Neelley`s lawsuit ()

Transcription

Case 2:14-cv-00269-TFM Document 1 Filed 04/10/14 Page 1 of 18
RECE% V ED
IN THIJT&ED STATES COURT
DISTRICT OF ALABAMA
ith1L1
,
DEBRA' P
JUDITH A.
rc
Ric
Plaintiff,
JP
§
V.
§
ALABAMA BOAR]) OF
PARDONS AND PAROLES,
§
Case No.: : ,(-.c y-
§
Defendant.
§
COMPLAINT
COMES NOW the Plaintiff, Judith A. Neelley ("Neelley"), pursuant to 28
U.S.C. §1983, 28 U.S.C. § 2201, et seq., and 28 U.S.C. § 1331, and complains of
the Defendant as follows:
Introduction
This case is a constitutional challenge to the retroactive application of an
Alabama statute which is directed at and affecting only one individual. Judy
Neelley is the only person to have a death sentence commuted by an Alabama
Governor since 1962. More than four years after Neelley's sentence was
irrevocably changed from death to life imprisonment by the Governor, the
Alabama Legislature enacted a fundamental change to the applicable law and
purported to retroactively increase Neelley's sentence from life imprisonment to
life imprisonment without the possibility of parole. The United States Constitution
is unmistakably clear that a state legislature cannot retroactively increase a
person's punishment The Alabama Legislature's attempt to retroactively increase
Neelley's commuted sentence violates the United States Constitution's prohibition
on expostfactô laws and bills of attainder.
Further, the Alabama Constitution is also clear that the Legislature cannot
interfere with or alter the Governor's exercise of his exclusive power to commute a
death sentence to life imprisonment, as well as establishing the judiciary's
exclusive right to issue a final judgment. The Alabama Legislature's attempt to
retroactively increase Neelley's commuted sentence violates the separation of
powers provisions of the Alabama Constitution.
The present action does not seek Neelley's immediate release from
confinement, nor does it seek a finding that she should be paroled. Instead, this
action seeks to have the retroactive application of Ala. Code § 15-22-27 (1975) to
Neelley declared unconstitutional so that she is eligible for parole consideration.
Factual Background
1. Neelley is an inmate in the Alabama Penal System, having been
incarcerated since 1982. She is currently confined at the Julia Tutwiler Prison for
Women in Wetumpka, Alabama.
2.
On March 22, 1983, Neelley was convicted of capital murder in the
Circuit Court of DeKaib County, Alabama. Following a sentencing hearing, the
jury voted 10-2 to recommend a sentence of life without the possibility of parole.
The trial judge subsequently disregarded the jury's recommendation pursuant to
Ala. Code § 13A-5-47 and sentenced Neelley to death on April 18, 1983.
3.
After exhausting her state appeals and a federal habeas corpus
proceeding, the United States Supreme Court denied Neelley's last petition for writ
of certiorari on January 11, 1999.'
4.
Four days later, on January 15, 1999, Alabama Governor Fob James,
Jr., as one of his final acts before leaving office, signed and had delivered to the
Alabama Supreme Court a letter stating:
Pursuant to the authority granted to me by virtue of Amendment No.
38, Constitution of Alabama, I hereby commute the sentence of death
of Judith Ann Neeley [sic] to life imprisonment.
(A true and correct copy of Governor James' letter of commutation is attached
hereto as Exhibit A). As of January 15, 1999, Neelley's sentence was irrevocably
reduced from death to life imprisonment with the possibility of parole.
'See Neelley v. State, 494 So. 2d 669 (Ala.Crirn.App. 1985), aff'd, 494 So. 2d 697
(Ala. 1986), cert. denied, 480 U.S. 926 (1987); Neelley v. State, 531 So. 2d 69
(Ala.Crim.App.), cert. denied, 537 So. 2d 65 (Ala. 1988), cert. denied, 488 U.S.
1021 (1989); Neelley v. State, 632 So. 2d 986 (Ala.Crim.App. 1993), writ
quashed, Exparte Neelley, 642 So. 2d 510 (Ala. 1994), cert. denied, 514 U. S. 1005
(1995); Neelley v. Nagle, No. CV-96—PT-1381—M (N.D. Ala., Jan. 23, 1997),
aff'd, 138 F.3d 917 (11th Cir. 1998), cert. denied, 525 U.S. 1075 (1999).
3
5.
The commutation of Neelley's death sentence is the only
commutation by an Alabama Governor since 1962. Governor James' commutation
of Neelley's death sentence was controversial and politically unpopular.
6.
At the time that Governor James commuted Neelley's death sentence
to life imprisonment, Alabama law provided as follows:
Any person whose sentence to death has been commuted by the
Governor to life imprisonment shall not be eligible for a parole from
the Board of Pardons and Paroles until he shall have served at least 15
years of such life sentence, and any parole granted contrary to the
provisions of this section shall be void.
Ala. Code § 15-22-27(b) (1975). Pursuant to the then existing Alabama law,
Neelley was eligible for parole consideration as soon as she served fifteen (15)
years of her life sentence. The fifteen years expired on January 15, 2014.
7.
After Governor James' commutation of Neelley's death sentence to
life imprisonment, the Alabama Board of Pardons and Paroles ("the Board")
requested and received On February 25, 1999 an Attorney General's opinion
regarding whether Governor James had the authority to commute Neelley's
sentence to life imprisonment rather than being limited to commuting her sentence
to life imprisonment without the possibility of parole. See Attorney General
Opinion No. 99-00122 (Feb. 25, 1999) (A true and correct copy of Opinion No.
99-00122 is attached hereto as Exhibit B). In particular, the Board posed the
following question to the Attorney General: "Does the Governor's commuting
4
of a death sentence commute that sentence to a 'life' sentence or to a
'life without parole' sentence?" The Attorney General's February 25, 1999
Opinion concluded:
The Legislature's decision to designate only two available sentences
for a capital murder conviction has no effect on the [Governor's]
unlimited authority to commute a death sentence.
The Governor's authority to commute a death sentence to
