RECE% V ED ith1L1media.al.com/wire/other/Read the Judith Ann Neelley...Case 2:14-cv-00269-TFM...

RECE% V EDIN THIJT&ED STATES COURTith1L1 DISTRICT OF ALABAMA

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, rcDEBRA' P

JUDITH A. JP

Plaintiff, §

V. § Case No.: : ,(-. cy-

ALABAMA BOAR]) OF §PARDONS AND PAROLES,

§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

Case 2:14-cv-00269-TFM Document 1 Filed 04/10/14 Page 1 of 18

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 deathof 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), writquashed, 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).

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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 theGovernor to life imprisonment shall not be eligible for a parole fromthe Board of Pardons and Paroles until he shall have served at least 15years of such life sentence, and any parole granted contrary to theprovisions 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 sentencesfor 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 toone of life imprisonment is derived directly from theAlabama Constitution and is, therefore, not dependent uponany grant of authority from the Legislature. It is true that,pursuant to the Capital Offense Statute, the only sentencesthat can legally be imposed by a judge upon one convictedof capital murder are death or life without parole. Thelegislation restricting a trial judge in such a manner,however, cannot be read to restrict the constitutionalauthority of the Governor to commute a death sentence to aterm less than life without parole.

Regarding the Board's second inquiry, the foregoinganalysis plainly leads to a conclusion that the Governorpossesses the authority to commute a death sentence toeither life or life without parole. Therefore, when theexecutive branch exercises its constitutional authority tocommute a death sentence, the resulting sentence dependsdirectly 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 maybe 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 oneof 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 statecourt determinations of what the Constitution requires."). In particular, "[w]hether

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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." Carmellv. 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 monthfollowing its passage and approval by the Governor, or its otherwisebecoming law, provided however, the operation of this act shall beretroactive 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 anImpermissible 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 changethe judgment of the court, and the commutation abrogated thesentence of death imposed by the court, and substituted in its stead lifeimprisonment in the penitentiary. The judgment, after commutation,had the same identical legal effect as if the jury, by their verdict, haddeclared that the defendant, as punishment for said offense, shouldsuffer imprisonment in the penitentiary for the term of his natural life,and there had followed the verdict a judgment of the court sentencingthe defendant to life imprisonment in the penitentiary.

Commutation does not affect the judgment of conviction. It simplysubstitutes a less for a greater legal punishment, operating as areaffirmation of the judgment of guilt, and may well be referred to thejudgment of conviction rather than to the act of the pardoning power.In other words, this defendant is a life convict under a judgment ofconviction for murder in the first degree which was pronounced uponhim 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

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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 theAlabama 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 bedivided into three distinct departments, each of which shall beconfided to a separate body of magistracy, to wit: Those which arelegislative, to one; those which are executive, to another; and thosewhich are judicial, to another.

Section 43 of the Alabama Constitution provides:

In the government of this state, except in the instances in thisConstitution hereinafter expressly directed or permitted, the legislativedepartment shall never exercise the executive and judicial powers, oreither of them; the executive shall never exercise the legislative andjudicial powers, or either of them; the judicial shall never exercise thelegislative and executive powers, or either of them; to the end that itmay 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 AttorneyGeneral added the following legend to Opinion No. 99-00122: "Before citing, seesection 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 anUnconstitutional 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 SouthBirmingham, Alabama 35205(205) 930-5100 (Telephone)(205) 930-5101 (Facsimile)bragsdalesirote.com

V ON, V'A

MCPHILLIPS SHINBAUM, LLP516 South Perry StreetMontgomery, Alabama 36104(334)(334)i ulianmcphi] 1ipsmsg-1 awfinmcorn

Attorneys for PlaintiffJudith A. Neelley

A copy of this Complaint has been served on the Attorney General of the State ofAlabama, as follows:

Hon. Luther StrangeOffice of the Attorney General501 Washington AvenueMontgomery, AL 36104

18


Exhibit A

Case 2:14-cv-00269-TFM Document 1-1 Filed 04/10/14 Page 1 of 2

81253275418 P.01JAN-15--1999 11:19 FROM GOVERNOR'S LEGAL OFFICE TO

STATE OF ALABAMAGOVERNOWS OFFICE

FOG JAMES, J. MONTGOMERY 36130GOVWO

January 14, 1999

Alabama Supreme Court300 Dexter AvenueMontgomery, Alabama 36130

Circuit CourtDekaib County CourthouseFort 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 GENERALI

