News Post

By Ben M. Baxley

There is a new law that prosecutors and practitioners need to be aware of. On April 6, 2023, Governor Ivey signed into law Act 2023-004 which provides for a minimum mandatory term of imprisonment for those convicted of trafficking in fentanyl. Before delving into the specifics of this new law, some history of mandatory minimums for drug trafficking might be helpful.

For decades, Alabama prosecutors had mandatory minimums as a useful tool under Alabama’s drug trafficking statute. From the view of a prosecutor, mandatory minimums are important when the evidence is compelling, such as when there are videos, confessions, or fingerprints. Weaker evidence, however, can force a case to trial that should otherwise be settled on a term of probation. Short of reducing a charge, a practice disfavored in some circuits, a trial is sometimes the only viable alternative when mandatory minimums are at play.

The drug trafficking statute, Ala. Code §13A-12-231 (1975), establishes the various mandatory minimums for drug trafficking crimes. Section 13A-12-232 (a) makes clear that sentences under the drug trafficking statute are to be served in prison:

Notwithstanding the provisions of Chapter 22, Title 15, or any other provision of law, with respect to any person who is found to have violated Section 13A-12-231, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for any type of parole, probation, work release, supervised intensive restitution program, release because of deduction from sentence for good behavior under corrections incentive time act or any other program, furlough, pass, leave, or any other type of early, conditional, or temporary release program, nor shall such person be permitted to leave the penitentiary for any reason whatsoever except for necessary court appearances and for necessary medical treatment, prior to serving the mandatory minimum term of imprisonment prescribed in this article or 15 years, whichever is less. Nothing contained in this section shall be construed in any way to render any inmate eligible for parole, probation, suspended sentence, furlough, pass, leave, or any type or early, conditional, or temporary release program of any type to which the inmate is not otherwise eligible under other provision of law. Nor shall anything in this section be construed to render any person sentenced to life imprisonment without parole under this or any other act eligible for parole, probation, suspended sentence, furlough, pass, leave, or any type of early, conditional, or temporary release program at any time.

• 13A-12-232 (2018) (emphasis added); see, Ball v. State, 592 So. 2d 1071, 1075 (Ala. Crim. App. 1991) (“The “mandatory minimum sentences” provided in § 13A-12-231 are the sentences that a person convicted of trafficking in a controlled substance must serve in prison.”)

The sentences required to be served under the drug trafficking statute vary depending on the type and the amount of illegal drug possessed. For instance, possessing more than 2.2 pounds of marijuana requires a sentence of three calendar years. § 13A-12-232 (2018). The more drugs possessed, the longer the mandatory sentence, anywhere from three years for more than 28 grams of cocaine, to 10 years for more than 28 grams of morphine, to life without parole for more than 56 grams of LSD. Id. Although the Alabama Court of Criminal Appeals eventually declared life without parole for a trafficking first offender unconstitutional, the remaining mandatory minimums remained in place. Wilson v. State, 830 So. 2d 765, 781 (Ala. Crim. App. 2001). Despite the apparently clear language of the drug trafficking statute, however, a series of events beginning in 2000 effectively eviscerated the drug trafficking statute mandatory minimums.

In the early 1990s, the Drug War was in full swing. Prisons were filling up, drug task forces were fully funded, arrest numbers were booming, and dockets were drowning in drug cases. In addition to enforcement efforts, there were also initiatives to combat the drug epidemic on the demand side by requiring drug treatment as a component of rehabilitation within the criminal justice system. The Mandatory Drug Treatment Act of 1990 was one of the first statutory efforts. §§ 12-23-1, et seq. That act allowed for drug offenders to apply for permission to go to drug treatment “in lieu of undergoing prosecution,” i.e., pretrial diversion. §12-23-5. Those efforts eventually opened the doors for drug courts, community corrections, and alternative sentencing.

Alternative sentencing, however, really came into its own because of provisions of the Alabama Split Sentence Act and its various amendments. By 2000, the act authorized judges to split a sentence of not more than 15 years to serve up to three years in a “prison, jail-type institution, or treatment institution . . ..” §15-18-8(a)(2). Additional provisions of the statute allowed judges to split a sentence of up to 20 years to similar institutions for a period of not more than five years. Id.