one of life imprisonment is derived directly from the
Alabama Constitution and is, therefore, not dependent upon
any grant of authority from the Legislature. It is true that,
pursuant to the Capital Offense Statute, the only sentences
that can legally be imposed by a judge upon one convicted
of capital murder are death or life without parole. The
legislation restricting a trial judge in such a manner,
however, cannot be read to restrict the constitutional
authority of the Governor to commute a death sentence to a
term less than life without parole.
Regarding the Board's second inquiry, the foregoing
analysis plainly leads to a conclusion that the Governor
possesses the authority to commute a death sentence to
either life or life without parole. Therefore, when the
executive branch exercises its constitutional authority to
commute a death sentence, the resulting sentence depends
directly upon the specific order of the Governor,
Ala. Attorney General Opinion No. 99-00122. 2
2
State Attorney General opinions are not binding on the courts, although they may
be persuasive and may be entitled to some limited deference on issues of state law.
See Brown v. Alabama Dept. of Transp., 597 F. 3d 1160, 1187-1188 (11th Cir.
2010). Of course, no deference is required or appropriate when the question is one
of federal constitutional law. See Southwest Offset, Inc. v. Hudco Pub. Co., Inc.,
622 F.2d 149, 152 (5th Cir. 1980) ("[T]he federal courts are not bound by state
court determinations of what the Constitution requires."). In particular, "[w]hether
5
8.
On March 8, 1999, the Alabama Board of Pardons and Paroles sent
Neelley a notice that her "case has been reviewed [and] scheduled for parole
consideration" in January 2014.
9.
On October L2001, Neelley's counsel wrote to the Alabama Board of
Pardons and Paroles requesting that Neelley be provided with an initial parole
consideration hearing. On October 10, 2001, the Board responded to Neelley's
request by stating that Neelley "will be eligible for parole consideration on January
15, 2014."
10.
On October 23, 2001, Neelley commenced an action in the Circuit
Court of Montgomery County, Alabama seeking a declaratory judgment that she
was eligible for immediate parole consideration based on the fact that she had
already served more than nineteen (19) years in prison, including more than sixteen
(16) years on Alabama's death rowe (Neelley v. Alabama Board of Pardons and
Paroles, CV-2001-3092 (Montgomery County, Ala. Circuit Court)).
11.
On July 22, 2002, the Montgomery County Circuit Court entered an
Order denying Neelley's requested relief and holding that Neelley would be
eligible for parole consideration fifteen (15) years after Governor James commuted
her death sentence to life imprisonment on January 15, 1999. The Court's final
a state law is properly characterized as falling under the Ex Post Facto Clause,
however, is a federal question [federal courts] determine for ourselves." Carmell
v. Texas 529 U.S. 513, 545 (2000).
judgment was based on the holding that § 15-22-27(b) unambiguously required
Neelley to serve fifteen (15) years from the date of the Governor's commutation of
her sentence to life imprisonment.
12. On June 18, 2003, more than four years after Neelley began serving
her life sentence following the Governor's commutation of her death sentence, the
Alabama Legislature approved Act 2003-300 which amended § 15-22-27(b).
Instead of providing that a person whose death sentence was commuted to life
imprisonment was eligible for parole after 15 years, the newly amended statute was
changed to provide that "[a]y person whose sentence to death has been commuted
by the Governor shall not be eligible for a parole." (Emphasis added). In
addition, Act 2003-300 added a new requirement that' person whose sentence of
death has been commuted by the Governor" may not be granted a parole unless
"sufficient evidence is presented to the Board of Pardons and Paroles to satisfy it
that the person was innocent of the crime for which he or she was convicted, the
board votes unanimously to grant the person" parole and "the Governor concurs in
and approves the granting" of parole. § 15-22-27(d) (incorporating by reference
the requirements of § 15-22-27(a)).
13. Critically, Section 3 of Act 2003-300 provides:
This act shall become effective on the first day of the third month
following its passage and approval by the Governor, or its otherwise
becoming law, provided however, the operation of this act shall be
retroactive to September 1, 1998. (Emphasis added).
7
In other words, while the change to § 15-22-27 was effective on September 1,
2003, the "operation" of the new changes was made retroactive to five years before
they were enacted.
14.
The Legislature's retroactive application of Act 2003-300 was
directed at and affected only one person - Neelley. The only person whose death
sentence was commuted by the Governor between September 1, 1998 and the
September 1, 2003 effective date of the amendment was Neelley. Indeed, the
sponsor and supporters of the legislation that became Act 2003-300 expressly
indicated that the amendment was intended to "fix" Governor James' commutation
of Neelley's death sentence and even, referred to it as "Neelley's law." The
retroactive application of Act 2003-300 was a vindictive and politically motivated
response to Governor James' commutation of Neel.ley's death sentence.
15.
The retroactive application of Act 2003-300 to Neelley increases her
sentence from life imprisonment to life imprisonment without the possibility of
parole. The purported change of Neelley's sentence from life imprisonment to life
imprisonment without the possibility of parole is unquestionably an increase in
Neelley's punishment. The retroactive application of Act 2033-300 to Neelley
creates a significant risk of prolonging her incarceration.
16.
From January 15, 1999 until August 31, 2003, Neelley was serving a