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flonorab1 Donald L ParkerA01I,i BXdoUtLVe Director

• Board of Pardons atid PeroLeLar1em B WeJtec Building500 Monroe SreMontgOinety, AL 36130

Pardwis er4 Parot4a - Pardons andPiro Tea aoard - Sentences - CapitalP"Mahment Crimes and OfI'iiaes

Under the Conatttit!on of Atebamrithe power to c*n*nute S sentetwoordeath Is vested exclusively tit th

• Governor, Ivrt1termore, the author,-ity Is onstLtul*n811y uurutricted. -Therefore, this Goveraor may cornsfflute a death aentenco to a teas-er

• aaiWnee ctbrwiae unatflhailzd by• atautn. When the authority In

caed, the resulting entaite dependsdirectly upon the specific order of

• - the GwcYnor.

If a death sentence 13 ComIfluted to• "I1fG" putnnnt to neQton 15-22-21,

tho peisaner-must acrVe at tenet 15years from the date of the commuta't(on in order to become eligible for

• • parole.

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02/ 6,9 TUV vx 3343038444 AL.&. ALIY cIWL - MIL

honorable Donald L. ParkerPage 2

Doas Mr. Parker:

ma optruon Of the pittory General Is eaUd Ift raaponft t

OUK-SITIONSMil'

Aecs 111a CapItal Offnaas statute Passedin 19i (section 13A-5-39 of the Code of AL1-baina), witch requires a sentence of 'death" orlife without parole" for a oonvietio,i of a Capital Odense, eoaflit with section 13A..22.27(b)of the Code paaed In 1951 which statcs theGovernor anny cozflmLto a death acnwnoe to alife" sentence for wttich 1i dvfovkd ant may heparoLed aCtor acr y ing fifteen (ii) yoiLrs of thatsencenee?

- I Doee the Governor's eommutlng of a deathsetttenee 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 deathaentence to a tcnce not authoizcd by RtAtOtO, 'I'be answer to that41jesL!on is yes. "Under the Constivtttiva or Attbarna, the power to o.ocnmute A death 8CfltaaO is vcated ex61uave17 In she Governor." WIIB Oil V.

• Statts 106 So. Zd 0 (Ala. i95), citing ALA. CONST. 124 (arnondit93). y utkermue, othor than appl'yIns only to death aentenoa, nothingin aviWon 124 restricts the Governor's p4wat ornrnmutaticnt:

joveftinrahalIvppwer topcpricve)flflIuLakflto COVLQI5 under

I eantattea e(do.a1. The legislature shall havepower to pvovWa for and to regulate the admini.stratlon of prdons1 paroles, re. ThIsslon of tines

• an4 f6rfelturts, 10 may dUthOr2e the courtshaving crlmltial Jurladlotiori to suspend aenteneeand to order probation. No pardon shall cohn-ye

II

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ru 043 Pt ALA. AtTY CEN'L - CiVil..

III

IIIIIII1I.

td

Ronotble Donald L ParkerPage

from civil and political disabilities uales spe-elficaLly expressed in the panics.

ALA. CONST. 0 124 (amended 1939) (emphasis added)'.

Alabama's Capital OfTeue, Ststite Is set forth In seetIon 13A-.39through IA-5-59 of the Code of Alabama. A capital offense is "(amoffense foe which a defendant shall be punished by a sentence of death orlife imptisonment without parole. ,." ALA. CODE 4 13A.549(l)(1904). The Code frtherptovide that iu]pon conviction of a defendantfor a capital offense, the trial CO1Tt Shall conduct a aepatete sentencehearing to determine whether the defendant shall be sentenced to ljflutprisoament without piuole or to death." ALA. CODE § 13A.545(a)(1994) The law is clear in Alabxb4 therefore, that the only two sea-tecxces available to any individual convicted of capital ntgdiu are Ufewithout parole and death. This restriction appears to conflict with thefollowing povisions of the Alabama Code which, as is eorrct1y nutdwithin the Board's inquiry, were enacted thirty years pr ior to Alabama'sCapital Offense Statute.

