MONTGOMERY, Ala. – First introduced in 2015, the Class D felony has been the subject of criticism among some lawmakers and law enforcement due to its more lenient sentencing requirements. A number of bills introduced this session aim to alter or eliminate the charge altogether.
Among the latest of these efforts, a bill that would afford judges the discretion to impose harsher penalties for Class D and C felony convictions, was reviewed by the Senate Judiciary Committee last week.
Sponsored by Sen. Arthur Orr, R-Decatur, Senate Bill 198 received unanimous approval by the committee, though not before receiving a significant amendment and some pushback.
Under existing law, certain crimes that constitute either a Class D or C felony carry mandatory sentencing guidelines, which heavily limit the severity of a sentence a judge can impose. Class D and C felonies also require that a judge issue a split sentence, which allows for sentences to be carried out partly in confinement, and partly released on probation. Class D felonies in particular prohibit any jail time in terms of sentencing, and instead only allow for a community corrections jail alternative.
Senate Bill 198 would remove the requirement for judges to impose split sentences for Class D or C felonies, and would afford judges more discretion overall in sentencing.
As originally introduced, the bill would also modify the state’s habitual felony offender law – which progressively increases penalties for multiple felony convictions – to include Class D felonies. The portion was removed after Democrats’ pushback.
As of 2020, more than 500 people are serving life sentences without parole under the habitual offender law, with 187 serving a life sentence without the possibility of parole with robbery being their most serious offense.
A contributor to the bill, Barry Matson, the executive director of the Office of Prosecution Services and the Alabama District Attorneys Association, spoke during the committee meeting.
“We have created a class of felony that really has no accountability,” Matson said.
“I’m not sitting here saying we’ve got to put D felons in jail; that’s not the goal. What the goal is, is you want to be able to get those people in drug court and stop that cycle, and there’s just no recourse.”
Matson went on to say that because the Class D felony charge “had no accountability,” offenders – particularly those convicted of possession of a controlled substance – would often get caught in a “vicious cycle” of repeated arrests.
Sen. Rodger Smitherman, D-Birmingham, pushed back on Matson’s proposition that affording judges the discretion to increase penalties for Class D felonies would break the cycle of incarceration.
“The cycle that you talked about… this bill is going to send them into another cycle of staying in jail for the rest of their life,” Smitherman said. “Yea, it’s going to break that cycle alright, it’s going to cycle them into jail forever and ever. These folks are sick, and we’re fixing to take sick people and we’re going to lock them up forever, and that’s what this really does.”
Jail overcrowding was the impetus for the creation of the Class D felony, with examples of crimes falling under the charge including theft of between $500 and $1,500, fraudulent use of a credit or debit card, and most commonly, possession of a controlled substance for personal use.
Recent examples of bills targeting the Class D felony include House Bill 25, which would increase penalties for Class D offenders under the habitual felony offender law, and House Bill 271, which would eliminate the charge altogether, lowering the threshold for what constitutes a Class C felony to include Class D felony charges.
In an apparent attempt to address Smitherman’s concerns, Orr offered an amendment to the bill that would remove the inclusion of Class D felonies to the habitual felony offender law. The amendment received unanimous approval, as did the bill itself.
Alabama’s growing incarceration rate has been the subject of ire among some lawmakers as the state’s prison system faces a potential takeover by the federal government due to alleged inhuman conditions at prisons.
The bill, along with other bills aimed at increasing penalties for Class D felonies, has received criticism from state Democrats, including Rep. Chris Engalnd, D-Tuscaloosa, who called the prospect of incarcerating drug and nonviolent offenders “1990s criminal justice policy that is going to blow up our prison system.”