Get the Daily News Digest in your inbox each morning. Sign Up

AG Marshall: The causes and consequences of the 2021 early release law

By Attorney General Steve Marshall

On Friday, January 27, 2023, Alabama’s law enforcement community received notice that approximately 400 inmates would be released just three days later, on Tuesday, January 31, 2023. This was to be the first of many such prisoner releases mandated by a law passed in October 2021 during a special session. In describing to law enforcement what was to come that Tuesday, the notice never used the word “violent” to describe the types of offenders that would be released. As a matter of fact, the 2021 law dictating the early release never uses the word “violent” either, perhaps explaining why it passed by such wide margins.

As our state has started to grapple with the ongoing release of mostly violent offenders, one particular talking point has taken hold among those seeking to minimize the absurdity of this policy. The argument is: “They’re going to get out anyway.” This kind of oversimplified and unsophisticated rhetoric is exactly what got our state into this public-safety mess to begin with, just as “prison overcrowding” has been used to promote every bad criminal-justice policy decision in recent history.

The “they’re going to get out anyway” argument assumes that because most inmates are eventually released from prison, there is no harm in letting the worst offenders out a year early to see how they do under “supervised” release. There are glaring problems with this premise.

First, this kind of thinking ignores the fundamental philosophical question of whether criminals should serve the sentence imposed by the judge in their individual cases, or whether those sentences should be arbitrarily reduced across the board by new laws. As a career prosecutor, I believe that nothing is more important to the legitimacy of our criminal justice system than truth in sentencing—for law enforcement, for victims, and even for criminals. If we believe that supervision is critical to successful reentry, why must it occur before the inmate has served his time? You can believe in the value of reentry supervision, but also believe that an inmate should serve his sentence. In the federal criminal-justice system, an inmate serves his sentence and is then released to supervision.

Second, you cannot have an honest conversation about the 2021 law without addressing its Achilles’ heel: the law’s retroactivity. Mandatory early release first showed up in Alabama law in 2015, but at that time, the law only applied to those sentenced after 2015. This allowed the law to be more slowly implemented over a much smaller number of inmates to the benefit of all involved parties. Only 66 inmates qualified for early release in the first year following the passage of the 2015 law. In 2021, many felt it would be harmless to go ahead and retroactively expand mandatory early release to those sentenced before 2015. But this one aspect of the law created two major problems: (1) the mass release of prisoners, a few hundred at a time, for several months; and (2) a disproportionately violent group of inmates being released to supervision.

These two problems should have been easy to predict (and, in fact, were predicted and warned about). The mass release is a direct result of the bottlenecking of inmates that the 2021 law created by making a significant number of inmates suddenly eligible for early release as of a single calendar day. The violent nature of these offenders was also predictable, given that Alabama’s prison population is currently over 80% violent (and climbing) and offenders sentenced before 2015 who are still in prison are statistically more likely to be serving time for violent offenses.

The Birmingham area, for example, received 35 particularly violent offenders in just the first batch of releases. Thirteen of these offenders committed homicides. Two committed rapes. Twelve committed robberies. Mobile is getting hit even harder. Out of the 46 inmates returned to Mobile County in the first batch, seven of them were in for murder, two of them for attempted murder, four of them are rapists, and 11 are robbers. At a time when these cities are battling for safe streets, groups of violent felons returning to the county of their offense is alarming and will continue to be.

For all the assurances that this is somehow “good” for public safety, we now have a scenario where, due to the retroactive nature of the 2021 law, the State of Alabama is going to attempt to safely supervise a significant number of majority-violent offenders all at one time. This has proven difficult to do even inside our prison walls. The dichotomy of pro-supervision vs. no supervision is a patently false one—the real question is whether meaningful supervision is even possible when large groups of violent offenders are released all at once.

Consider that, in Birmingham, 23 field officers from Pardons and Paroles are presently assigned to 1,806 active offenders. In Mobile, 21 field officers are assigned to 1,407 active offenders. Knowing that the state’s total supervision load is vast (21,000 offenders) but is majority nonviolent, how have we prepared these officers to manage even greater caseloads consisting of far more violent individuals? How many violent offenders can a single officer be expected to safely supervise at one time? How can these officers provide a quality, individualized risk assessment for ankle-monitoring assignments when inmates are being released hundreds at a time? Better yet, how valid is the risk assessment we are using? We know that violent offenders recidivate at a higher rate, more quickly, and for more serious crimes than nonviolent offenders (per the U.S. Sentencing Commission). We also know that ankle monitors don’t prevent serious crime.

The implementation of the 2021 early-release law is not failing merely due to human error. It is failing because it was flawed from its inception. In fact, according to the bill sponsor, whether the early release of violent offenders en masse was safe or even feasible was “not discussed.” While it’s true that “they’re going to get out anyway,” these inmates would not be getting out all at one time without the 2021 law, and thus would not be overwhelming our systems of supervision.

Though we do not yet know what the full cost of this debacle will be in terms of lives lost, destroyed, and upended, the price of refusing to change course now is certain to be high—and will be paid again and again with every month that these releases continue.

Get the Daily News Digest in your inbox each morning.

This field is for validation purposes and should be left unchanged.

Web Development By Infomedia