(a) Any person whose sentence to deathhee booi commuted by the Governor to lifeimprisonment shall not thereafter be eligible forPL pardon UnleSs sufficient evidence Is presentedto the Heard of Pardon and Paroles to satisfy itthat suchperson was Lxznocent of the crime forwhich he WeB convicted, the board votes unani-mously to grant such a person a pardon, and the

or niunip tea of stale ccnsUtutivns that limit or authozize fWfadvas or regulations onthe power to pardon or commute. see Aiiz. Conat, art, 5, 5 (providing "t]hs GovernorShalt have power to grant rcpxieves, commutation, and pardons, after convictions, for allojThnsea except treason and eases of impeachmcn1 ilpdh such conditions and with suchrestrictions and limitations as may be provsacd by law"); Jwi. Corsi. 7(providing "[t]he pardoning power shall be vested In the guvaniQr, under regulations endtetdctlzis prescribed by low"); MIA Coast, art,, f 14ptvfdng "the governor diallhave power to grant reprieves, commutations, and prn*as after convicUons for allofteses, eept cam otImpawhinav4 upon such conditun, and limitations as hraaydirect, 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 only togrant 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 suchregulations and restrictions as may be prescribed by law").

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Govsrnor concurs In and appO'*a the granting orthe pardoi

(b) Any person whoa sentence to deathhs been oinrnutd by tho Governor to lifeltzonfl*et ehall *ot beeligible far a parolefrom the 5otd jof PAYAOns apd Paroles wttlt heshsfl have eon'ed at least IS years of auch lifesenteec q , aUd nay parole grmkted contrary to theprovisions of thIs inibsectioit shall be void,

ALA. CODE I 15422w27 (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 aonftiot, The referenee to a life 8entCttoe 1 hoVVer, Is tuada In the context

of the Ooventor'e poWer of voi1mutt1on. The Legislature's dcci.sion todesigaarc only two avallable sentenoes for a cepital murder ronvictlon has

O .ffct on the OxsoutivO's unlimited authority to commute a death son-tenco. Baa ause the Qovcrnoa power Is not coøstituttortalty restriatA74 toonly these sentancas atirizorized by Xtatute, there e no COW 1104 betwoonthe 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. inSbJ k v. Reed 4 U.S. 2S (1914), the UnIted States Supreme Courtaddrasse a uetoiz eancernln*;he extent of the presidential pardouiugpower contaLned in the tinitc4 States ContttutIon. The fdera1Conutttt*..ttort specifloally bestows upon the Prosideitt the "Powt,t toR.prie've5 and Pardons for Off lea agthiit the United States, except inCases of Intpeachmsnt 'U.S.CONST. art. U, 2. The petIUout in

ch1ck. had been scatnoc4 to desth by a Ooart martial PUTSUt1t toth. Unlinodc of Military lustica. SubsequentIy, Piesident Eisenhower com-

muted his death sentence to life imprisonment subject to the coyJJttonthat he would not theresfiur be etLfb1e fur parole." 419U.S. 15d, 27 (1914), One Issue raised In the es'Eisenhower ocoecdcd his powers under A gt. 11 by ipocfttg a condition

nut eprescLy ant ,ried by the Uinfortn Code of Military Just; Co. Inas;awening tla question In the ne5aive, the Coutt hold that " j Jn flgftt tirthe EoRell common law from whIch sich Iangua Was drawn, the cncluclon N Inescapable that the pardoulna cower was Ix ended to iu4ludethe power to commute sentences on condition which do not in thcmselvmnYFen4 the Constitution, but which are not specifically provided by stntute," td. as 265. The majority opinion emphaaiad that the only limits onthe prealdentmni pardoning power are those contained wilhia the Cwt3tizu.tiott Itself, Id. at 166-67i T1ctefon, nrty requiretitout that the executive

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comuut e a S gn t a llos to OUC KUthori gdd by atatu(e woUld PlaCe UnaUtr[eduorigrinai restelotions ion the pardoning power. (CI,

