The headline last week said, “Man freed in Alabama mass prison release rearrested after meeting parole officer with drugs, police say.”

I don’t know that man, but I can tell you what the public records show. When he was 19, he committed a burglary. He applied for youthful offender status, but was denied.

He pleaded guilty, and the judge gave him 20 years, with much of that to be served on probation. That was a sentence “enhanced” (or lengthened) because his burglary involved a deadly weapon. It was a knife.

He went to prison for a few years and then got out on probation, as his original sentence prescribed. But he had a positive drug test. The drug was marijuana. The judge revoked his probation. He was sent back to prison to serve the rest of his 20 years, less whatever time he might one day get on parole.

Although I don’t know what his experience was as a very young man in prison, the public record on Alabama prisons shows that he would have had plenty of access to drugs, and not just marijuana. After spending two decades in prison, he was apparently no longer concerned about being around peace officers when he had drugs and paraphernalia in his pocket (if that’s really what happened when he went to the parole office after he got out last week). That may tell us something about his prison experience.

He might have had access to job training—his court record shows that he sought admission to some programs while he was locked up. He might have had access to drug counseling, although some facilities in Alabama no longer offer that despite housing offenders whose sentences require them to receive it. With approval from a manager, his parole officer could send him to a drug rehab program in lieu of revoking parole, but that rarely happens. He will probably go back to prison to finish the final few months of his term.

Alabama is in a mess. How did we get here? How can we get out?

By 2015, the handwriting was on the wall for Alabama prisons. The United States Department of Justice had sued the State over conditions at Tutwiler, a prison for women. That same year, the legislature passed a number of measures to reduce overcrowding in the system.

Among those measures was the addition of Ala. Code section 15-22-26.2, known as the mandatory release law. The new law said that prisoners serving “straight” sentences should be released on parole shortly before their sentences ended. Studies commissioned by the State had shown that inmates who went back to the free world without a period of parole or probation were especially likely to re-offend and return to prison (or “recidivate.”).

As enacted in 2015, that section might have made a real impact on recidivism. But the Department of Corrections said the law only applied to persons convicted after the law was enacted. The Board of Pardons and Paroles said nothing to the contrary. That interpretation was odd: why would the legislature pass a law to reduce chronic overcrowding, but only in the distant future, as newly convicted inmates approached the end of their sentences 10 or 20 years down the road? To the legislature’s credit, nothing in the law actually said it applied only to persons convicted after the law was enacted, and there was much in the law to suggest it applied to everyone right away. At least one inmate challenged the restrictive interpretation, but his prison term ended before he could get a decision from the Alabama Supreme Court.

In other words, there was a disconnect between what the legislature wanted to do—reduce overcrowding and recidivism—and what the Alabama Department of Corrections, controlled by the Governor, actually did (or didn’t do).

Then the Governor took over the parole board in 2019. The prison population had been declining pretty steadily before that takeover, but the parole board slowed that down by stopping parole after the Governor took over.

It was hard to square the that takeover with the Alabama Constitution. In 1939, Alabamians adopted Amendment 38 to the Alabama Constitution, and that amendment says parole is the job of the legislature. Section 43 of the Constitution states the Governor cannot do the legislature’s job.

But a law passed in 2019 allowed the Governor to appoint members to the parole board even though legislature never approved them. And it gave her the right to appoint a Director of the Board of Pardons and Paroles and to fire him at will. The current Director is in her cabinet. I represent a client who is challenging the constitutionality of that law.

In the meanwhile, the State has been spending tens of millions of dollars in legal fees to defend lawsuits alleging that conditions in prisons were unconstitutional. In 2021 the legislature amended Section 15-22-26.2, the law passed (but not enforced) in 2015 to reduce overcrowding. The amendment put the hay down where the goats can get it. It made it very plain that all inmates were to get supervised parole before the end of their sentences, regardless when they were convicted.

But by 2021 the Governor had already decided to build new prisons. She ultimately committed to construction contracts worth hundreds of millions of dollars. Some of those new facilities would be built with COVID-relief money that would have otherwise have directed to programs to promote public health, etc., but in 2022 the Alabama Prison Finance Authority issued hundreds of millions of dollars in bonds to pay for the rest.

