Alabama’s ‘Vending Machine Justice’ Victims Are Living ‘Like Livestock’
COVID-19 has led many Americans to rethink prison. But a habitual offender law has condemned hundreds of people who never physically hurt anyone to grow old and die behind bars.
Ronald McKeithen was trying to beat a clock he could not see.
He’d gathered close to 100 certificates from programs completed during his three decades in prison: meditation, anger management, visual arts. He wrote a court petition by hand, then asked a friend to type it. He needed three copies, but the prison administration charged $1 a page, money Ron didn’t have. So, he bartered with a fellow prisoner who had access to a copy machine inside the prison, paying him with a pouch of tobacco.
This petition was Ron’s one remaining avenue to freedom, and he’d heard a rumor that lawmakers might take it away. The year was 2014. Ron had been locked up for 30 years and had come to expect that the system would let him down. Every appeal he’d filed over the years had been summarily denied. “These prisons are like modern day plantations, and Alabama don’t want to let their slaves go,” Ron wrote to me in 2020, about how the system had indeed let him down. “This is how many of us feel. Guys have killed themselves and others are committing slow suicide with the things they do in here.”
(A self-portrait of Ron McKeithen in prison.)
By “us,” Ron was referring to the more than 500 people in Alabama now serving life without parole—the harshest possible punishment next to death—under the state’s draconian “habitual felony offender” law aimed at repeat offenders. For decades, the law mandated this sentence for anyone convicted of a Class A felony, like robbery or burglary, who had any three prior felonies on their record. Many in this population, including Ron, never physically injured anyone in their crimes.
Over 70 percent of this population is over 50 years old, at a much higher risk of dying from coronavirus if they catch it. Over the last 40 years, the number of incarcerated people over the age of 50 in Alabama has increased by 3,000 percent.
“O.G. used to mean ‘original gangster,’ Ron explained, “but now it simply means ‘old guy.’” In February he turned 58, marking the 36th birthday he’s spent in prison.
Ron scoffs at the prison’s paltry COVID protocols—a single squirt of hand sanitizer before meals and mask rules for prison workers and prisoners that are at best loosely enforced. So far the only positive cases at Ron’s prison include one incarcerated man and six employees, but other prisons across the state aren’t as lucky. As of Sept. 4, the Alabama Department of Corrections reports a total of 726 positive cases among prisoners and staff. Twenty prisoners and two prison workers have died.
Ron is left to hope and pray that he and other prison elders don’t get sick as Alabama leaders have done little to release people from prison during the pandemic and placed the men most in need of release at the back of the line, even as state leaders have been forced to re-examine sentencing laws after the United States Department of Justice concluded in April of 2019 that the cruel and usual punishments meted out by the Alabama Department of Corrections (ADOC) likely violate the United States Constitution.
The prisons are horrifically overcrowded and monstrously violent, the result of “tough-on-crime” sentences and a prison staffing crisis that has some institutions operating with only 25 percent of the needed officers. Federal investigators issued another damning report in July of 2020 that found officers frequently use excessive force on people incarcerated throughout ADOC prisons.
I didn’t realize that a person could be sentenced to die in prison for crimes outside of murder until I met Ron in 2014 while I was producing a documentary about an educational program at the William E. Donaldson Correctional Facility, a maximum-security prison surrounded by thick, piney woods about 30 miles west of Birmingham.
Ron is a trim, light-skinned Black man, and the first time we talked he wore an apprehensive expression behind reading glasses perched on the tip of his nose. The prison warden allowed me to interview Ron about the importance of education in prison, which Ron described as necessary for survival.
“Depression and loneliness in here, it’ll eat you up,” he told me. “But classes like this keep you alive.”
Ron later wrote me a thank-you note, and confessed that he was nervous during our interview and hoped the TV lights didn’t have his “bald head glowing like a light bulb.”
“My story isn’t one of heinous deeds, only foolish decisions,” Ron wrote in a distinctly graceful penmanship, and I wanted to know more. We began writing regularly, and later speaking on the phone. I learned Ron lives in the faith-based honor dorm, a special housing unit with strict rules but extra privileges. Participants must apply to get in, but lose their spot and are sent back into general population if they commit a violation.