In re9o1vng the issue in the united 4tates Supremediscussed 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 tIipredtiUat pardonftg power nd for similar olauca 09AIRittad in earlyStRIC 000511ILLUVa p, Tbo Court ocptalned ci tack of debate on (ha jasuttdt

I

ring the CouiItUik,ua1 Convention b' notial that 'the daftsmon werewell 46qurit44 With th. Bngllsh Crown Autharity to alter and reducepumoote as It existed In rit." Id. ILI 260. The Court described thatehor1ty, in por t, as foHoW

Virbus types of ondt Ions both ponat andnoupcn*l in nature, were employed For exani

• ple It WJ common for a pardon Or couufluta(iortto be granted ois condition that the felon betransported to another plaee, and bi4oed our ownColonies were the reotptente of nuneraua e,ib-Jocra of 4 banlahruent.' This practice was neverquettoned despite the fact that British subjeotsgenerally could cot be forced to leave the realmwithout an Aot of Parliaznont and banishmeitt wasrarely auchortZ4 as a punishment for GTImO.

U. at 261. Tfre. history Informs na that, at the time of tho adoptionof the federal end early arare eonstitnttona, the English Crown was excrcialag the right to attach cndiUone to Conimutations that weia trnaathor-Jznd4ay Parflantaili. Ukewlec, baeed upon tha(r consIitutional authority,"Presidents throughout our history as a Nation have excolsed the powerto pardon or commute 844toncts upoti oondlitotis that etc net apeotfloaiiyauthorized by statute.?' Id. at 266. "(TJhe power flows from the coned.tutiou alone, not frotri diay legislative Onaletfiten4a, and, rtheretorc,J itnot be inudifled, abridged, or diminIshed by the Cuno,.' (I,

riot uAll .ko this prgsidenthil p;vdordtis poWr, the governor'sauthority In Alab4rns to coalmuto a death sentence is doth-ed JIrantly£c'oln the CoatitutIon Itself. it Is not dependent upon the petMjSSjqj, atthe IqlalatiYe bnOh nor Is It sucepiible to Legislative rGstriotialls. TheAlabama 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 by the Legislature to tutriut the Governova power commutu.-

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tiou would violate t}ie ratton of powers doctrlae, *et forth Ih the Ale-beina Constitution to Follows:

In the g1Ycrnu1cnI of this tte, oxoep$ inthe iftstan g edinstanced In this coustitution he:nnAre*preaaly dizcttt or pernt1tted the Legislativedenrtient ehiit n.er oiercLse the eeattve andJudlolat pawora or either of tltem the executive

li gjl never exer1ae tho lOie1Uii1re and judic(aIpowerA, or either of them; the juct1cul shall neveroxot1e the legislative and exacudve powsve oreither ot' them; to the en d thst it n4y be aerttmet of laws and not .of meti

ALA. CDNST, art. UI, 143.

A dterniiate1101% that the Lejs)atute has oti authority to reelrIt thoGovernor's power of cdtnMutatlon is lkewlsc consisceet with Alabamapeecoenc, While the Precinct leSne as rdatvd to mnutstion may nothave arisen, Alabama oouite hitvc struck down legislative atterapte, tointrude upon Otecutivo power to grunt other forms of dlemetley. So

163 SQ. 365 36* (Ala. 195) (at&tlng that "wherethe purdoiting power is conferred on the, executive withoid czrcsa orImplied lIm ationt the grant is exalitsivs. andilte legislature can noIthcta*accie such PoW15T ftelf not dclegtc It elsewhere, nor inter['oze with orcontrol the PTOPerexeraiRe thereof, as by imposrag conditions to the fullenjoyment of the rights co'ferted by anch par don ,'); State Fx Rai._St Al v. Stn* CutiTreaauej 139 So. 325, 330 (Al93)hLdingthat "bjy eonfovrin the1 riglr to remit flues imposed and forticuresaccruing 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. SeeCarroll v, R!y*ey 953 S,W.2d 07 1 661 (Tuna. 1997) (twIdln that 'thocommuicki seutonce of 22 years to life impaeed by the 46overmorwas aprepeT aeooe of ith authority wider article 111 6 of the TeiinseeConsfltutlou, even if 00TISido god an Indeterminate term that could not have

under the atatutea by the Judge or jury when the doMdant

124 of the Al2bS Crnstituth,ci theIn additaa to the paw9r to grant reprieves and conuLutattoos, had the

authority to rentit flats and forFbires and, afccr cotwicllon. to grant peoiea and pa4onsexcrpt in oases of impeacbtnant, ALA. CON$T. 1124 (amended July 21, 1939, by

Ameudrnent r1c.

