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The court was in a hurry to resolve Flavius Henderson鈥檚 case.

Henderson had been arrested and charged with cocaine trafficking in Jefferson County, Alabama, in 2000. In May 2001, at the age of 47, he took his attorney鈥檚 advice and waived his right to a jury trial in the case. Things proceeded in a whirlwind. There was a short trial before the judge 鈥� no jury and no witnesses.

Henderson was convicted.

At the sentencing, his attorney objected to the use of Alabama鈥檚 Habitual Felony Offender Act (HFOA) to sentence his client to life without parole. The defense, which didn鈥檛 get into the details of Henderson鈥檚 prior convictions, failed. Henderson went to prison for what was expected to be the rest of his life.

鈥淧erhaps resigned, Henderson made no statement at sentencing,鈥� a court document reads.

But there was a problem big enough to convince a judge years later to rescind the life-without-parole sentence 鈥� freeing him after 20 years in prison. Only two of Henderson鈥檚 three prior felony convictions appeared to qualify for use under the HFOA. His third prior felony conviction 鈥� a grand larceny conviction from 1979 involving the theft of $90 worth of car batteries 鈥� was invalid because of prosecutorial errors at the time.

When Henderson found himself on trial in the early 2000s, his defense attorney didn鈥檛 dispute these three apparent felony convictions. The decision not to challenge prosecutors on their use of these convictions occurred during a routine process known as stipulating facts, where both sides can accept facts outright about prior convictions, according to Alabama lawyers and legal experts. But it also means prosecutors, courts and defense attorneys might miss problems with prior convictions used to name someone a habitual offender and potentially put that person on the path to a life sentence.

High-profile cases like Henderson鈥檚 have in part led to a chorus of opposition to the HFOA. A large coalition of Alabama activists 鈥� including the 人兽性交 Action Fund and Alabamians for Fair Justice 鈥� have urged state lawmakers to approve a repeal currently under consideration.

鈥淎labama鈥檚 Habitual Felony Offender Act is the harshest repeat offender law in the Southeast, with the exception of Mississippi,鈥� reads a signed by 165 Alabama lawyers, law professors and former judges. 鈥淲e strongly urge the Alabama Legislature to pass this important bill during its 2021 session.鈥�

Problems with the act can arise when prior cases are old, from another state or unspecified altogether. In a review of HFOA sentences, the 人兽性交 found some in which prior convictions used were not recent 鈥� as one might expect with a 鈥渉abitual offender鈥� 鈥� but decades old. Sometimes the convictions were missing from online court records. In other cases, the defendant was convicted in another state, which meant the court needed to examine whether and how the other state鈥檚 criminal law corresponded to Alabama鈥檚. And in some cases, the 人兽性交 could find no details about the prior convictions at all.

It all casts doubt over whether required steps are always followed when applying the act. When people have challenged apparent errors, results have been mixed.

Probing the power of a pardon

Alabama legal experts say district attorneys generally follow the rules when they invoke the HFOA. When a defendant in a felony case has older convictions, prosecutors must give notice to the court to invoke the HFOA. The notice should provide case numbers and information about the old offenses to the court. They should provide certified copies of court records for prior convictions both in and out of state.

These steps allow defense attorneys the ability to examine the old cases. If they find a reason the old conviction should not count against the defendant under HFOA, they can challenge it.

鈥淭he best way to challenge HFOA enhancements is to scrutinize the hell out of the priors,鈥� said Jefferson County Chief Public Defender Adam Danneman, who is among the attorneys who signed the letter calling for the act鈥檚 repeal. 鈥淒id [the defendant] have counsel at all critical stages? Did the conviction occur before the new offense date? Can it be argued that the prior conduct would not constitute a felony in Alabama at the time it was committed? If you can make some progress on these issues, you can keep the HFOA from being applied.鈥�

That鈥檚 how the law is supposed to work. But then, there are cases like that of Alonzo Miller III.

In September 2012, Miller pleaded guilty to charges of robbery and assault in Jefferson County, Alabama.聽The judge sentenced him to life in prison because he had half a dozen prior convictions from the 1980s.

Yet, Miller had received a pardon in 2006 for those prior convictions.

And despite prosecutors giving notice of their intent to invoke the HFOA two years before Miller鈥檚 plea, his trial attorney at the time did not challenge the sentencing enhancements. It鈥檚 unclear why; the attorney did not respond to a request for comment.

鈥淚 was granted a right to bear arms and a right to vote,鈥� Miller wrote in a letter to the court in 2013. 鈥淎ccording to the law, [the pardon] made me in the eyes of the law a new and innocent man, as if I had never committed the offense.鈥�

He filed a motion to challenge his sentence a year after his guilty plea. In response, prosecutors stated they had 鈥渘o record of such pardon.鈥� They were open to a hearing on the issue 鈥渋f it exists.鈥�

Ultimately, it turned out that Miller鈥檚 pardon contained a condition from the Board of Pardons and Paroles allowing the act to be invoked. 鈥淭his pardon does not relieve the recipient from the effects of the habitual felony offender act,鈥� it reads, according to court records.

