CUTTING LIFE SENTENCES NOT EQUITABLE PROCESS

The state's repeat offender law was changed in 2000 to clear out
nonviolent prisoners. So far, few are affected.

Their rap sheets were similar. Their prison sentences identical, life
without parole. From there, Rex Norris and Willmer Miller faced
dramatically different treatment from the criminal justice system.

Norris, 53, convicted as a habitual offender in a 1993 drug
trafficking case, is home now. The Legislature and the courts had
decided Alabama's repeat offender law was unnecessarily harsh, and a
Jefferson County judge this year slashed Norris' original sentence.

Miller, 61, asked for a similar reduction after 15 years behind bars
for drug trafficking. A different Jefferson County judge said no, and
Miller died in prison while appealing.

The Norris and Miller cases illustrate the differences in the way
Alabama courts are handling a change to the state's Habitual Felony
Offender Act, sometimes called "Three Strikes and You're Out."

In 2000, the Legislature amended the law to allow lighter sentences
for habitual felons with nonviolent backgrounds. The hope was that
judges would evaluate the records of aging prisoners and determine
that many were safe bets for parole. Cutting the ranks of prisoners
facing life behind bars would save the state millions in prison costs.

But only a handful of prisoners have been released.

Meanwhile, Alabama's prison population is again on the rise after
more than a year of decline. The Department of Corrections houses
27,800 people in space for 13,000. County sheriffs, fed up with
perennial backlogs of thousands of state inmates in their jails, are
back in court demanding relief. Experts regularly turn out reports
calling for shorter sentences and alternative punishments to curb
prison growth. Yet men who've served decades for less violent
offenses go nowhere.

"There are a lot of people that see the problem, but there's no
consensus how to handle it," said Vernon Barnett, Gov. Bob Riley's
deputy legal adviser. Next month, Barnett will urge the Legislature
to pass a package of prison-reform measures.

Barnett predicts increased examination of the habitual offender law,
which can inflate sentences a decade or more, often based on a drug
convict's previous minor crimes.

Until the 2000 amendment, offenders who had three prior felonies of
any sort had to be sent away forever on conviction for a Class A
felony, considered the most serious. With drug trafficking classified
as Class A, someone arrested with an ounce of cocaine or 2.2 pounds
of marijuana could be imprisoned for life, no parole. The law meant
burglars and drug dealers were spending more time in prison than some
murderers.

The 2000 amendment gave judges the option of sentencing these
offenders to "life," which generally means 30 years in prison with
parole possible after 10. After realizing that several hundred repeat
offenders sentenced between 1980 and 2000 were not eligible for the
same breaks, lawmakers made the amendment retroactive in 2001.

State isn't keeping track:

Bureaucratic delays prevented any paroles until a 2004 Alabama
Supreme Court decision in favor of Junior Mack Kirby, a drug
trafficker, who became the first life-without-paroler to be freed
under the amendment.

Kirby, 62, went home to Jackson County in June. He had lawyers, as
did some of the 30 or so prisoners who have received new sentences.
But the re-sentencing is not automatic. Prisoners must file appeals.

And while an informal network of family, friends and "jailhouse
lawyers" - inmates self-taught in the law - have shepherded some
appeals, there is no formal state system to handle the cases, some of
which require complex arguments. At least four eligible prisoners
have gotten released, but no one is keeping track, so the complete
number is unknown.

In a few counties, judges have led efforts to get prisoners
re-sentenced. But judges' interpretations of the law vary widely.
Some say the law excludes those with a prior robbery because the
Legislature used the word "nonviolent" in the amendment's title.
Other judges have ordered new, lighter sentences to offenders who
have a robbery conviction, as long as the three priors were
nonviolent and the offenders behaved well in prison. At least 15 men
with robbery convictions have been re-sentenced and are awaiting
parole hearings. Still other judges have refused to resentence any
repeat offenders.

With violent convictions included, the number of potentially
parole-eligible inmates soars to 955, according to the Alabama
Sentencing Commission. In its extensive analysis on the habitual
offender law, however, the commission says that violent offenders
should not get the shorter sentences.

The commission's official estimate finds that 60 inmates serving life
without parole and 248 serving life could be eligible.

