Law enforcement: Class D felony ‘experiment’ a failure

By Mary Sell  

For the Enquirer 

Emergency responders were called for suspected drug overdoses at a home in Hartselle three times during a recent 10-day stretch. 

But the known drug house has been a problem for the community and Police Chief Justin Barley longer than that. And because of current state laws regarding Class D felonies, including possession of controlled substances, it could continue to be a nuisance and safety issue, Barley said recently. 

“The issue with the people in that house is that it’s all (drug) user-level activity. They’re going there to use,” Barley said. 

Search warrants have been executed, and traffic arriving or leaving the house has been stopped by officers in an effort to find more serious offenses. 

“… There’s been a lot of aggressive efforts to try to correct this problem, but the issue is they’re Class D felonies,” Barley said. “Those offenders are out of jail before we finish our reports.” 

Barley and other law enforcement officials are asking lawmakers next year to change a 2015 law that created Class D felonies for nonviolent crimes. They do not require prison time. Prison crowding was the impetus for the law change. 

Because Class D felonies do not require prison time, Barley says they don’t deter some people from committing drug possession crimes and some of the property crimes that can go along with drug use. 

“If you know you can’t go to prison for that, that becomes a problem for us,” Barley said. 

In fiscal 2021, 5,036 people were convicted of Class D felonies, which previously would have been Class C felonies, according to the Alabama Sentencing Commission. Of those offenders, 758 were convicted of multiple Class D felonies. Sentencing Commission Executive Director Bennet Wright said in 2020, 81% of the Class D felonies were possession of a controlled substance. That can range from heroin to a prescription drug that wasn’t issued to the holder. 

If lawmakers want to now change that law, they will have to find more prison space, either by creating or leasing more bed space, or releasing other prisoners, Wright said. 

“I really think it comes down to the fundamental conversation about what we want our prison population to look like and to what degree are we willing to resource it to incarcerate all the people we want incarcerated,” Wright said. 

Prosecutors have disliked the Class Ds since their inception, calling for changes in 2016. They’ll ask again in the 2023 legislative session. 

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Wrong message? 

“The Class D ‘experiment’ has failed, in my opinion,” said Barry Matson, executive director of the Alabama District Attorneys Association. 

Matson said by not forcing drug users to change their behavior through the threat of prison time or drug treatment programs, the state enables them. 

“We’re not beating the drum to send somebody to jail for the first offense of a stolen credit card,” Matson said. “But we want to stop the behavior, we want them not to repeat it and think it’s acceptable and the Class D, to me, tells them this is acceptable.” 

Under the law, anyone with any three previous felony convictions who commits a Class D felony will be punished for a Class C felony, which includes prison time. Class C felonies carry a sentence of one to 10 years in prison. 

But a lot of bad can happen between that first Class D conviction and a Class C, Matson said. 

Barley recently reached out to Sen. Arthur Orr, R-Decatur, about the situation in Hartselle. 

“There appears to be a problem and it is time for us to look at what may be a revolving door with some criminal activities,” Orr said. 

Orr said he wants to talk to prosecutors and judges about what they see in repeat offenders and ask what they might recommend in potential changes to the felony classification law. 

Barley, who has more than 20 years of police experience, would like judges to have more leeway in sentencing, including an option for prison time. Sometimes, people need to go to prison to change behavior, Barley said. 

“People know they’re not going to jail, there’s no fear of going to prison,” Barley said. “… To have that as an option would be a good starting point, I think.” 

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Prison shortcomings 

Carla Crowder, executive director of the Alabama Appleseed Center for Law and Justice, said she understands the frustrations of some law enforcement members. 

“However, we cannot pretend that prison time for drug possession solves the problem, not when drugs are more accessible inside prisons than outside,” Crowder said. “We are aware of cases in which people are incarcerated for marijuana and leave prison on fentanyl. People are incarcerated for low-level property crimes and leave prison in a body bag. There have been 55 drug-related deaths documented in ADOC facilities this year alone.” 

Meanwhile, ADOC’s own reporting shows drug treatment is almost nonexistent within the prisons, Crowder said. 

“Fortunately, evidence-based treatment for opioid use disorder and substance use disorder, outside of prisons and jails, is increasing in Alabama, with promising results, but not in prisons and jails,” Crowder said. “The solution is to treat addiction as the medical problem that it is, to expand Medicaid and expand the use of medication-assisted treatment, which works, and not continue criminalizing addiction as we have for the last 50 years with tragic results.” 

Barley said he’d like to see more resources put into drug courts, which offer an alternative to prison through drug treatment programs. Those programs vary in scope and availability around the state. Barley said there is a population that can be successful in those programs, but others who “it is clearly not working for.” 

Wright said there is one thing that all sides can agree on: There is not enough available, affordable, effective drug treatment and mental health treatment in the state of Alabama. 

“If we’re going to take individuals who have substance abuse issues and not treat those issues and all of a sudden we hope for better results in the future — that just doesn’t make sense,” Wright said. 

Cam Ward, director of the Alabama Bureau of Pardons and Paroles, was a state senator and sponsor of the 2015 crime bill that created Class D felonies. He said law enforcement has some valid concerns. But they also have other options if they think incarceration is needed. Class A misdemeanor convictions result in up to a year in jail. 

“The reason that doesn’t happen is they go to county jail, not prison,” Ward said. 

Barley said that especially for small towns, the cost of housing an inmate at a county jail for a year is a concern. And, his experience is that prosecutors don’t want to charge people who commit a felony with a lesser offense. 

Wright said Alabama is unique in that the state pays to incarcerate felony offenders while local governments pay to jail misdemeanor offenders. 

The 2023 legislative session starts in March.