Warm Southern Breeze

"… there is no such thing as nothing."

Alabama State Legislature Could Undo DOJ-ADOC Tutwiler Agreement & Force Federal Takeover

Posted by Warm Southern Breeze on Friday, May 29, 2015

To The Reader:
If you are not a regular follower of Alabama politics, some, or perhaps most, of the items mentioned herein may very well be alien to you. Yet even if you are – even to a small extent – an adherent of the same, it very well may still be strange to you. It’s strange to most… save for those who wallow in such mire, namely, the Alabama Legislature and politicians in Alabama.

What I write herein this blog, and this entry in particular, contains fact, and opinion. It’s difficult to NOT have opinion when faced with facts… particularly when innocent lives are at stake. And innocent lives ARE at stake in Alabama.

I ask your indulgence.

From Day One of his first term in office (January 17, 2010) Alabama Governor Robert Bentley’s administration has been pockmarked with allegations of corruption, wrong-doing, violations of Federal Law, incompetence, lies, thefts, and deceptions.

I have written and opined about Governor Bentley’s bald-faced lies from his first campaign for governor (Alabama Governor Bentley Broke 20 Promises From 2010 Campaign), and his propensities and predilections toward falsehoods are well-documented in other news media from his campaign for a second term as governor, and after his re-election.

Examples include:
23-Felony Ethics Count indicted Rep. Mike Hubbard (R-Auburn) re-elected GOP Speaker of the House
Rep. Greg Wren (R-Montgomery) plead guilty to misdemeanor Hubbard-related ethics charge and resigned his House seat
Rep. Barry Moore (R-Enterprise) charged with perjury and false statements related to Lee County grand jury in January in Hubbard case
Moles in GOP Attorney General Luther Strange’s office attempting to corrupt Hubbard’s prosecution
Prison rapes & long-term cover-up of criminal wrongdoing at Julia Tutwiler Prison for Women, and Alabama Department Of Corrections (ADOC)
ADOC purchased on the black market medicines to be misused for execution, which the FDA seized
ADOC neglected prisoners’ minor healthcare problems, which lead to their death
Legislature reneged repayment on money “borrowed” from Alabama Trust Fund

Facing an immediate General Fund Budget shortfall of $250 Million, and a projected $750 Million long-term deficit, shortly after re-election to a second term, Governor Bentley reneged on a campaign promise to not raise taxes. The most fearfully pressing of the concerns remains the prospects of a Federal take-over of the Alabama Department of Corrections (ADOC). At 200% capacity, and grossly understaffed, the ADOC is still teetering upon the precipice of a Federal take-over by the Department of Justice. The DOJ took over California’s Prison System with with much less overcrowding, approximately 140%.

The DOJ sent Governor Bentley a 36-page “love letter” dated January 17, 2014 which was entitled Investigation of the Julia Tutwiler Prison for Women and Notice of Expanded Investigation in which they detailed numerous counts of prisoner abuse, sexual abuse of prisoners, criminal activity by guards upon inmates, and other horrific crimes against humanity.

USDOJ Tutwiler ADOC Findings 1-17-14

Only today, Governor Bentley crowed about reaching a 65+ page Settlement Agreement with the DOJ in which ADOC and the State of Alabama promised to “implement all policies and procedures required by the agreement within nine months of the effective date of the Agreement,” and which “will terminate when Defendants have achieved substantial compliance with each provision of the Agreement, and have maintained substantial compliance for three consecutive Court-filed compliance reports.”

ADOC-DOJ-Settlement-Package-05-28-15

While there is a nine month implementation time line, there is a possibility of a one-time extension of three months, which could effectively give a deadline of 12 months. “Unless otherwise specified in this Agreement, ADOC and Tutwiler shall have fully implemented, including the training of staff, all policies and procedures required under this Agreement within nine months of the Effective Date. The Monitor may grant ADOC an extension of time to meet a particular deadline, not to exceed three additional months.”

Jennie Lancaster, Monitor for Julia Tutwiler Women's Prison

Jennie L. Lancaster, Monitor for Julia Tutwiler Women’s Prison

Jennie Lancaster has been jointly appointed by DOJ, ADOC & the State of Alabama to be the Monitor “to assess and report whether the provisions of this Agreement have been implemented, and whether this implementation is resulting in a reduction of incidents of sexual abuse and sexual harassment and professional treatment of inmates.”

Jennie L. Lancaster is the retired Chief Operations Officer for North Carolina Department of Corrections and served from 2012 – 2013 as Chief Deputy Secretary – Adult Correction.

The “Monitor’s fees and expenses will be borne by ADOC and Alabama,” and “will provide the Monitor a budget sufficient to carry out the responsibilities” described in the agreement, and may “contract or consult with other persons or entities to assist in the evaluation of compliance.”