Ron rises every morning before sunrise to meditate before the noise and heat begin. He works as a barber, tutor, and clerk in the prison library, but his favorite pastimes are drawing and painting. He’s learned art paper keeps better under his mattress, away from the humidity. His colored pencils and paints stay in a paper sack under his bunk, which could probably be taken away if the wrong officer shook him down, but most of the staff knows Ron by now.
He gives most of his drawings and paintings to friends and family. He likes to think about his artwork out in the free world, a remaining tether to the places he used to know before incarceration swallowed up his entire adult life.
(Ron McKeithen in a prison drawing class, courtesy of Auburn Prison Arts + Education Project)
Many Alabamians have come to believe that the habitual offender law, passed at the dawn of the tough-on-crime era, is unreasonably harsh. Ron’s so-called “third strike”—his fourth felony conviction—was the robbery of a convenience store in 1983, when he was 22. Legislators changed the law in 2000, ostensibly to make it less severe. But the damage was never undone, and the law serves as a case study in the difficulty of overhauling a criminal justice system, no matter how broken.
The United States incarcerates more people than any other country, with much longer sentences than other democracies. So-called three-strikes or habitual-offender laws are one of the biggest contributors to mass incarceration, crafted in an era when fear and anger dominated rhetoric surrounding criminal justice policy and lock-‘em-up-and-throw-away-the-key became the norm. But even as that norm shifted, the laws endured.
“Both Reagan Republicans and Clinton Democrats were guilty of using that narrative to maintain political power,” said Bryan Stevenson, civil rights attorney and founder of the Equal Justice Initiative in Montgomery, Alabama. “No one was prepared to say this is too harsh, too extreme. Everyone wanted to be seen as tough on crime.”
In Alabama, the heart of the nation’s Bible belt, Old Testament beliefs combined with the legacy of slavery, Apartheid and folk culture create a climate where severe punishment, from whipping a misbehaving child to executing a killer, is seen as morally righteous among many people of all races.
“The idea of punitive, exact, immediate justice, oftentimes violent justice, was written into the DNA on the Alabama frontier,” Wayne Flynt, the editor-in-chief of the Encyclopedia of Alabama and a university professor emeritus in the department of history at Auburn, told me.
“I think the confidence of most Alabamians is not in moral suasion, it’s in harsh justice,” said Flynt. “They believe the best way to straighten somebody out is to put them in jail.”
The result of that belief has been that measures to reduce the population in overcrowded, understaffed and deadly prions have been continuously rejected or watered down to the point of failure.
The law that gave Ron McKeithen life without parole is one piece of a larger puzzle. But its story—and his story—shows how change can be foiled by fear, obstruction and simple apathy, even in a prolonged crisis.
In 1977, when Ron was 15 years old, lawmakers passed Alabama’s Habitual Felony Offender Act, which imposed longer penalties each time someone committed a felony. Modeled on so-called “loser laws” in Tennessee and Texas, Alabama’s law became the harshest in the nation, mandating a sentence of life without the possibility of parole for anyone with three prior felonies on their record convicted of a Class A felony.
In Alabama, Class A felonies include the most serious crimes, like rape and murder, but also robbery, burglary and manufacturing of a controlled substance. The new law meant a person could commit a single robbery and be sentenced to die in prison if he (and, in practice, the person was almost inevitably “he”) had three prior forgery or drug convictions. It didn’t matter if a decade or more had passed between the crimes or if all the charges resulted from the same incident. Judges had zero discretion.
The law was backed by Democratic Governor George C. Wallace, who famously vowed when he’d first been elected 14 years earlier to protect “segregation now, segregation tomorrow, and segregation forever.”
It had been written by the newly elected Attorney General “Lock-em-up-Charlie” Graddick, whose campaign slogan was “a man of conviction.” Graddick once reportedly boasted of his zeal for executions, promising he’d “fry ‘em ‘til their eyeballs pop out and smoke pours out of their ears.” He believed the habitual offender law would serve as a deterrent.
“Most career criminals have committed a lot more crimes than we know about,” Graddick said at the time. “I have no sympathy for them.”