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convkted") Coleman V. Ohio Malt Paole Aethority, 685 N,L2d241 (Ohio Ct App 1996 (hOldlii that 11itise the pant of the elem-oy power with respect to commutal1oe and rptIvO$ Ia unfettered, any

• regulation by the Oørteia) Aa$embb' that acts to limit the Ovvcnoc'apower to grattt commutationfi or reprcvu Is a violatIon of thelion"); EASKILt.tO1 333 P4 2 d 741 (Or. 1958) ( .5tating that u(w1h0r.

40nt1tuttOl% thus nIcra unlImIted power 0o the covernor to grantieprtevea, oomntntattons OVA pardons, tiW diecrettea oannot he controlledby any JudlolaL doelslort t'); Green V. 1er45jj1 .246?. it 39 (Cal. 152)(ctiu doftncIonta arutrt.nt hst a Governor could not commute, hisdeath aentonee to LIfo without thepoibiIIty of aro1 bcau the onlypwi lh,nent etbiIhed for the offense of fltat-dogreo murder by thelegislature were death and life with the possibility of parole).

P1naI1y, it N4io qlld be noted that while the Oovornor 1 e power ofcomnuttattoü may be restricted, the Lels1at.zre ma enact laws torettdor its o0raise oonventønt and offlciauL" Fuller Y. Sint, 26 Sa, 146141 (Ala. 1899). At the time! ie w$4 doo th Oovraor bad theconstitutional authority to grant pardons, Constitution of 1875, art. V,

12. The_Fullor oourt approved of legidailon wtLichprovIdrd that tho.Governor, pursuant to him c qnathutlenul authority to pardon, could parolean Inmate oit good behavior and, upon the failure of the inmate to observrsthe cui1dito15 of the parole, direct tho rearrest and tettant of the Inmate tocustody. Id. at 147-49, Likewlzei , although it may not restrict the power.the Leglalature may onnot laws that tender the Overuur'a taereise of Ikeauthority 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 betweónAlabama's Capital Offenan Statute and Section L-22-2T(b) of ibO Cede ofAlabama. The latter provision sImply aets forth uldcIkoa rag dingparole eligibility for '[a]ny person whose setitence to death has booncomniutod by the Governor to life imprlaonxiiont." The ()cvernor'sauthority ta commute a death 90I1t5$tOC to one of life imprisonment Isderived dkcetly front the Mabaitia ConstItution and ts therefore, oatdopmtdant upon any grant Ut' atitliiirity from the Legishijute, It is truethat, pursuant to the Capital Offetise Statute, the only BCJ004090 that canLuUy be Imposed by it judge upon one nv(ctd of capital murder codeath or life withoUt parole. Tho Legislation reatrktiag a trial judge Insuch a manner, however, cannot be road to restrict the conetitutioal

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auchotity of the Qoverflor to commute a deatit sentence to a trm less thanlife without parole.

Regardiug tho Bond' eoad IOUITYI the foregoing atyalaplainly Leads to a cflçliitofl that the Oovurn.or pOBsO$5e5 the authority tocommute a death 5vntanoa to either fife or life wfthoul parole. Therefure

1ien the çxcoutg vc brañk Oxerolsea Its constitutional authority toflIO a death aentenec1 the resulting sentence depends directly upon thepacific order of the Governor..

tThes section t..22-27(b) of the Codes whichCtRIP- -oetatn whose sentence to death has- -..-- been commuted by the Governor to life impris-onment shall not be eligible for a perole [aiu thBoard of Pardons and Paroles until he shall havc

I served at kent 15 years of such IIe &nteuce, andany proic granted contrary to the prorlaloca ofthis sub Section shall be voids" rquke a dcfcm-dant to serrv fifteen yctra from the date ofthe Governor's commutation to the "Jjf& sea..tCIiCç or Serve the fifteen 03) years from theorIginal sentencing date?