The Monitor is wholly independent of USDOJ, ADOC or the State of Alabama, and “neither ADOC, Tutwiler, DOJ, nor any of their staff or agents shall have any supervisory authority over the Monitor’s activities, reports, findings, or recommendations.”

The strange, sad irony with the bitter sting of truth, is that the Alabama Legislature has NOT struck a budget for the upcoming fiscal year 2016, and if the Legislature does not provide enough money to perform EVERY SINGLE SOLITARY ITEM to the ‘T’ in the Settlement Agreement, the USDOJ will come in and place the entire ADOC into receivership (aka “Federal Takeover”) and then, they won’t give two hoots in Hell about where the money comes from to do what must be done to correct any problem – only that it shall be done, no questions asked, no permissions requested – it SHALL BE DONE.

California’s Prison System was placed into Federal Receivership with 140% capacity, and the United States Supreme Court upheld lower courts’ rulings that California MUST reduce their prison population, because it violated the Eighth Amendment’s ban on cruel and unusual punishment. Alabama’s Prison System is at 200% capacity.

The reforms in Alabama are estimated to cost $26 Million annually.

Governor Bentley has briefly outlined the negative prospects of a bad budget (i.e., not just any old budget will do) by in a letter to the Legislature dated April 21, 2015.

Alabama Bentley Memo Legislature-RE-Budgets

Now, the reason this matters, and the problem(s) facing Alabama are myriad – and EVERY problem known and identified has been well-known, and expertly identified by the Legislature, news outlets, elected officials and citizens statewide. It’s not new, it didn’t happen overnight, last week, last month, or even last year. It has been an ongoing bugaboo of significant duration – meaning since 1901, which is the date of the Alabama State Constitution.

Before Governor Bentley was elected in his first term, he was an ineffectual, mamby-pamby milquetoast sop of a State Representative from Tuscaloosa, and as a member of the Legislature was certainly keenly aware of the budgetary and fiscal problems facing Alabama… as was every other Legislator, Representative or Senator. As Governor, he has been that in droves, and more. And yet, since he was elected to his first term, he and the GOP-dominated Legislature have steadfastly refused to come clean with the people about the dire fiscal straits in which the state finds itself, have similarly steadfastly refused to acknowledge the problem exists, and thereby have refused to imagine any potential solution to remedy the situation.

At the risk of boring you, the reader, here is a somewhat simplified overview of Alabama’s complex budgeting scenario.

The state has more than one budget. Again, that is a throw-back (translation: REQUIREMENT of) to the state’s 1901 Constitution which requires separate budgeting. Further, the state’s 1901 Constitution also mandates that the Legislature SHALL pass a budget BEFORE any other business is conducted. Article IV Section 71.01 states:
(C) The duty of the legislature at any regular session to make the basic appropriations for any budget period that will commence before the first day of any succeeding regular session shall be paramount; and, accordingly, beginning with the first regular session held after January 1, 1983, no bill (other than a bill making any of the basic appropriations) shall be signed by either the presiding officer of the house or senate and transmitted to the other house until bills making the basic appropriations for the then ensuing budget period shall have been signed by the presiding officer of each house of the legislature in accordance with Section 66 of this Constitution and presented to the governor in accordance with Section 125 of this Constitution; provided, that this paragraph (C) shall not affect the adoption of resolutions or the conduct of any other legislative functions that do not require a third reading; and provided further, that following adoption, by vote of either house of not less than three-fifths of a quorum present, of a resolution declaring that the provisions of this paragraph (C) shall not be applicable in that house to a particular bill, which shall be specified in said resolution by number and title, the bill so specified may proceed to final passage.

Further, the State’s 1901 Constitution also states that “No revenue bill shall be passed during the last five days of the session.” The Alabama Supreme Court has ruled that the clause refers to “general revenue bills.”

Yet problematically, the Legislature has enacted law (though voter approval in 1984 as Amendment Number 448) that allows them to bypass that constitutional requirement through a process known as a “Budget Isolation Resolution.” Therefore, to pass legislation before budgets are submitted to the Governor, the legislative body must first approve a Budget Isolation Resolution by a 3/5 vote of the quorum. The Alabama Legislature website defines it thus:
BUDGET ISOLATION. The procedure by which the passage of the two budget bills (general and education) is given priority in the regular session. Passage of any other legislation must be preceded by the adoption of a resolution exempting it from the budget isolation process.” (February 3, 1985 news item on “Budget Isolation” which was proposed by former Governor Fob James in 1981.) Sadly, the Legislature has abused the BIR (Budget Isolation Resolution) process to pass every other legislative item during this Regular Session such as the Brown Shrimp the Official State Crustacean (AL Brown Shrimp State Crustacean A0010757), and making the Shoals Chamber of Commerce the Official Host of the Alabama Craft Beer Championships, (Shoals Chamber of Commerce AL Craft Beer Championships A0010773). While it was considered and discussed, the Lane cake did NOT become the Official State Cake (SB166 proposed legislation by Sen. Billy Beasley), nor did the Honey Bee become the Official State Agricultural Insect (HB286 proposed legislation by Rep. Jim Patterson, R-Meridianville) – which by no means could upset the hallowed position of the Monarch Butterfly as the Official State Insect.