But even back then, Alabama prisons could not handle the politically popular, throw-away-the-key policies. A federal judge had ruled in 1976 that the prisons were overcrowded, violent and “wholly unfit for human habitation.”
At the time, Ron McKeithen had just been expelled from Birmingham’s Parker High School for too many absences. He started selling marijuana to help make ends meet at home, a three-room shotgun house in the historically African-American neighborhood of Titusville, where he lived with his single mother and three siblings.
Their house was on the poor side of Titusville, but walking distance from Memorial Park, where Ron swam with his siblings and played basketball with friends. The park served as a grassy oasis away from Ron’s cramped home life, but was also right across the street from the Birmingham City Jail, which loomed like a nasty promise, the jail’s busy sallyport always visible in the distance.
(An undated school photo of young Ron McKeithen, courtesy of Delsi McKeithen)
Ron was raised mostly by his grandmother, a woman who went to church every Sunday, but also sometimes shoplifted in front of Ron. Once, she was arrested at a department store and Ron watched her driven away in a police wagon. He told me they never spoke about the incident, but his takeaway lesson was to not get caught.
As a child, he once saw his mother having sex with a man, her back against the side of a house in their neighborhood. He recalled strange men knocking on their door looking for his mother, one handing Ron a bag that contained his mother’s underwear.
Ron’s mother also drank, sometimes to the point of passing out in the street. He didn’t hate her for this, instead he hated the “shot houses” that illegally sold alcohol and the corner liquor store that she frequented at the end of their street. On two occasions, when Ron tried to stop her from leaving the house, she stabbed him.
“She was the most loving and caring woman when sober, but she just couldn’t handle her drinking,” Ron wrote in a letter. “Because of my love for her, I’m seeing it in a way that doesn’t make her appear evil, but in reality, I know the law would’ve and should’ve taken me or all of us away from her.”
Around the time that Ron was kicked out of school, he developed a crush on a female neighbor, a drug dealer named Norvee who was nine years older than him. He and his friends began smoking weed with Norvee and hanging out at her house. Ron thought Norvee looked like the character Thelma from Good Times.
“She had the figure of a ghetto goddess with a pretty face to match,” he recalled. “I was captivated, in awe, crush overload.”
During one night of partying, Norvee surprised Ron by kissing him, and he spent the night with her.
The two coupled up, and graduated from smoking weed to using an intravenous street drug known as “T’s and Blues,” made by crushing up a narcotic sold under the brand name “Talwin” and mixing it with an over-the-counter antihistamine.
Norvee and Ron got an apartment together, which became a “dope shooting gallery,” where drug users and dealers gathered to party and hustle. T’s and Blues was the hottest street drug at the time in Birmingham, cheaper and more readily available than heroin, and Ron was right in the middle of it. His life became a cycle of getting high and stealing to support his drug use. His grandmother, with whom he was very close, tried to talk some sense into him, but it was no use.
“It was like I was running with a pack of wild dogs, sniffing garbage cans, trying to find whatever scrap we could, not caring about the consequences or our future,” Ron said.
At 18, Ron got his first felony conviction for third-degree burglary. He racked up a record for illegal possession of a credit card, fraudulent use of a credit card, and first-degree robbery.
Ron was exactly the type of repeat offender that lawmakers wanted to keep locked up. But prison administrators warned the habitual offender law was sending too many people to prison for far too long.
Wardens were overwhelmed with the crush of new life sentences, and unprepared to manage a population of mostly young men who had no hope of release.
“This poses an expensive and dangerous situation for the people who run the prison system,” an ADOC spokesperson told a reporter in 1983.
But prosecutors and the police praised the law, crediting it for driving down crime and slowing the revolving door. They insisted that the rapid infusion of new prisoners would level off and gave little regard to the human cost or the ability of people to grow and change.
Beginning at age 18, Ron did two short stints in prison, and returned after each one to using drugs with Norvee. She introduced him to her nephew, who they called Smokey. Ron had never been into guns. He’d only fired his grandmother’s .22-caliber rifle into the air a few times on New Year’s Eve and the fourth of July. But Smokey was doing regular armed robberies, and Ron soon joined him.