sentence of life imprisonment with the possibility of parole. As of September 1,
8
2003, Neelley's sentence was retroactively increased by the Alabama Legislature
to life imprisonment without the possibility of parole.
17.
In January of 2014, following Neelley serving 15 years of her life
sentence, Neelley's counsel requested that the Alabama Board of Pardons and
Paroles provide Neelley with a parole consideration hearing. In response, the
Board requested guidance from the Attorney General's office. On March 31, 2014,
the Attorney General issued an advisory opinion that Neelley was not eligible for
parole consideration based on the retroactive application of Act No. 2003-300.
The Board has to date refused to provide Neelley with an initial parole hearing.
18.
The retroactive application of Act No. 2003-300 to Neelley is
unconstitutional under both the United States and Alabama Constitutions. Neelley
will serve a copy of this Complaint on the Attorney General of Alabama as
required by Ala. Code § 6-6-227.
COUNT ONE: The Retroactive Application of Act No. 2003-300 is an
Impermissible Ex Post Facto Law
19.
Neelley incorporates by reference the allegations of the preceding
paragraphs as if fully set out herein.
20.
"The Constitution prohibits both federal and state governments from
enacting any 'ex post facto law." Peugh v. U.S., 133 S.Ct. 2072 ) 2081 (2013). "So
much importance did the [Constitutional C]onvention attach to [the ex post facto
prohibition, that it is found twice in the Constitution." Kring v. Missouri, 107
U.S. 221, 227 (1883). See U.S. Const. Art. I, § 9 ("No Bill of Attainder or expost
facto Law shall be passed") and U.S. Const, Art. I, § 10 ("No State shall ... pass
any Bill of Attainder, ex post facto Law ..."). "The Ex Post Facto Clause raises to
the constitutional level one of the most basic presumptions of our law: legislation,
especially of the criminal sort, is not to be applied retroactively." Johnson v. U.S.,
529 U.S. 694, 701 (2000). "Retroactive changes in laws governing parole of
prisoners, in some instances, may be violative of' the Ex Post Facto Clause.
Garner v. Jones, 529 U.S. 244, 250 (2000). "The danger that legislatures might
disfavor certain persons after the fact is present even in the parole context, and the
[U.S. Supreme] Court has stated that the Ex Post Facto Clause guards against such
abuse." Id at 253. "The touchstone of this Court's inquiry is whether a given
change in law presents a 'sufficient risk of increasing the measure of punishment
10
attached to the covered crimes." Peugh v. Us., 133 S.Ct. 2072, 2082 (2013)
(Citations omitted).
21.
The Alabama Constitution also prohibits the Legislature from passing
ex post facto laws. See Ala. Coast., Art 1, § 22.
22.
When the Governor commuted Neelley's death sentence to life
imprisonment, the effect was to change her punishment from a greater punishment
to a lesser punishment. As the Alabama Supreme Court has held:
The effect of the commutation by the chief executive was to change
the judgment of the court, and the commutation abrogated the
sentence of death imposed by the court, and substituted in its stead life
imprisonment in the penitentiary. The judgment, after commutation,
had the same identical legal effect as if the jury, by their verdict, had
declared that the defendant, as punishment for said offense, should
suffer imprisonment in the penitentiary for the term of his natural life,
and there had followed the verdict a judgment of the court sentencing
the defendant to life imprisonment in the penitentiary.
Commutation does not affect the judgment of conviction. It simply
substitutes a less for a greater legal punishment, operating as a
reaffirmation of the judgment of guilt, and may well be referred to the
judgment of conviction rather than to the act of the pardoning power.
In other words, this defendant is a life convict under a judgment of
conviction for murder in the first degree which was pronounced upon
him on the above-named day, and he may well be so designated,
although, but for executive clemency, he would have been hanged.
Johnson v. State, 63 So. 163, 164 (Ala. 1913). See also Cobb v. State, 38 So. 2d
279, 280 (Ala. 1949) ("[O]ne convicted of murder in the first degree and sentenced
to be electrocuted, which sentence was commuted by the Governor to life
imprisonment, is a 'convict sentenced to imprisonment for life,' since the
11
commutation simply substitutes a lesser for a greater punishment, and the
judgment had the same legal effect after commutation as if the jury had fixed his
punishment at life imprisonment instead of death.").
23.
The Alabama Legislature's retrospective application of Act No. 2003-
300 to Neelley impermissibly increased her sentence from life to life without
parole, thereby significantly and materially increasing the risk of prolonging
Neelley's incarceration in violation of the United States and Alabama
Constitutions.
COUNT TWO: The Retroactive Application of Act No. 2003-300 Violates the
Alabama Constitution's Separation of Powers
24.
Neelley adopts by reference the allegations of the preceding
25.
"The Constitution of Alabama, like the Constitution of the United
States, 'expressly vest[s] the three great powers of government in three separate
branches." Opinion of the Justices, 892 So.2d 332, 334 (Ala. 2004). "The
Constitution of Alabama expressly adopts the doctrine of separation of powers that
is only implicit in the Constitution of the United States." Birmingham-Jefferson
Civic Center Authority v. City of Birmingham, 912 So.2d 204, 212 (Ala. 2005).
"Article III of the Alabama Constitution of 1901 creates the framework for the
division of powers between the State's legislative, executive, and judicial branches.
12
Each branch within [Alabama's] tripartite governmental structure has distinct
powers and responsibilities, and our Constitution demands that these powers and
responsibilities never be shared." Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.
2000).
26.
Section 42 of the Alabama Constitution of 1901 provides:
