In the midst of the George Floyd protests for racial and social justice and a call for the end of police summary executions and murders of innocence, unarmed Black men and women with impunity, many people around the world were shocked when a Democratic prosecutor in Utah charged Black Lives Matter protestors under gang enhancement charges that carried a possible life sentence in prison for merely splashing paint across the steps and part of the street in front of the DA’s with red paint.
“George Floyd: US protesters charged as ‘gang’ face life sentence – BBC News” https://www.bbc.com/news/amp/world-us-canada-53698048
While these excessive ‘gang’ charges drew condemnation far and wide, this incident exposed a practice that many Black men know all too well, especially here in Alabama. But, unlike the prosecutor in Utah, who acknowledged that he doubts that anyone will spend even a day in jail for these charges that carry a life sentence, Black men in Alabama have not been so lucky.
In fact, hundreds of Black men in Alabama have been charged with gang-related capital murder offenses that carry the death penalty or life without parole. Although no one has ever received the death penalty under these statutes, hundreds are çurrently serving life without parole sentences after being prosecuted under these gang laws even though none of them were ever charged with actually being in any gang. Many others were originally overcharged with capital offense but ultimately had their charges reduced in plea deals.
HISTORY OF ALABAMA’S GANG LAWS
In 1992, the Alabama Legislature convened to address what was the considered to be a public outcry against gang violence. Among the issues of concern were “drive-by” shooting, where vehicles were being weaponized to carry out gang murders. These gang killings were also taking the lives of innocent children who were outside playing in their yards, or sitting inside their homes when these drive-by shootings were being carried out. In response, the Alabama Legislature added four new capital murder crimes to the Alabama criminal code that were now punishable by death or LWOP:
Over time and after years of these laws being on the books, we have learned that these laws have not been applied as intended. We’ve also learned that the uneven and disparate application of these laws have been applied almost exclusively to young Black men. The facts are undeniable. Alabama prosecutors are intentionally and systematically using gang laws to overcharge, wrongfully convict, and over sentence young Black men for capital murder where the only aggravating factor used to enhance their charges is the fact that they are Black. Excepting a few isolated instances, white people who commit the exact same crimes are not charges with capital murder.
SHIRLEY HENSON: Road Rage and Black Rage
Every fire has a spark.
The case that sparked the fire leading to the discovery of the racial discrimination in how these laws were being used was the road rage case involving a middle-class white woman named Shirley Henson. Ms. Henson was driving down an Alabama interstate when she got into an altercation with another driver over tailgating. When the driver of the other vehicle got out of her car to confront Ms. Henson, Ms. Henson retrieved her gun and shot through her window striking the woman in the face, killing her.
As shown above, under Alabama law, when a person inside a vehicle fires a weapon outside that vehicle and kills someone this is capital murder:
(18) Murder committed by or through the use of a deadly weapon fired or otherwise used within or from a vehicle.
Indeed, firing a weapon from inside a vehicle and killing someone outside that vehicle is exactly how a drive-by shooting is committed. But, Ms. Henson was not charged with a capital offense. Instead, she was charged with reckless murder.
This lesser charge was a revelation to Black men in Alabama because they, unlike Ms. Henson, were told that there crimes were capital based on the factual predicate that a weapon was fired from inside a vehicle that killed someone outside the vehicle or vice versa. This was a fact that, according to their prosecutors and defense attorneys, automatically rendered their cases capital.
Yet, here it was playing out on news stations all around the State that when a white women committed the exact same crime, with the exact same facts, she was not charged with a capital offense. Ultimately, Ms. Henson was famously convicted of road rage and spent appx. 10 years in prison before being released.
Young Black men, however, were receiving life without parole sentences, left to die in the Alabama prison system for the exact same offense.
HOUSE JOINT RESOLUTION 575
While Shirley Henson, a middle classes white woman received the benefit of white privilege in the Alabama judicial system, Phillip Fondren, a young white male did not. Phillip Fondren was charged with capital murder after killing a man (Fondren claimed self-defense) in a domestic situation after an argument with his wife’s ex-boyfriend. A single gunshot was fired from Fondren’s vehicle:
After his conviction, Phillip’s mother, understanding the injustice done to her son, became a vocal activist, refusing to accept as fact that her son would spend the rest of his life in prison simply because he was charged under a statute that defined the crime and length of punishment based solely on the location of the parties when the crime occured. In order words, if Phillip had stepped outside of his truck and he and the victim were both standing in the driveway when the same fatal shot was fired, he would not have been subject to a capital offense or life without parole.
Phillip’s case and many others highlight the fact that gang affiliation and using the vehicle as an instrument of the crime (drive-by) are the elements that the Alabama Legislature intended to punish. These were the aggravating factors that enhanced the punishment. When those aggravating elements are absent, then what prosecutors are supposed to be punishing is a murder case.