On a warm April night in 1983, Ron and Smokey went to a small grocery store in Titusville, right down the street from the shotgun house where Ron’s mother still lived. Each armed with a handgun, they went to collect money Ron says the store owner owed them. Ron and Smokey stole $300 out of the cash register and Ron took a .25-caliber pistol and wallet out of the store owner's pocket.
The total value of the robbery was $450. No one was injured, but robbing a store at gunpoint was considered then, as it still is today, a violent, Class A offense.
Against the advice of his court-appointed attorney, Ron turned down a plea deal for 15 years, and a second offer for 25 years, thinking he could beat the charges. During his trial, which lasted one day, one of the victims identified him in court. The following day, the jury found him guilty. When the judge sentenced him to mandatory life without parole, he apologized to Ron, telling him he had no choice, Ron recalls.
Ron’s grandmother, who’d advised him to take the plea deal, was so ashamed of his life sentence that she made up a story, telling church friends that he’d moved to Ohio to become a foreman in a manufacturing plant. Her embarrassment about his fate wounded him the most.
“I was mad, scared, hurt and unable to face my grandmother, because she told me to take that time,” Ron wrote. “But even after all these years, I know that all the blame falls on me. Every single wrong deed I committed, I knew it was wrong before I made the decision to do it.”
By then, the habitual offender law was resulting in uneven outcomes across the state. Some prosecutors invoked it aggressively while a few started reducing charges to avoid the mandatory penalties. Ron had no such luck. He had known he faced a possible life sentence if he was convicted of another felony, but that wasn’t enough for him to straighten up and stop committing crimes. Ron’s criminal career lasted less than four years, but he would spend the rest of his life behind bars.
“I still took my dumb crazy ass out in those streets doing things that I knew would place me here forever,” he said. “Even to this day, I just can’t wrap my head around it.”
Ron was among the first wave of Alabamians sentenced to life under the new law. Dozens of drug users, petty thieves and burglars were getting longer sentences than some people convicted of rape and murder, and over time, many Alabamians, including lawmakers, began to view the law as unnecessarily harsh. Dick Brewbaker, a retired Republican lawmaker, told me the mandatory sentences removed the human elements that judges needed to consider.
“It just turned into vending machine justice,” Brewbaker said.
A man named Johnny Holly was sentenced to life without parole in 1980 for stealing a toolbox from a pickup truck. His prior convictions were all for shoplifting items including a pork chop, a record, a space heater. In 1993, a man named Rex Norris was sent away for life on a drug trafficking conviction after he tried to buy 19 pounds of marijuana. His three prior convictions, all drug cases, were from the 1970s and early 1980s. Another man, Jerald Sanders, got a life sentence for stealing a $16 bicycle off a porch in 1996. He had a 5-year record of burglaries, none of them involving violence.
“People who had one bad season were being permanently thrown away,” said Bryan Stevenson. “And not just poor and Black people, but people from middle class families and suburban communities were getting swept up, which changed the politics.”
Additionally, the cost to incarcerate Alabama’s increasingly permanent prison population skyrocketed, while the prisons continued to grapple with severe overcrowding.
In 1983, Alabama housed 4,000 prisoners. By 2000, the prisons were bursting with 25,000 people—including 1,700 men and women serving life sentences under the habitual offender act—in a system designed to hold 13,000.
Yet over a dozen attempts to repeal or soften the habitual offender law have fizzled over the years.
Five years after the law was passed, defense attorneys suggested a simple, one-word change, replacing “shall” with “may” to give judges a choice before recommending the most severe sentences, but the legislature said no.
In 1989, a measure was introduced that would give habitual offenders a chance at parole in cases of robbery or burglary in which the victims were not physically harmed.
The bill was named for a man named Terry McLester, who at age 22, broke into seven stores inside a Dothan mall one night in 1979 and was convicted of seven separate crimes. Two years later, he pulled a knife on a convenience store clerk, but left the store without harming the clerk or stealing anything. He was convicted of armed robbery and sentenced to life without parole.
“You’ve sentenced that young man to die in prison,” the bill’s sponsor, state Rep. Nathan Mathis told lawmakers during debate.
The police and prosecutors fought against the reform. They were joined by a powerful victim’s advocacy organization called VOCAL, which stands for “Victims of Crime and Leniency.”