The powers of the government of the State of Alabama shall be
divided into three distinct departments, each of which shall be
confided to a separate body of magistracy, to wit: Those which are
legislative, to one; those which are executive, to another; and those
which are judicial, to another.
Section 43 of the Alabama Constitution provides:
In the government of this state, except in the instances in this
Constitution hereinafter expressly directed or permitted, the legislative
department shall never exercise the executive and judicial powers, or
either of them; the executive shall never exercise the legislative and
judicial powers, or either of them; the judicial shall never exercise the
legislative and executive powers, or either of them; to the end that it
may be a government of laws and not of men.
27.
"Under the Constitution of Alabama the power to commute a death
sentence is vested exclusively in the Governor." Wilson v. State, 105 So.2d 66, 71
(Ala. 1958). Section 124 of the Alabama Constitution provides: "The governor
shall have the power to grant reprieves and commutations to persons under
sentence of death." "[T]he governor's authority in Alabama to commute a death
sentence is derived directly from the Constitution itself. It is not dependent upon
the permission of the legislative branch, nor is it susceptible to legislative
13
restrictions. ... Therefore, any attempt by the Legislature to restrict the Governor's
power of commutation would violate the separation of powers doctrine." Atty.
Gen. Op. No. 99-00122.
28.
On January 15, 1999, the Governor of Alabama commuted Neelley's
death sentence to a sentence of life imprisonment pursuant to his exclusive and
unquestionable constitutional authority. On September 1, 2003, the Alabama
Legislature attempted to overrule the Governor's action and retroactively increase
Neelley's sentence to life imprisonment without the possibility of parole. The
Legislature's act interferes with and attempts to override the Governor's exclusive
power and therefore violates the separation of powers doctrine as set out in the
Alabama Constitution.
29.
Independent of and separate and apart from the infringement on the
Governor's power, the Legislature's retroactive application of Act No. 2003-300
also impermissibly encroaches on the power of the judicial branch of the state
government by attempting to retroactively re-open the final judgment entered by
the Circuit Court of Montgomery County, Alabama in Neelley v. Alabama Board
of Pardons and Paroles, Case No. CV-2001-3092 on July 22, 2002. The final
judgment entered by the Montgomery County Circuit Court found that Neelley was
Following the Legislature's enactment of Act No. 2003-300, the Attorney
General added the following legend to Opinion No. 99-00122: "Before citing, see
section 15-22-27 of the Code of Alabama, as amended by Act No. 2003-300."
14
eligible for parole consideration as soon as she served 15 years of her commuted
sentence. The retroactive application of Act No. 2003-300 nullifies that final
judgment.
30. "[T]he core judicial power is the power to declare finally the rights of
the parties, in a particular case or controversy, based on the law at the time the
judgment becomes final. The legislature certainly possesses the power to amend
the law, 'but it may not do so in a manner that impinges on the judicial power by
retroactively changing the laws that were incorporated into the judgment when it
became final."' City of Montgomery v. Town of Pike Road, 35 So. 3d 575, 582
(Ala. 2009) (quoting Ex parte Jenkins, 723 So.2d 649, 656-658 (Ala. 1998)).
"Under the separation-of-powers doctrine, the Legislature cannot enact a law that
would change the law incorporated into a final judgment of a court." City of
Daphne v. City of Spanish Fort, 853 So. 2d 933, 942 (Ala. 2003). As the United
States Supreme Court has observed, "[h]aving achieved finality ... a judicial
decision becomes the last word of the judicial department with regard to a
particular case or controversy, and Congress may not declare by retroactive
legislation that the law applicable to that very case was something other than what
the courts said it was." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995)
(emphasis in original) (citations omitted). See also Ex parte Jackson, 614 So. 2d
405, 408 (Ala. 1993) ("If the Legislature disagrees with [the court's] interpretation
15
of [a statute], then it will enact appropriate legislation to modify the statute and
yield a different result iii subsequent cases." (Emphasis added)).
31.
By making Act No. 2003-300 retroactive to cover Neeliey's case (and
only Neelley's case), the Legislature has enacted a law that would change the final
judgment rendered by the Circuit Court of Montgomery County and thereby
impermissibly infringed on the constitutional power of the judiciary.
COUNT THREE: The Retroactive Application of Act No. 2003-300 is an
Unconstitutional Bill of Attainder
32.
Neelley adopts by reference the allegations of the preceding
33.
Article I of the United States Constitution provides, in relevant parts
that "[n]o State shall ... pass any Bill of Attainder...." U.S. Const. art. I, § 10, el. 1.
Through this clause, "the draftsmen of the Constitution sought to prohibit the
ancient practice of the Parliament in England of punishing without trial
'specifically designated persons or groups." Selective Serv. Sys. v. Minn. Pub.
Interest Research Group, 468 U.S. 841, 847 (1984) (quoting United States v.
Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965)).
"The
prohibitions on 'Bills of Attainder' in Art. I, § 9-10, prohibit legislatures from
singling out disfavored persons and meting out summary punishment for past
conduct." Landgrafv. USI Film Products, 511 U.S. 244, 266 (1994).
16
34.
The retroactive application of Act No. 2003-300 was undeniably
specifically directed at Neelley since she is the only person who would be
