New guidelines equalize sentences, lean heavily on probation

Earlier this year, a person who went before an Alabama judge on a third DUI conviction would have faced jail time.

Today, a third DUI conviction only means probation.

The reason? New sentencing guidelines designed to make sure punishments are similarly applied and to ease prison overcrowding.

The punishment of those convicted of many nonviolent theft and drug charges that historically have meant decades-long prison sentences also has been reduced.

And while district attorneys across the state – like Covington County DA Walt Merrell – are against the law, defense attorneys like Andalusia’s Manish Patel say the law is about treating people fairly.

On Thursday a group of more than 20 local attorneys, as well as the county’s two circuit judges, gathered for a presentation on how to implement the guidelines. Written by the Alabama Sentencing Commission – a now 21-member group comprised of district attorneys, crime victims, attorneys and others – to improve consistency and stabilize the state’s overcrowded prison population, the guidelines set out punishment that often is lighter for nonviolent offenders.

Reports show that the guidelines are designed to stabilize the prison population, and within five years, if all goes according to plan, the prisons will release as many inmates as they accept.

There have been complaints by prosecutors and some judges that the guidelines take the court’s discretion out of the system. The guidelines were developed beginning in 2000 and went into effect in 2006 as “voluntary.” In 2012, the Alabama Legislature agreed to make the guidelines “presumptive” meaning they would be applied unless compelling reasons were found to deviate from the guidelines. That means that under the new rules, judges are required to use a worksheet to sentence certain drug and property offenders within a narrow range unless they can cite one of a handful of aggravating factors. The guidelines are calculated based on the nature of the offense and the defendant’s criminal record. Defendants may appeal if judges exceed the recommended punishment.

Some may ask, “Why not build more prisons?” Rosa Davis of the Attorney General’s office and Thursday’s presenter said the reason against that is, “It comes down to money.”

Davis said there are currently 26,000 inmates in the state prison system, “and the number goes up daily.”

“It costs $225-$275 million to build a prison and another $23-$25 million a year to operate it,” Davis said. “If we built one, it would fill up the day it opened and it wouldn’t do a thing to change the landscape. We’d probably have to build five, and the money is just not there to do that.”

Davis said the state’s answer was the new sentencing guidelines – guidelines that Merrell oppose.

“It obviously removes the discretion that a DA and a judge had in sentencing criminals,” Merrell said. “Here’s an example, if you steal a junk car out of someone’s pasture, that’s a theft of property I by statute. If you steal a police car from the station, that’s theft of property I by statute.

‘Under the new sentencing guidelines, you have to treat those two crimes identical, and I have a problem with that,” he said.

Merrell said he believes the measure will “unleash a criminal population on society.”

“I was confronted this week by a 20-year-old who said, ‘You will never rid this county of drugs now because all the drug dealers are going to get probation,’” he said.

“And while that’s not entirely true, it’s pretty close,” he said.

The Alabama District Attorneys Association has been openly critical of the guidelines and is working on proposed amendments to them.

Rep. Mike Jones said he supported the bill, as did Sen. Jimmy Holley.

“The intent of the sentencing guidelines was to create consistency in punishments for crimes across the state,” he said. “That means if you commit a crime in Huntsville, the sentence should be consistent for those convicted of the same crime in Opp or wherever. “The rules were created by a group of premier experts in the state,” he said. “It was time for us to do this. It was the right thing to do.”

Jones also said it would have been virtually impossible for the state to build the additional facilities that would have been necessary if the guidelines had not changed.

“Right now, we are still in a very cautious scenario,” Jones said.

States with prison overcrowding have been approached by the federal government, and in some cases, ordered to release inmates to ease the prison population problem.

“We haven’t had that happen,” Jones said.

“At a time when we are really stretching pennies, and working to live within or means, it would be difficult to start going down the path of building prisons.

“We have to make choices,” Jones said.

Patel said that it will take time to grasp the full extent of the new guidelines.

“On a personal level, I feel that it’s all about trying to treat people fairly across the board,” he said. “I don’t believe that someone charged with the exact same thing in the county next to us should be treated vastly different from a person in our county.”

Patel said he understood the economics behind the commission’s decision.

“The reality of it is that we only have so many prisons,” he said. “We haven’t build a new prison in Alabama in decades, and we can’t put everyone in prison. We don’t have the space.”