Avoiding absurd results like this is the very reason why gang relation was a critical aspect of the original legislation. If there was no gang involvement or the vehicle was not being used to carry out the crime then there was no aggravating facts that would justify enhancing the charge to capital murder instead of regular murder.
This injustice compelled Ms. Fondren to start writing articles, reaching out to legislatures and taking other proactive actions, all of which ultimately lead to her understanding that her son had been charged under a gang-related statute even though his crime was not gang-related and he was not in a gang.
Her efforts lead the Alabama Legislature to passed a House Joint Resolution 575, which was signed by the Governor, all stating that the gang statute was being misapplied in Alabama inconsistent with their intent in passing the law in the first place.
“Legislative Acts | Alabama Secretary of State” http://arc-sos.state.al.us/cgi/actdetail.mbr/detail?page=act&year=2006&act=642
PHYRRIC VICTORY AFTER THE JUDICIAL BRANCH GETS INVOLVED
The success of Ms. Fondren’s campaign was short-lived. After receiving the Resolution, the next step was to file a writ bringing Phillip’s case back to his court of conviction for sentencing relief. The court, however, refused to grant relief, contending that the Resolution did not have the effect of law. As such, all relief was denied.
Challenges to the Resolution went all the way to the United States Court of Appeals for the 11th Judicial Circuit, all to no avail. The United States Supreme Court denied certiorari review and any hope for obtaining relief based on the House Joint Resolution were dashed.
According to the judiciary the problem resided in the fact that the Alabama Legislature omitted certain language from the Bill that was voted on after it was enacted into Law, and the House Joint Resolution cannot be used as an amendment to supply that language.
See, the original Bill submitted to committee and voted on by both houses states specifically that the Bill was intended to punish gang-related drive-by activity. This language is also in the minutes of the debates and conversation about the Bill. But once the Bill was enacted into law, the “gang-related” language, somehow and for whatever reason was excluded. As a result of this snafu, hundreds of people have been wrongfully convicted and no one has been able to obtain relief. This is a travesty of justice.
OTHER CASES INVOLVING WHITE DEFENDANTS TREATED DIFFERENTLY AND MORE FAVORABLE THAN THOSE INVOLVING YOUNG BLACK MEN
Over the years, countless other instances of cases have surfaced involving facts where the defendants were treated differently based on the color of skin. In one the more egregious instances of white privilege, a white man named Steven Bedgood in Georgetown, Alabama, arrived home and noticed a truck leaving the direction of his residence. Upon realization that the truck was being driven by a burglar leaving his home, Mr. Bedgood retrieved a high-powered rifle and shot over 1/8 a mile down the road, striking the assumed burglar in the head, killing him instantly.
Under Alabama’s gang statute, this killing of another person inside a vehicle by shots fired from outside the vehicle is capital murder :
(17) Murder committed by or through the use of a deadly weapon while the victim is in a vehicle.
Unlike hundreds of young Black men before him, however, Mr. Bedgood was charged with manslaughter, a class C felony. Ultimately, Mr. Bedgood was convicted of the lesser included offense of criminally negligent homicide, a misdemeanor, and received 6 months suspended sentence, while each of the Black men mentioned above received life or life without parole. Absent intervention or change in the law, each of them will die in prison, while Mr. Bedgood never served a day in prison.
Oeatha Archie III, Brandon Johnson, Antwaun Phillips, and Jeremy Cattage are just a few of the young Black men who were charged with capital murder pursuant subsection (17), a circumstance where the victim was killed inside a vehicle by a gushot fired from outside that vehicle. Well-known activist and civil rights leader Pastor Kenneth Sharpron Glasgow and his codefendant are two Black men who are currently facing capital murder charges under this racially discriminatory law for a non-gang related offense where the vehicle was not used as a weapon to carry out the crime.
These Black men were all charged with capital murder and sentenced to Life or Life Without Parole even though they were not accused of being gang members or of committing a gang-related killing. The enhancement element in each of their cases was the the fact that they are Black.
Systemic racism and abuse at the hands of law enforcement takes on many forms, resulting in death by different means. While George Floyd met his death in the street, those who protested his death were charged under gang statutes that carry death-inducing life sentences. Prosecutors who routinely overcharge Black defendants are no less guilty that the officers who murdered George Floyd. The manner of death does not remove the certainty of it.
In Alabama, Black men are sentenced to death by incarceration for committing acts that when committed by white people sometimes doesn’t even result in a single day spent in jail. This need to change. The House Joint Resolution makes clear that their intent was to punish ONLY gang-related drive-by killings and/or those killings that uses a vehicle as an instrument of the crime, as a capital offense. Being Black is not a symbol for gang involvement, and being Black should no longer be countenanced as being an element of a crime. Prosecutors should not be allowed to punish Blackness; those who are currently charged or have already been wrongfully convicted as such deserve justice now.
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