• FACTSA MD ANALYSIS

I The finding above, that the aovernor pusseases the Constitutionalauthority to corjjuiUtC a death sentence to one of life tntprlaonment, tcadto the Board's thLrd Iflquir)', and tu interpretation of the fullowing statute:

(b) Any person whose scotonce to deathhas been cummuted by the Govoriwr to fifeLrapriontnent shall not be eligible for * parolefrom the Board of Pardons and Paroles until heshall ha ys serv ed at least 15 years of such fife

• seteflde, and any parole gante4 contrary to theprovisions of this subsection shall be void.

ALA. COT) 15-22-21 (1,75).

Initially, one might qtiestloa whether Section 15-22-27 cgnat1tutsan unauthorized restriction an the executive power of commulatio. It

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Honorable Donald L. Fararpage

does n, As was dIsuesed xtenh'uly In response to the Board's tlxsttWOIULILOS. the Governor plainly ha the constitutional authority toqqjUmuxc It çIaih snteis qe to a ta ices than li C without proie. IfpoWcr La oiccrted, however, the quostlott 9 f proIo OUSIbility 1.0

ttth,nnity deferftd to the i.eglstnture. In fact, the teahluture v e aiihortty-in th*t regard is dortved from the seine copsIltu tiOlial proviio(t that great*the egootLve the pnwer of cordmutation,

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The governor shall have powor to ga2Ltreprieves and c9mmutial tions La persona underantcn0O of denib. 7AP 1cjçuro Shall have

or to vgovide for. and 9 rcamkttjhe admliil.stratton ol A°L

trliiarea nad may authôrzo the oourtsbaying CTJXnIIIUI jurisd1t1on to ,iuspend sentencemid to order probation. No purdqn shell illvetrout iv1I aitd pltttcd dliabIlLtics uritese epe-ctfiOdlIy expressed lit the pzrdon.

ALAI CONSV. § 124 (amended 1939) (ernpkusls added), Pnr gitt to theCottatfon theref'ore if the Governor commutas a death teutunee to aterat 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.3letaparoles, the question to be resolved Is whether the 13 years, refed to insotion 15-22.27(b)1 begins to rutton the data of the original death son-Cenoe or the date of the executiveorder granting oO ynmktattan. Theanswer Is found within the plain Language of the statute itself, Black'sLaw Eflotionary doftnee oommtnatton' 1 as an "atterattun; uhane; iubst[tucLoi; the at of substituting urc (Wag for unothor in criminal Law, thechange uf a punlabMinat to QUO W1*ish ia less s'el' as from cccutin toflfe Imprisonment." slack's Law Ditioniuy 192 (61h ed. t991). TheGo ycrnoz's It*lFoa, Lherefori, results In the substitution of a life Sentence,for the ptv1øus death sentenee. it aeaestarily follows that the indlvdualIn question would begin serving the We sentence on the dale it came intoeffeim i.e the dale of the Governor's order,

Iurtborinose, the wording of the provision plainly provides that theLito sentonae Is it new sentence of whloh the individual in question mustserya 15 years In order to become parole eligible. Specifically, the att-uto mandates that one shall not be eligIMo for parole until he shall haveserved 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

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or thIng. indicated," The "thing indicated" here Is the life sentencerauttlng from the aCtIQA of the Governor. The plain zntaninS of the aLa.

• ute can, therefore, be stated as follows: Any person whose death etiekne bocn commuted to life 1myrisonment ghalt not be eligible for paroleuntil he shall have segvad at teaat 15 years of the iii'e uenca Imposed by

Ithe Governor.

ICONCLUSION

Based upon the plain 1auuago of section 152227, apaerwhose death eenta*oo hen been commuted to I1te must serve at let 15years from the date of the commutation In order to become eligible forparole.

I hope this opinion anwer your queslane. If thte Office can be offurther assistance, Please contact Clay 'enihaw or Michael BilIiu;aley ofmy staff.

Sincerely,

BILL PRYOR• Attorney Qeneral

qc4&:.CAItOlJE NM1TH

IChief,Opinions Division

BPIMB3499/1789

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