impacted by making the application of the statute retroactive. Further, as noted
above, the retroactive application of the law imposed additional punishment on
Neelley by increasing her sentence from life imprisonment with the possibility of
parole to life imprisonment without the possibility of parole.
35.
The retroactive application of Act No. 2003-300 to Neelley violates
the U.S. Constitution's prohibition on Bills of Attainder.
WHEREFORE, Neelley prays for the following relief:
a.
That this Court enter a declaratory judgment finding that the
retroactive application of Act No. 2003-300 to Neelley is unconstitutional;
b.
That the Court direct the Alabama Board of Pardons and Paroles to
expeditiously provide Neelley with an initial parole consideration hearing;
C.
That this Court award Neelley her reasonable attorney's fees and costs
pursuant to 28 U.S.C. §1988; and
d.
That this Court award Neelley such other, further and different relief
as the Court deems reasonable and just.
17
SIROTE & PERMUTT, P.C.
2311 Highland Avenue South
Birmingham, Alabama 35205
(205) 930-5100 (Telephone)
(205) 930-5101 (Facsimile)
bragsdalesirote.com
, V'A
V ON
MCPHILLIPS SHINBAUM, LLP
516 South Perry Street
Montgomery, Alabama 36104
(334)
(334)
i ulianmcphi] 1ipsmsg-1 awfinmcorn
Attorneys for Plaintiff
Judith A. Neelley
A copy of this Complaint has been served on the Attorney General of the State of
Alabama, as follows:
Hon. Luther Strange
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36104
18
Case 2:14-cv-00269-TFM Document 1-1 Filed 04/10/14 Page 1 of 2
Exhibit A
TO
JAN-15--1999 11:19 FROM GOVERNOR'S LEGAL OFFICE 81253275418 P.01
STATE OF ALABAMA
GOVERNOWS OFFICE
MONTGOMERY 36130
FOG JAMES, J.
GOVWO
January 14, 1999
Alabama Supreme Court
300 Dexter Avenue
Montgomery, Alabama 36130
Circuit Court
Dekaib County Courthouse
Fort Payne Alabama 35967
Pursuant to the authority granted to me by virtue of Amendment No. 38,
Constitution of Alabama, I hereby commute the sentencc of death of Judith Ann.
Neeleyto life imprisonment.
Done this /b ay of January, 1999.
F5b Jame.s, Jr.
Govcrnor, State(d1abama
TOTR!_ P.01
E02I26I8f TRU
0042 F.X e3481840
ALA. A'TY OWL - C14
OFFIc OF ThE A oriir
GENERAL
I
!LL FKYOR
ATrøI4av CRNPUL
e1TgorMADANp
•
qt
Vebtu'y
Wt NM=A"'MM WW
1
Allm 94) 24tØO
flonorab1 Donald L Parker
A01I,i BXdoUtLVe Director
Board of Pardons atid PeroLe
Lar1em B WeJtec Building
500 Monroe Sre
MontgOinety, AL 36130
•
Pardwis er4 Parot4a - Pardons and
Piro Tea aoard - Sentences - Capital
P"Mahment Crimes and OfI'iiaes
Under the Conatttit!on of Atebamri
the power to c*n*nute S sentetwoor
death Is vested exclusively tit th
Governor, Ivrt1termore, the author,ity Is onstLtul*n811y uurutricted. Therefore, this Goveraor may corns
fflute a death aentenco to a teas-er
aaiWnee ctbrwiae unatflhailzd by
atautn. When the authority In
caed, th resulting entaite depends
directly on the specific order of
the GwcYnor.
•
uep
•
•
•
-
If a death sentence 13 ComIfluted to
"I1fG" putnnnt to neQton 15-22-21,
tho peisaner-must acrVe at tenet 15
years from the date of the commuta'
t(on in order to become eligible for
parole.
•
•
1 I
I.
I h-', '-
•
,•
•
-•••r-
kJI-
-.-.--
6i
.-.
.------
vx
02/ 6,9 TUV
3343038444
AL.&. ALIY cIWL - MIL
honorable Donald L. Parker
Page 2
Doas Mr. Parker:
ma
optruon Of
the pittory General Is eaUd Ift raaponft t
OUK-SITI ONS
Mil'
Aecs 111a CapItal Offnaas statute Passed
in 19i (section 13A-5-39 of the Code of AL1baina), witch requires a sentence of 'death" or
life without parole" for a oonvietio,i of a Capi
tal Odense, eoaflit with section 13A..22.27(b)
-
of the Code paaed In 1951 which statcs the
Governor anny cozflmLto a death acnwnoe to a
life" sentence for wttich 1i dvfovkd ant may he
paroLed aCtor acr y ing fifteen (ii) yoiLrs of that
sencenee?
I
Doee the Governor's eommutlng of a death
setttenee Commute that aeotenee to a Iif&' sign.
toncio ac to a "life withoat pørnie' senteuc.e'
•
•
Tho met two quSfItions can eeaunli3Ily be ailewered together. eonuee of th context in which there questions arise, It to foir to
that the uuderlying Inquiry Is whether the Qoveruor c*ri commute n death
aentence to a
tcnce not authoizcd by RtAtOtO, 'I'be answer to that
41jesL!on is yes. "Under the Constivtttiva or Attbarna, the power to o.ocn
mute A death 8CfltaaO is vcated ex61uave17 In she Governor." WIIB Oil V.
St atts 106 So. Zd 0 (Ala. i95), citing ALA. CONST. 124 (arnondi
t93). y utkermue, othor than appl'yIns only to death aentenoa, nothing
in aviWon 124 restricts the Governor's p4wat ornrnmutaticnt:
I
•
I
I
joveftinrahalIvppwer top
cpricve)flflIuLakfl
to C OVLQI5 under
eantattea e(do.a1. The legislature shall have
power to pvovWa for and to regulate the admini.
stratlon of prdons1 paroles, re. ThIsslon of tines
an4 f6rfelturts, 10 may dUthOr2e the courts
having crlmltial Jurladlotiori to suspend aentenee
and to order probation. No pardon shall cohn-ye
UIIJ.1
ru 043 Pt
ALA. AtTY CEN'L - CiVil..
Ronotble Donald L Parker
I
I
I
Page
from civil and political disabilities uales speelficaLly expressed in the panics.
ALA. CONST. 0 124 (amended 1939) (emphasis added)'.
Alabama's Capital OfTeue, Ststite Is set forth In seetIon 13A-.39
through IA-5-59 of the Code of Alabama. A capital offense is "(am
offense foe which a defendant shall be punished by a sentence of death or
life imptisonment without parole. ,." ALA. CODE 4 13A.549(l)
(19 0 4). The Code frtherptovide that i u ]pon conviction of a defendant
for a capital offense, the trial CO1Tt Shall conduct a aepatete sentence
hearing to determine whether the defendant shall be sentenced to ljf
lutprisoament without piuole or to death." ALA. CODE § 13A.545(a)
(1994) The law is clear in Alabxb4 therefore, that the only two seatecxces available to any individual convicted of capital ntgdiu are Ufe
without parole and death. This restriction appears to conflict with the
following povisions of the Alabama Code which, as is eorrct1y nutd
within the Board's inquiry, were enacted thirty years pr ior to Alabama's