Hundreds? Thousands?:

Montgomery lawyer Bryan Stevenson, executive director of the Equal
Justice Initiative, a nonprofit law firm that represented Kirby and
other habitual offenders, including Norris and Miller, believes the
Sentencing Commission's estimates are low.

"The Legislature was trying to get people out of prison who have no
demonstrated history of violent behavior and who pose no serious risk
of violent behavior on release," Stevenson said. "I think there are
hundreds and maybe thousands who, if their cases were examined, might
meet that criteria.

"For example," he said, "arson directed at an abandoned tool shed may
not be the kind of crime that should keep someone in prison for life
with no parole. There are some folks with robbery convictions where
they were accomplices or otherwise did not do anything which would be
considered violent."

Some judges have agreed. Appeals courts have left it up to the judge
to determine nonviolence based upon "the nature of the defendant's
underlying conviction, other factors brought before the judge in the
record on the case" and information from the DOC and the parole board
concerning the inmate's behavior in prison.

Big prison expense :

Unquestionably, the aging prisoners who linger behind bars because of
enhanced sentences are expensive. Many are in their 50s and 60s.
Graying prisoners and their health problems caused the Department of
Corrections to spend $13 million last year on off-site medical care.
That's in addition to the $51 million paid to the prisons' contract
medical provider.

Miller, who was undergoing cancer treatment when he died, would have
faced a minimum three years in prison without the habitual offender
enhancement that bumped his drug trafficking sentence up to life
without parole. "Mr. Miller's only prior convictions, minor property
offenses for which he served 13 months' hard labor, were more than 20
years old," Stevenson said.

Jerald Sanders, a thief from Mobile, became the poster child for
Alabama's habitual offender woes when he stole a bicycle from a
screened-in porch in 1994 and was sent to prison for the rest of his
life. The 50-year-old's sentence has been reduced, but he has not
been considered for parole.

"We're angry at that person for stealing the bike, the lawnmower, but
they're not gonna hurt anybody. We need to save those beds for people
who commit murder," said Barnett, the governor's legal adviser.
"Everyone wanted the war on drugs and to 'get tough on crime,' and
while everyone still wants to protect society, they realize that
didn't work. We're not protecting society like we thought we would.
There are better ways to do it."

Starting over at 53:

For Norris, the 12 years he served for drug trafficking "seems like a
long time. But a lot of guys are doing longer for less than what I
was into," he said in an interview at his home outside Trussville, 22
miles from St. Clair Correctional Facility, where he did most of his time.

"It seems like it's so far away, but it's not, just up the road in
Springville," Norris said, sounding adrift at adjusting to an outside
world he never expected to know.

No one is more surprised than he at this sudden freedom, and his home
reflects that. It is meticulously tidy, his mail laid out in rows,
neatly as was required in prison. Worried about the cost of
utilities, he keeps the heat down and wears layers and a knit cap
indoors. He cooks a lot of cornbread, a holdover from his last months
in prison when he was assigned kitchen duty.

Norris wishes he could work more. His job in heating and
air-conditioning is part-time. He's happy about reuniting with his
four children and elderly father, and tries to be of use, offering
his strength to do odd jobs for relatives who live nearby. In
January, he'll start a computer class at the public library.

"Pretty much, I'm starting over, and I'm 53," he said.

Norris had three drug convictions from the 1970s and early 1980s when
he was arrested in a police sting in 1993. He was convicted of trying
to buy 19 pounds of marijuana. A Jefferson County judge had no choice
but to sentence him to life without parole.

He filed a slew of appeals, all of which were denied. By 1999, Norris
accepted his fate and moved into St. Clair prison's honor dorm,
reserved for prisoners who abide by a strict code of conduct. "We
tried ... to stay above the riff-raff of prison," Norris said.

Many of his fellow nonviolent habitual offenders remain in the honor
dorm, trying to get their sentences reduced under the Kirby decision.

Maybe it's the paralegal certificate he earned in prison, but some of
Norris' comments sound oddly like the lawyer's from the governor's
office. "I know the police and courts and all are all concerned with
drugs, and the way the country's going. And (prisons) are a necessity
and some people have to be there, and there has to be some law and order.

"But the answer on the drug problem doesn't have to be to lock them
up and throw away the key," he said. "I think everybody knows that."