There is an Education Budget, which funds education.

Then, there’s a General Fund Budget, which funds everything else – including the ADOC, Medicaid, ALDOT, and every other state-funded government operation.

The state’s Education Budget for 2016 is $5.9 Billion, was unanimously supported by Legislators, with Educators’ support, and will be signed by Governor Bentley.

The state’s General Fund Budget has not been passed, although there has been a ‘stripped down, bare-bones, austerity’ version passed (which Governor Bentley has indicated he will NOT approve/sign, and will veto) which will guarantee cuts to every state agency, including the entire Alabama Court System, National Guard, State Parks, Child Abuse & Domestic Violence Prevention, Department of Transportation (road construction & maintenance), ADOC, Alabama Department of Environmental Management (ADEM), State Department of Veteran’s Affairs, Alabama Law Enforcement Agency (State Troopers, Driver Licensing, Criminal Investigation, Waterway Safety, etc.), Department of Agriculture & Industries (diagnostic labs for animal husbandry/farming food safety), Department of Conservation and Natural Resources (effective closure of state park system), State Emergency Management Agency, Department of Forensic Sciences, Department of Human Resources, Department of Labor, Department of Mental Health, Office of Prosecution Services/District Attorneys, Board of Pardons & Parole, Department of Public Health, Senior Services, Youth Services, Economic and Community Affairs, Department of Insurance, Finance Department, etc.

In short, every state agency would be negatively affected.

The ‘stripped-down,’ or so-called ‘austerity’ version of the General Fund budget would be $1.64 billion for the General Fund, which represents a reduction of $204 million, or 11%  from the 2015 Fiscal Year.

Recently, the idea was proposed before the Senate (budget modifications may be introduced by the Senate) to transfer nearly $100 Million from the Education Trust Fund to the General Fund. The idea was never voted upon in the Senate. However, even if it had been, it would have been fraught with even more complexities, because by State Constitutional law, the majority of Alabama’s taxes (90%+) are ear-marked for specific purposes, and to “undo” any provision contained in the State Constitution would require state-wide voter approval of another State Constitutional Amendment to undo a previous State Constitutional Amendment. With 800+ amendments, Alabama’s 1901 State Constitution is the lengthiest of ANY constitution the world over – bar none.

Are you beginning to see the myriad complexities and ludicrousness of the scenario?

It would be far easier for the legislature to approve an increase in taxes to cover all expenses, i.e., grant Governor Bentley’s budget request (AL Gov Bentley Budget 2016)in full (many of which are reasonable, such as:

• Corporate income tax: Require combined income reporting for corporations that do business in other states,
• Insurance premium tax: Remove several credits for insurance companies,
• Public utilities license tax: Remove the exemption that applies to municipal utilities,
• Increase rates upon Automobile Rental now 1.5%, to 4%,
• Increase State Sales Tax upon Automobile Sales now 2%, to 4%,
• Increase State Tobacco Tax upon cigarettes by 82.5¢ per pack, etc.),

and then later, to rework the entire budget process along with necessary Constitutional processes, and then rescind (lower) certain taxes previously approved. The Legislature could crow that they lowered taxes (albeit briefly raised them to avert disaster), which has – according to Republican ideology – proven popular in years past.

While that’s a politically risky idea (translate: unpopular), Alabama’s taxation system is similarly inherently pervertedly warped, and grossly inequitable (e.g., regressive – taxing the impoverished at a higher rate than the wealthy, and multi-billion dollar international corporate timber interests pay a lower property tax rate upon their vast timberland holdings than do homeowners), which further perpetuates injustices inherent in the system.

So, this is not merely a patch, upon a patch, upon a patch, upon a patch. And while for years, the State Legislators have proverbially “kicked the budget can down the road,” it is – quite frankly – do, or die time because of the external pressure from the very real prospects of a Federal Take-Over of the ADOC.

Opining further, I predict a Federal Take-Over of ADOC because the Republican-dominated Legislature (House & Senate) will fail to approve new, additional funding to comply with the agreed-to provisions of the legal agreement to which the State of Alabama is a party.

In other words, Alabama will violate the terms of the agreement, which will force the Fed’s hands.

If there’s a moral to the story, it would be this:

Don’t hold your breath… we’ve always done it this way.

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