcement to better identify and handle these organized retail groups that come in."
Class D Felony Changes
In 2015 when Alabama created the Class D Felony charge, Matson and Bailey said it came with challenges. Now, people who are charged with a Class D do not have to attend specialty courts they may need, and they cannot be sentenced to jail time.
"What's crazy is, you can be convicted of a misdemeanor and go to jail," Bailey explained. "That is crazy. The criminal justice system is set up for discretion. Whether it's the prosecutor who sets up the charges, whether it's the judge who presides over cases and does sentencing. But what that Class D felony did is it took everybody's discretion away, and that's never good. Some offenders we see need more than others, whether it's sentencing, time or more time in diversion than some other person. So, taking the discretion away was a huge mistake that needs to be corrected."
Matson said it is time to return discretion back to the court on Class D Felonies.
"The judge has the option to at least threaten the person with jail," Matson said. "It's not that we want to send them to jail for stealing $1,000 but we want them to stop doing that. If we can moderate that behavior through drug court intervention and we do those things, and the DAs support those programs and are active participants in those programs, that's great. But the problem is, we can't do that anymore. So, they're just committing more and more felonies. There needs to be an incentive to stop making a job out of stealing. I have no tolerance for a thief, and I tell people in the public there is a felony where you can't go to jail, and they can't believe that."
Bailey believes specialty courts, such as drug courts, mental health courts and veterans' courts, are unable to help those they were designed to assist because there is no incentive to go through those programs.
"What we've seen here is that our specialty courts are dying on the vine because the way they work is, you go into the program and if you do right, get your GED, stay crime-free, try to get drug treatment if that's the problem, get mental health treatment if that's the problem," he said. "And then, at the end of that, we can dismiss the case, there is an incentive there. Now, we're seeing defendants not choose these courts because just getting probation is the best choice."
Lawmakers just completed a special session and will return for the 2023 regular session on March 21.
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