Capital Offense Statute.
I
I
I
I
I
I
I
1
I.
td
(a) Any person whose sentence to death
hee booi commuted by the Governor to life
imprisonment shall not thereafter be eligible for
PL pardon UnleSs sufficient evidence Is presented
to the Heard of Pardon and Paroles to satisfy it
that suchperson was Lxznocent of the crime for
which he WeB convicted, the board votes unanimously to grant such a person a pardon, and the
or niunip tea of stale ccnsUtutivns that limit or authozize fWfadvas or regulations on
the power to pardon or commute. see Aiiz. Conat, art, 5, 5 (providing "t]hs Governor
Shalt have power to grant rcpxieves, commutation, and pardons, after convictions, for all
ojThnsea except treason and eases of impeachmcn1 ilpdh such conditions and with such
restrictions and limitations as may be provsacd by law"); Jwi. Corsi. 7
(providing "[t]he pardoning power shall be vested In the guvaniQr, under regulations end
tetdctlzis prescribed by low"); MIA Coast, art,, f 14ptvfdng "the governor diall
have power to grant reprieves, commutations, and prn*as after convicUons for all
ofteses, eept cam otImpawhinav4 upon such conditun, and limitations as hraay
direct, uhjeit to procedures and esg laffoen prescribed by lawn); S.C. CoaSt art IV, 14
(pzavldin that "tw]ith rcspoot to cIamny, the Govornr Khall have the power onl y to
grant reprieves and to commute a gentunce of death to that of hifo lmprisnnient. The
tiag of alt other etemeray shall he regulated end pnMd(A for by l3w); Wash. Corist.
srt, 3,
providing "(tihe pardoning power shall be vested in the governor under such
regulations and restrictions as may be prescribed by law").
U
4&4 6n.irj dO CG-9-qj
i2/Z5!!.!Tlihl O44 PtX 31i44U
I
I
I
I
I
I
I,
I
I
I
I
I
I
I
I.
I
I
ALA, A'LTY uJt
-. CIVIL
oUs
HooOtdb!ê Donald L. Parker
Page 4
Govsrnor concurs In and appO'*a the granting or
the pardoi
(b) Any person whoa sentence to death
hs been oinrnutd by tho Governor to life
ltzonfl*et ehall *ot beeligible far a parole
from the 5otd jof PAYAOns a p d Paroles wttlt he
shsfl have eon'ed at least IS years of auch life
senteec q , aUd nay parole grmkted contrary to the
provisions of thIs inibsectioit shall be void,
I
ALA. CODE 15422w 27 (1995). In the sense that s.otit,u 152-27 refer;
to a aenteltee that Is not authorized by statute 1 there does appear to be a
onftiot, The referenee to a life 8entCttoe 1 hoVVer, Is tuada In the context
of t he Ooventor'e poWer of voi1mutt1on. The Legislature's dcci.sion to
desigaarc only two avallable sentenoes for a cepital murder ronvictlon has
O .ffct on the OxsoutivO's unlimited authority to commute a death sontenco. Baa ause the Qovcrnoa power Is not coøstituttortalty restriatA7 4 to
only these sentancas atirizorized by Xtatute, there e no COW 1104 betwoon
the two pPovtaiOflS.
While not directly daierminative, ib review of the President's cow.
atitutienul autlios'Lty to grant pardons das sheJ light On the isuo. in
SbJ k v. Reed 4 U.S. 2S (1914), the UnIted States Supreme Court
addrasse a uetoiz eancernln*;he extent of the presidential pardouiug
power contaLned in the tinitc4 States ContttutIon. The fdera1Conutttt*..
ttort specifloally bestows upon the Prosideitt the "Powt,t to
R.prie've5 and Pardons for Off lea agthiit the United States, except in
Cases of Intpeachmsnt 'U.S.CONST. art. U, 2. The petIUout in
ch1ck. had been scatnoc4 to desth by a Ooart martial PUTSUt1t toth. Unli
nodc of Military lustica. SubsequentIy, Piesident Eisenhower commuted his death sentence to life imprisonment subject to the coyJJtton
that he would not theresfiur be etLfb1e fur parole." 419
U.S. 15d, 27 (1914), One Issue raised In the es
'Eisenhower ocoecdcd his powers under A g t. 11 by ipocfttg a condition
nut eprescLy ant ,ried by the Uinfortn Code of Military Just; Co. In
as;awening tla question In the ne5aive, the Coutt hold that " j Jn fl g ftt tir
the EoRell common law from whIch sich Iangua Was drawn, the cn
cluclon N Inescapable that the pardoulna cower was Ix ended to iu4lude
the power to commute sentences on condition which do not in thcmselvm
nYFen4 the Constitution, but which are not specifically provided by stnt
ute," td. as 265. The majority opinion emphaaiad that the only limits on
the prealdentmni pardoning power are those contained wilhia the Cwt3tizu.
tiott Itself, Id. at 166-67i T1ctefon, nrty requiretitout that the executive
d9Z5 GG.qj
s_.jruu O4_,t ata4o
I
I
I
I
I
i
AU, Afl mL V1VXL
woos
!-torrabk Dou1d L Pukcr
Page $
comuut e a S gn t a ll os to OUC KUthori g dd by atatu(e woUld PlaCe UnaUtr[ed
uorigrinai restelotions ion the pardoning power.
(CI,
the united 4tates Supreme
In re9o1vng the issue in
discussed the English Crow&s pow-or to extend meoy lii tho nolUTO OC
pardon. Thia coniutofl law power of ihe king wu tho sutesls for tIi
predtiUat pardonftg power nd for similar olauca 09AIRittad in early
StRIC 000511ILLUVa p , Tbo Court ocptalned ci tack of debate on (ha jasutt
dt ring the CouiItUik,ua1 Convention b' notial that 'the daftsmon were
well 46qurit44 With th. Bngllsh Crown Autharity to alter and reduce
pumoote as It existed In rit." Id. ILI 260. The Court described that
ehor1ty, in por t , as foHoW
I
•
I
I
I
1
Virbus types of ondt Ions both ponat and
noupcn*l in nature, were employed For exani
ple It WJ common for a pardon Or couufluta(iort
to be granted ois condition that the felon be
transported to another plaee, and bi4oed our own
Colonies were the reotptente of nuneraua e,ibJocra of 4 banlahruent.' This practice was never
quettoned despite the fact that British subjeots
generally could cot be forced to leave the realm
without an Aot of Parliaznont and banishmeitt was
rarely auchortZ4 as a punishment for GTImO.
U. at 261. Tfre. history Informs na that, at the time of tho adoption
of the federal end early arare eonstitnttona, the English Crown was excr
cialag the right to attach cndiUone to Conimutations that weia trnaathorJznd4ay Parflantaili. Ukewlec, baeed upon tha(r consIitutional authority,