The circuit court sided with the prosecutors and the appeals court upheld the decision, despite the pardon restoring Miller鈥檚 full civil and political rights. 聽The court鈥檚 order kept Miller in prison without a resentencing.

鈥楾he DA鈥檚 version as gospel鈥�

Despite the outcome of Miller鈥檚 case, it highlights how prosecutors may not have all the facts about prior convictions 鈥� underscoring the need for defense attorneys to challenge them.

However, the rules for prosecutors, defense attorneys and courts using the HFOA also allow them to expedite things when it makes sense to do so, such as in plea deals.聽While notice is required every time prosecutors wish to invoke the HFOA, Danneman said defense attorneys sometimes 鈥渕ake it easy on them鈥� by forgoing a challenge of the prior convictions used to apply the act.

This is what happened in Henderson鈥檚 case.聽

鈥淪ometimes it makes sense to do that. Sometimes it doesn鈥檛,鈥� Danneman said.聽鈥淚t鈥檚 usually just a matter of courtesy to stipulate if you know that the certified copies exist. However, that presumes that you actually know that the priors are qualifying priors and that the state could easily access a certified copy.鈥�

But, he added, 鈥渢oo often, defense lawyers just take the DA鈥檚 version as gospel.鈥�

If prosecutors or the court scrutinize the prior convictions before sentencing, in some cases there is little record of them. In a review of 41 HFOA cases, the 人兽性交 could locate either a record of notice or a document identifying prior convictions by case number in 21 cases. The sample size is too small to be representative of all HFOA cases. But certain cases examined by the 人兽性交 bear red flags.

In one such case from Lee County, Lee Henry Allen pleaded guilty to robbery in 2001. Along with his guilty plea paperwork, Allen filled out a form asking about his prior felony convictions.聽

Under the question about prior convictions on the form, he appears to have written the word 鈥減ossession鈥� three times, followed by, 鈥淚 think that is it.鈥� He was then sentenced as a habitual felony offender.

His case file appears to contain no other information about these prior 鈥減ossession鈥� convictions. It is not clear from the court record what the offenses were or where they came from. At least one kind of 鈥減ossession鈥� offense in Alabama 鈥� first-time possession of marijuana for personal use 鈥� was exempted from HFOA. The cases also could have originated in other states. Regardless, Allen served a 20-year sentence as a habitual offender.

In another case from Jefferson County, David Dan Green pleaded guilty to robbery in the third degree in 1999. In court records, his prior convictions are identified by offense and year only. It isn鈥檛 clear whether they are offenses in Alabama; they do not appear in a court records search. One of the three prior convictions appears to be from Georgia.

Danneman reviewed those records at the 人兽性交鈥檚 request. Green鈥檚 overall plea deal seemed reasonable. But, he said, 鈥渢he red flag for me would be the stipulations to the three felonies, especially the out-of-state one.鈥�

Danneman understands the need for scrutinizing prior convictions. Last year, his office filed petitions on behalf of Henderson and another man, Roberto Cruz. The public defender鈥檚 motions came after the 人兽性交 exposed Cruz鈥檚 harsh sentence 鈥� life without parole under the HFOA 鈥� for being a passenger in a car carrying marijuana. The same judge had overseen both men鈥檚 cases.

By the time attention was drawn to his case, Henderson had been in prison for 20 years. Ultimately, he and Cruz were released in 2020 after the 人兽性交鈥檚 reporting and Danneman鈥檚 office pointed out the sentencing errors in court.

Legislature considers HFOA repeal

Opposition to the HFOA continues to grow. Even when the prior convictions used to invoke the act are sound, the law remains problematic. As activists noted in their open letter to the Legislature, the act doesn鈥檛 consider the severity of previous offenses used to invoke it or the time that has elapsed since those convictions. Convictions that stem from actions committed before a person was 18 are permitted, 鈥渁s well as low-level drug and property crimes,鈥� according to the letter.

Though dim, there is hope from the Legislature. A bill in the Alabama House of Representatives, HB 107, passed out of committee on March 31. It would do away with the repeat-offender law and allow for resentencing in HFOA cases. It has not come up for a vote in the full House and would still have to pass the Senate. If HB 107 were to become law, it might offer relief not only for incarcerated people serving wrongful sentences under the HFOA, but also for those serving sentences without errors. 聽

Before Henderson was released, Danneman summed up his sentence in a court filing that echoes concerns being raised about the Habitual Felony Offender Act today.

鈥淢r. Henderson鈥檚 current sentence is cruel and unusual,鈥� he wrote. 鈥淯pon considering that Mr. Henderson has served more than 20 years for this offense, that he has no prior convictions involving violence towards another person and that he is a 66-year-old man incarcerated in an overcrowded prison system amidst the global COVID-19 pandemic, this Court would be more than justified 鈥� in ordering his IMMEDIATE release from the Department of Corrections.鈥�

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