The new prisons are the collateral for the new bonds. No bond buyer or trustee wants collateral that is useless. Thanks to other measures that the legislature had passed, the prison population had been declining quickly prior to the Governor’s takeover of the parole board, but the bond offering documents included a graph to show that decrease was slowing down dramatically.

That leveling off was important. If you find your dream home when you are 90 years old, you can get a 30 year mortgage from the bank to buy it, because the bank knows that someone will pay off that mortgage just to buy the property after you are dead. Nobody will pay off the mortgage on an empty, purpose-built prison. A prison is useless unless you have prisoners to fill it. The fact that the prison population was leveling off meant that the State would likely need the prisons even years from now, when it’s still paying off the bonds.

From the headlines last week, it appears that the Board of Pardons and Paroles and the Department of Corrections have decided to comply with the amended law requiring people to be paroled shortly before the end of their sentences. About 400 people were released to supervised parole. It’s unclear why they would finally concede this point, although it may have something to do with the new statute expressly stating that it’s effective January 1, 2023, instead of leaving the effective date to common sense. The U.S. Department of Justice very recently accused the State of Louisiana of keeping people locked up past their release dates. Maybe someone in Alabama became concerned about a similar allegation here.

As long as there is even one young man so reckless as to smoke marijuana while on probation or to show up in a parole office with paraphernalia and pot in his pocket, there are people in Alabama who will fight long and hard to keep any prisoners from getting parole. In the next legislative session, they may even try to repeal the mandatory parole law that’s designed to reduce recidivism after sentences end. There’s big money in building prisons, and there’s big money in selling bonds to build them. But there’s no easy money to make in putting people back to work after they have been locked up for 20 years.

What’s the way out?

Even before the Governor’s parole board stopped letting people out in 2019, the number of corrections officers was going down faster than the prison population was declining—and attacks, murders, and other “serious incidents” were skyrocketing during that period.

Last Friday, a federal judge in Montgomery reportedly expressed concern that the State now has 500 fewer security personnel guarding prisons today than it did 18 months ago, despite having been ordered to hire more correctional officers. While the State has hired some basic correctional officers, they have limited authority. An inmate named CJ Wells bled to death weeks before his release. An older, mentally ill inmate cut his throat, and there were no corrections officers in the dorm. The only basic corrections officer in the “cube” would not open the door to the dormitory to let other inmates take CJ to the infirmary. To deal with a real emergency, you need real correctional officers.

The legislature must retake control of the parole board. That would at least signal respect for the rule of law and the plain meaning of the Alabama Constitution. It would mean that, when the legislature passes a law to implement parole (a legislative function) the legislative agency charged with implementing that law would respect the legislative will and really prepare for the releases.

We cannot sit back and assume the federal district courts will solve this problem. The United States Department of Justice sued the State in the federal court in Birmingham, but that case isn’t set for trial until November 2024. By that time, it’s hard to imagine how much worse conditions will be.

Even if there were a federal takeover tomorrow, that hardly means things will get better in prisons soon—if ever. When Jefferson County went into a federal court receivership to make the County stop discriminating against Black people and women, the County wound up using the receivership to say disabled people could not enforce their rights under the Americans with Disabilities Act—federal court receiverships can have very, very unpredictable outcomes, not all of which are positive. Who knows what the unintended consequences might follow a federal court takeover of the prison system.

Perhaps most importantly, Alabama has to get serious about rehabilitation and reentry. A 40-year-old man who has been locked up for two decades does not have the skills to make it in the free world without some help. He has to learn that in the free world he can no longer walk right up to the police with a pipe and dope in his pocket.

A recent column in this outlet called “B.S.” on the Bible Belt. I’m not ready to go that far. But I am mindful the prophets often warned about what would happen to people who oppressed the poor or who were even merely indifferent to that oppression. Over and over again, the Psalms emphasize that God has a special concern for prisoners and people in captivity. Christians believe Jesus did his most important work while in custody. There is a religious, as a well as a legal or social, case to get serious about these issues right now.

But whether you are a believer or nonbeliever, one thing is clear: the time for deliberate indifference is over.

Frank Ozment is a lawyer in Birmingham. He presents Angie Turner in her lawsuit alleging that the Governor’s takeover of the parole board violated the Alabama Constitution.