"Presidents throughout our history as a Nation have excolsed the power
to pardon or commute 844toncts upoti oondlitotis that etc net apeotfloaiiy
authorized by statute.?' Id. at 266. "(TJhe power flows from the coned.
tutiou alone, not frotri diay legislative Onaletfiten4a, and, rtheretorc,J it
not be inudifled, abridged, or diminIshed by the Cuno,.' (I,
riot uAll .ko this prg sidenthil p;vdordtis poWr, the governor's
authority In Alab4rns to coalmuto a death sentence is doth-ed JIrantly
£c'oln the CoatitutIon Itself. it Is not dependent upon the petMjSSjqj, at
the IqlalatiYe bnOh nor Is It sucepiible to Legislative rGstriotialls. The
Alabama CoAstitution clearly and unambiguously staKe that "the governor
sheU have pcwer to grant reprieves Bud oothmutattons to people utdcr
nen(enec a oath." ALA. CONST. 124 (amended [93), ''herfore 1 any
attempt b y the Legislature to tutriut the Governova power commutu .-
90d
b9.AØ d:cj 66-2-qi,j
..:...-.
.....
I
_25/fla__TBYJ09:4ø EfAl 33439$8440
ALA, ArIY cwf'L - CIVIL
Honorable Dould L. Parker
Page6
I
I
I
I
I
I
I.
I
I
I
ratton of powers doctrlae, *et forth Ih the Aletiou would violate t}ie beina Constitution to Follows:
In the g1Ycrnu1cnI of this tte, oxoep$ in
instanced
g ed In this coustitution he:nnAr
the iftstan
e*preaaly dizcttt or pernt1tted the Legislative
denrtient ehiit n.er oiercLse the eeattve and
Judlolat pawora or either of tltem the executive
li gjl never exer1ae tho lOie1Uii1re and judic(aI
powerA, or either of them; the juct1cul shall never
oxot1e the legislative and exacudve powsve or
either ot' them; to the en d thst it n4y be a
erttmet of laws and not .of meti
ALA. CDNST, art. UI, 143.
A dterniiate1101% that the Lejs)atute has oti authority to reelrIt tho
Governor's power of cdtnMutatlon is lkewlsc consisceet with Alabama
peecoenc, While the Precinct leSne as rdatvd to mnutstion may not
have arisen, Alabama oouite hitvc struck down legislative atterapte, to
intrude upon Otecutivo power to grunt other forms of dlemetley. So
163 SQ. 365 36* (Ala. 195) (at&tlng that "where
the purdoiting power is conferred on the, executive withoid czrcsa or
Implied lIm ationt the grant is exalitsivs. andilte legislature can noIthct
a*accie such PoW15T ftelf not dclegtc It elsewhere, nor inter['oze with or
control the PTOPerexeraiRe thereof, as by imposrag conditions to the full
enjoyment of the rights co'ferted by anch par don ,'); State Fx Rai._
S t Al v. Stn* CutiTre aauej 139 So. 325, 330 (Al93)hLding
that "bjy eonfovrin the1 riglr to remit flues imposed and forticures
accruing in crixnktat proecelLes upon the Qovornor. the ConstItution. In.
this, amid to this extent, took tiLlS tlhC &ocn the LttaIuxe').
In u4411100, other States have reachcd ahnhior 00noluslons. See
Carroll v, R!y*ey 953 S,W.2d 07 1 661 (Tuna. 1997) (twIdln that 'tho
commuicki seutonce of 22 years to life impaeed by the 46overmorwas a
prepeT aeooe of ith authority wider article 111 6 of the Teiinsee
Consfltutlou, even if 00TISido g od an Indeterminate term that could not have
under the atatutea by the Judge or jury when the doMdant
124 of the Al2bS Crnstituth,ci the
In additaa to the paw9r to grant reprieves and conuLutattoos, had the
authority to rentit flats and forFbires and, afccr cotwicllon. to grant peoiea and pa4ons
excrpt in oases of impeacbtnant, ALA. CON$T. 1124 (amended July 21, 1939, by
Ameudrnent r1c.
I /O'd
Iab..a d1aEQ
OO?
- !L..
1J 9iiA
4 344030440
Honorable Donald
ALA. A2'r y t
g ei.
-
00$
L. Parker
Page 1
convkted") Coleman V. Ohio Malt Paole Aethority, 685 N,L2d
241 (Ohio Ct App 1996 (hOldlii that 11itise the pant of the elemoy power with respect to commutal1oe and rptIvO$ Ia unfettered, any
•
regulation by the Oørteia) Aa$embb' that acts to limit the Ovvcnoc'a
power to grattt commutationfi or reprcvu Is a violatIon of the
lion"); EASKILt.tO1
3 33 P4 2 d 741 (Or. 1958) ( .5tating that u(w1h0r.
40nt1tuttOl% thus nIcra unlImIted power 0 o the covernor to grant
ieprtevea, oomntntattons OVA pardons, tiW diecrettea oannot he controlled
Green
by any JudlolaL
doelslort t'); V. 1er45jj1 .246?. it 39 (Cal. 152)
hst a Governor could not commute, his
doftncIonta arutrt.nt
death aentonee to LIfo without thepoibiIIty of aro1 bcau the only
pwi lh,nent etbiIhed for the offense of fltat-dogreo murder by the
legislature were death and life with the possibility of parole).
(ctiu
I
1
I.
I
I
I
I
I
ISO
P1naI1y, it N4io qlld be noted that while the Oovornor 1 e power of
be restricted, the Lels1at.zre ma enact laws to
comnuttattoü may
rettdor its o0raise oonventønt and offlciauL" Fuller Y. Sint, 26 Sa, 146
th Oovraor bad the
141 (Ala. 1899). At the time! ie w$4 do o
constitutional authority to grant pardons, Constitution of 1875, art. V,
Fullor oourt approved of legidailon wtLichprovIdrd that tho.
12. The_
Governor, pursuant to him c qnathutlenul authority to pardon, could parole
an Inmate oit good behavior and, upon the failure of the inmate to observrs
the parole, direct tho rearrest and tettant of the Inmate to
the cui1dito15 of
custody. Id. at 147-49, Likewlzei , although it may not restrict the power.
the Leglalature may onnot laws that tender the Overuur'a taereise of Ike
authority to commute death Sentencea orderly and umciout.
Kt is within the context of the foregoing analysis that the Boards,
Initial inquiry Is 411were4 In the negative. There is no conflict betweón
Alabama's Capital Offenan Statute and Section L-22-2T(b) of ibO Cede of
Alabama. The latter provision sImply aets forth uldcIkoa rag ding
parole eligibility for '[a]ny person whose setitence to death has boon
comniutod by the Governor to life imprlaonxiiont." The ()cvernor's
authority ta commute a death 90I1t5$tOC to one of life imprisonment Is
derived dkcetly front the Mabaitia ConstItution and ts therefore, oat
dopmtdant upon any grant Ut' atitliiirity from the Legishijute, It is true
that, pursuant to the Capital Offetise Statute, the only BCJ004090 that can
LuUy be Imposed by it judge upon one nv(ctd of capital murder co