“I have not seen any instance, even in the McLester case, that would indicate they would deserve another chance, but I like to think I have an open mind,” said VOCAL’s founder, Miriam Shehane, whose daughter was murdered in 1976.
Lawmakers ultimately followed Shehane’s lead and the bill was defeated.
Twice the legislature passed revisions to the law with support from prison officials, but governors at the time refused to sign the changes into law.
“These are criminals who, if ever released, will harm someone again,” Attorney General William Pryor Jr. warned Governor Fob James in 1997, even though the change would have only applied to people convicted of nonviolent crimes. Gov. James vetoed the bill.
In 1999, a 50-year-old white woman named Diana Summerford founded the Alabama chapter of the national advocacy group CURE, a grassroots organization dedicated to reforming prisons and jails. CURE, the clunky acronym for “Citizens United for Rehabilitation of Errants,” was founded in Texas in 1972, and consists mainly of family members of incarcerated people.
Until Diana’s son Jimmy Childers faced a life sentence for a series of thefts and burglaries, she thought three strikes was just a rule in baseball. Jimmy struggled with cocaine addiction and had been in and out of jail and prison since he was a teenager. Some of his prior cases involved stealing from Diana, first a camcorder and later her checkbook. Diana saw her son destroying his life, and reported the thefts to police. At the time, she had no idea her actions could lead to such a devastating punishment.
In 1995, a decade after his first arrest, Jimmy was caught stealing guns out of a house when no one was home.
“He deserved to get some time, but not for the rest of his life,” Diana said.
(Diana Summerford and Jimmy Childers, courtesy of Diana Summerford)
Jimmy’s case went before Jefferson County Circuit Judge James Hard, who expressed frustration over the mandatory sentence required by the habitual offender law. Instead of imposing it, Judge Hard ordered that Jimmy be held for 11 months in the Jefferson County jail, hoping lawmakers would give him another sentencing option. Support had been growing in the legislature to change the law, and Judge Hard wanted to wait out the legislative session.
As Jimmy sat in jail, the legislature passed a reform bill that allowed lesser penalties for some repeat offenders, like Jimmy, but Governor Fob James once again vetoed the measure, leaving Judge Hard with no other choice but to sentence Jimmy to life without parole.
“I would have appreciated having some options for Childers,” Hard told The Birmingham News at the time. “I don’t know what I would have done, but at least the sentence would be the result of some cognitive ability that I would bring to the decision.”
I talked to Judge Hard, now retired, some 20 years after he had to send Jimmy Childers away for the rest of his natural life. He remembered “the whole madness” of the habitual offender law and his dislike of the mandatory punishments that tied judges’ hands.
“It was retaliatory, but it sells back home to their constituents,” he surmised about the politicians that supported it. “The same old horse they came in on, tough on crime.”
During his 25 years as a circuit judge, Hard tried to treat criminal defendants fairly, but also wasn’t afraid to impose harsh sentences. Some lawbreakers, in his eyes, were unforgivable: serial rapists, killers who tortured their victims, abusers who inflicted pain on children. Hard thought people who committed those kinds of atrocities deserved to spend the rest of their lives in prison, and he even sent a few to the electric chair. But sentencing people who hadn’t injured anyone to life in prison made him uncomfortable, like he was acting in concert with a rigged system.
“I wish there was unfettered discretion in the judicial business, because I trust myself more than I trust these legislators,” he said. “Very few have troubled lives. They are passing laws that are impacting so many people that are marginalized.”
(A Black Lives Matter greeting card created by Ron McKeithen)
People of color have long been underrepresented in Alabama power structures, nowhere more dramatically than the courts and prosecutors offices. As of 2020, all 19 appellate court judges in Alabama are white, and only three of the state’s 42 district attorneys are Black.
With her son serving a life sentence in Holman Prison—“the pits of hell,” as Diana called it—she decided to take action. She networked with other families impacted by the habitual offender law and coordinated the first Alabama CURE meeting in a suburban church north of Birmingham, starting a campaign to reform Alabama’s sentencing law.
“I sent emails, phone calls and letters to anybody that would listen,” Diana told me. “I really surprised myself, at times, with my outspokenness.”