Questions arose, however, over the effect of the 2000 amendments to the split sentence act in the context of drug trafficking. Specifically, could the mandatory minimum portion of a sentence imposed on a drug trafficker under section 13A-12-231 of the code be split under the provisions of the Split Sentence Act? In other words, were the mandatories mandatory?

The Alabama Attorney General has a statutory duty to issue written opinions to certain officers and agencies within the state, § 36-15-1((1), and in 2001 the district attorney for Jefferson County asked the question, “[D]oes a court have the authority to ‘split’ those mandatory minimum requirements of what we commonly refer to as our ‘trafficking statute?’” Opinion to Honorable David Barber, District Attorney’s Office, dated Apr. 1, 2002, A.G. No. 2002-196.

Attorney General Bill Pryor responded with an attorney general’s opinion that because of amendments to the Split Sentence Act, a trial judge could probate an entire sentence of less than 20 years even if a portion of the sentence included the mandatory minimum sentences contemplated by the drug trafficking statute. Id. at 6.

The reasoning of the Barber opinion is sound, albeit complicated, and it can be divided into essentially two points.

First, because the Split Sentence Act contains the phrase “notwithstanding any provision of law to the contrary,” it supersedes any previously enacted conflicting law. Id.

Secondly, because the Split Sentence Act was enacted more recently, it is the most recent legislative expression of intent. Id. See, Baldwin County v. Jenkins, 494 So. 2d 584, 588 (Ala. 1986) (In cases of conflicting statutes on the same subject, the latest expression of the legislature is the law.)

In the end, this reasoning was consistent with the rationale and result reached in a then recent opinion of the Alabama Court of Criminal Appeals dealing with other drug sentencing enhancements. See, Soles v. State, 820 So. 2d 163, 165 (Ala. Crim. App. 2001) (enhancements for sale of drugs near schools and public housing projects may be split under the Split Sentence Act.)

Interestingly, neither Soles nor the Barber opinion addressed an equally compelling statutory interpretation argument. “There is a rule of statutory construction that specific provisions relating to specific subjects are understood as exceptions to general provisions relating to general subjects.” Pool v. State, 570 So. 2d 1260, 1262 (Ala. Cr. App.), aff’d, 570 So. 2d 1263 (Ala.1990) (quoting Murphy v. City of Mobile, 504 So. 2d 243, 244 (Ala.1987)). “Special statutory provisions on specific subjects control general provisions on general statutory provisions on specific subjects.” Pool, 570 So. 2d at 1262 (quoting Baldwin County v. Jenkins, 494 So. 2d 584, 588 (Ala.1986)).

Had Soles considered the specific nature of the drug trafficking statute as it related to the general nature of the Split Sentence Act, it may have been decided differently. Because of Soles, however, the attorney general had little choice but to interpret the Split Sentence Act as it did.

Notably, the Alabama Supreme Court has not specifically determined that a sentence imposed pursuant to the drug trafficking statute can be split or probated under the Split Sentence Act. In 2005, however, our supreme court assumed, without deciding, that such a sentence was proper. See Ex parte McCormick, 932 So. 2d 124,140 (Ala. 2005) (amendments to the split sentence act allowed trial court to probate three-year mandatory required by split sentence act.) Instead, McCormick exhaustively analyzed the history and amendments to the Split Sentence Act to determine whether a minimum term of imprisonment required by the Split Sentence Act could be probated, in its entirety. Id. at 132. The McCormick court cited to the Barber opinion of the attorney general as persuasive authority for that proposition. Id. at 133.

Nonetheless, for the same reasons as those espoused in the Barber opinion and Soles, the Alabama Legislature has now opened the door for prosecutors to argue for the imposition of mandatory terms of imprisonment for drug traffickers, thus removing judicial discretion as to the mandatory portion of drug trafficking sentences. Act 2023-004 is now the most recent expression of the intent of the legislature. Moreover, at least with respect to repeat offenders, the mandated sentences are required “[n]otwithstanding any provision of law . . ..” Ala. Act 2023-004, sec. (13)b.1.

In sum, the legislature has equipped prosecutors with a tool to combat the threat of fentanyl trafficking. The historical interpretation of the drug trafficking statute opens the door for compelling arguments that all minimum mandatory sentences contemplated by sections 13A-12-231 and 13A-12-232 are required in all sentencing orders. In any case, Act 2023-004, effective July 1, 2023, should put fentanyl traffickers on notice that they are facing minimum mandatory sentences of hard time.