death or life withoUt parole. Tho Legislation reatrktiag a trial judge In
such a manner, however, cannot be road to restrict the conetitutioal
S2o
00:40 F*1 3135384*0
AU. An y (8NL CIVIL
oo
Konora1(e Dna1d L. Parker
Page 8
auchotity of the Qoverflor to commute a deatit sentence to a trm less than
life without parole.
eoad IOUITYI the foregoing atyala
Regardiug tho Bond'
plainly Leads to a cflçliitofl that the Oovurn. or pOBsO$5e5 the authority to
commute a death 5vntanoa to either fife or life wfthoul parole. Therefure
1ien the çxcoutg vc brañk Oxerolsea Its constitutional authority to
flIO a death aentenec1 the resulting sentence depends directly upon the
pacific order of the Governor..
tThes section t..22-27(b) of the Codes which
to death
has
been commuted by the Governor to life imprisonment shall not be eligible for a perole [aiu th
Board of Pardons and Paroles until he shall havc
served at kent 15 years of such IIe &nteuce, and
any proic granted contrary to the prorlaloca of
this sub Section shall be voids" rquke a dcfcmyctra from the date of
dant to serrv fifteen
the Governor's commutation to the "Jjf& sea..
tCIiCç or Serve the fifteen 03) years from the
orIginal sentencing date?
CtRIPoetatn whose sentence
-..-
-
I
•
I
FACTSA MD ANALYSIS
The finding above, that the aovernor pusseases the Constitutional
authority to corjjuiUtC a death sentence to one of life tntprlaonment, tcad
to the Board's thLrd Iflquir)', and tu interpretation of the fullowing statute:
•
(b) Any person whose scotonce to death
has been cummuted by the Govoriwr to fife
Lrapriontnent shall not be eligible for * parole
from the Board of Pardons and Paroles until he
shall ha ys serv ed at least 15 years of such fife
seteflde, and any parole gante4 contrary to the
provisions of this subsection shall be void.
15-22-21 (1,75).
ALA. COT)
Initially, one might qtiestloa whether Section 15-22-27 cgnat1tuts
an unauthorized restriction an the executive power of commulatio. It
I
I
dL:so
I0212/89
I 010
ALL, ATEY OWL - CIVIL
TIM OOilS FAX
Honorable Donald L. Farar
I
page
does n, As was dIsuesed xtenh'uly In response to the Board's tlxst
tWOIULILOS. the Governor plainly ha the constitutional authority to
qqjU muxc It çIaih snteis qe to a ta ices than li C without proie. If
poWcr La oiccrted, however, the quostlott 9 f proIo OUS Ibility 1.0
ttth,nnity deferftd to the i.eglstnture. In fact, the teahluture v e aiihorttyin th*t regard is dortved from the seine co psIl tu tiOlial proviio(t that great*
the e gootLve the pnwer of cordmutation,
I
I
I
The governor shall have powor to ga2Lt
reprieves and c9mmutial tions La persona under
antcn0O of denib. 7AP 1 cjç uro Shall have
or to vgovide for. and 9 rcamkttjhe admliil.
stratton ol
A°L
trliiarea nad may authôrzo the oourts
bay ing CTJXnIIIUI jurisd1t1on to ,iuspend sentence
mid to order probation. No purd qn shell illve
trout iv1I aitd pltttcd dliabIlLtics uritese epectfiOdlIy expressed lit the pzrdon.
I
I
I
ALAI CONSV. § 124 (amended 1939) (ernpkusls added), Pnr
gitt to the
Cottatfon theref'ore if the Governor commutas a death teutunee to a
terat Iau than life without parole, the question of parole eligibility falls
the authority at the Legislature,
Acknowledging the Lgialatura's power to provide for an4 re.3leta
paroles, the question to be resolved Is whether the 13 years, refed to in
sotion 15-22.27(b)1 begins to rutton the data of the original death sonCenoe or the date of the executiveorder granting oO ynmktattan. The
answer Is found within the plain Language of the statute itself, Black's
Law Eflotionary doftnee oommtnatton' 1 as an "atterattun; uhane; iubst[
tucLoi; the at of substituting urc (Wag for unothor in criminal Law, the
change uf a punlabMinat to QUO W1*ish ia less s'el' as from cccutin to
flfe Imprisonment." slack's Law Ditioniuy 192 (61h ed. t991). The
Go y crnoz's It*lFoa, Lherefori, results In the substitution of a life Sentence,
for the ptv1øus death sentenee. it aeaestarily follows that the indlvdual
In question would begin serving the We sentence on the dale it came into
effeim i.e the dale of the Governor's order,
I
Iurtborinose, the wording of the provision plainly provides that the
Lito sentonae Is it new sentence of whloh the individual in question must
serya 15 years In order to become parole eligible. Specifically, the attuto mandates that one shall not be eligIMo for parole until he shall have
served at least 15 years ofuch life sentefloO. As used In this Instance,
the tetnt "euOh" is defined by Webster's Dictionary as "belttg the pvrson
I
U
U
U
Ot'd
UJ4.A O1t!i 4B X 5Q 66---q
MC
I
I
01125/H
TEU
Ofl:48 PAZ 3341536440
ALA. AM (E{'L - CIVIL
olL
Honorable Donatd t, Parker
Page 10
-
indicated," The "thing indicated" here Is the life sentence
or thIng.
rauttlng from the aCtIQA of the Governor. The plain zntaninS of the aLa.
• ute can, therefore, be stated as follows: Any person whose death etie
kne bocn commuted to life 1myrisonment ghalt not be eligible for parole
until he shall have segvad at teaat 15 years of the iii'e uenca Imposed by
the Governor.
I
ICONCLUSION
Based upon the plain 1auuago of section 152227, apaer
whose death eenta*oo hen been commuted to I1te must serve at let 15
years from the date of the commutation In order to become eligible for
parole.
I hope this opinion anwer your queslane. If thte Office can be of
further assistance, Please contact Clay 'enihaw or Michael BilIiu;aley of
my staff.
Sincerely,
•
BILL PRYOR
Attorney Qeneral
qc4&:.
CAItOlJE NM1TH
Chief,Opinions Division
I
BPIMB
3499/1789
1
I
I
I
I
/
ttd
•
UJ4.43
d95O 66-S-q4

Neelley`s lawsuit ()

Transcription

Similar documents

what`s for sale? - Alabama Butterbean Festival

Alabama Joint Leadership Development Conference

Tommie Turvey - Alabama Horse Council

View how the story appeared on the page (in PDF)

Clemon will exit U.S. bench

EXPLOREUM AND CITY OF MOBILE ANNOUNCE NEW

child care - Alabama Partnership for Children

Newsletter_Jan 2016a - The Society of Mayflower Descendants in

12toboo - AL.com

ALABAMA