They got organized and began a campaign of relentless lobbying, traveling to Montgomery every chance they got to speak to lawmakers about the extreme sentences. Finally, in the year 2000, lawmakers agreed to a few adjustments to the law that gave judges more discretion. Among the changes, judges would now be allowed to choose between life or life without parole if a person had no prior violent offenses.
The following year lawmakers made the change retroactive, giving judges the ability to revise prior life sentences, as long as the prisoner had been nonviolent. Governor Don Siegelman asked the Department of Corrections to develop a process to determine which prisoners qualified as nonviolent.
But even after this was done, Attorney General Pryor opposed the change to the law. In 2002, he wrote a letter to the corrections commissioner concluding that it was unconstitutional to delegate that power to corrections officials and the law should not be enforced. This set the stage for prisoners to fight the state’s inaction in court.
State leaders had estimated up to 1,400 men and women serving life and life without parole could receive a sentence reduction if changes to the law were implemented, and a barrel-chested white man named Junior Mack Kirby emerged as the frontrunner.
Kirby had been sentenced to life without parole in 1990 after being found guilty of marijuana trafficking. According to court records, the state originally offered him a plea deal of 15 years, but for reasons unclear in the documents, prosecutors later invoked the habitual offender statute in order to seek the harshest punishment possible. Kirby was from rural Jackson County on the Alabama-Tennessee state line, and his prior offenses included marijuana possession and possession of an illegal whiskey still.
While state bureaucrats were busy fussing about the law, Bryan Stevenson at the Equal Justice Initiative began representing Kirby in his appeals. In 2004, more than three years after the legislature changed the law, Kirby became the first lifer released from prison after winning a sentence reduction in court.
The heart of the Kirby litigation, Stevenson said, was to get the courts to recognize the importance of applying revisions to the habitual offender law to people who were already incarcerated. In Kirby v. Alabama, the Alabama Supreme Court ended the AG’s fight against reforms by unanimously ruling that judges could reduce the sentences of nonviolent habitual offenders serving mandatory life or life without parole, as long as they had no prior Class A felonies on their record.
The Kirby decision also concluded that judges should determine whether a prisoner was nonviolent based on the nature of the underlying conviction, other factors in the record and the prisoner’s behavior while incarcerated. After 20 years, Ron McKeithen finally had a chance to get out.
Ron recalled that he had entered prison as a self-described “young thug,” angry and full of swagger. He got in trouble for fighting, smoking weed, and once spent six months in solitary confinement.
He began his sentence at St. Clair Correctional Facility, an infamously violent prison, but over the years the prison system would transfer him back and forth between St. Clair and Donaldson prisons. The moves reminded Ron of his powerlessness, officers shuttling him and other men “like livestock being moved from one pen to another.” The last transfer came in 2002 after the only prison fight that sent Ron to the infirmary. It started on a basketball court and ended with the other man nearly biting Ron’s bottom lip off.
Just four months into his sentence, Ron learned that his mother had died. He was in solitary when he found out, brought to the officer’s cubicle to take a phone call while he was still handcuffed. He remembers his knees buckling when he heard the news.
His grandmother died in 1999 and by then, Ron’s siblings had stopped visiting him in prison. His connections to the outside world eroded.
Still, he managed to earn his GED and graduated twice from trade school in barbering and food services. Even though he knew he had no end to his sentence, he signed up for classes where he learned to meditate and developed a previously hidden talent for drawing and painting.
(Untitled watercolor by Ron McKeithen)
Ron filed his first “Kirby motion” for a sentence reduction in 2006. By then, he was 45 and had served 22 years. The judge deemed him ineligible because of his disciplinary record in prison.
Ron’s first 20 years in prison were fraught with self-described “I don’t give a fuck phases,” bouts of misbehavior and questionable decisions that left his prison record peppered with citations. He told me these periods came in waves, along with intense anger at himself, the prison and courts, and the swarming men all around him, “probably because I saw myself in each of them.”
Sometimes he would isolate for weeks, smoking weed, skipping work, simmering with rage alone in a cell. At one point he chose a spot in the prison gym where he planned to hang himself. Ron credits the peace he found through learning to meditate in 2013 as the biggest breakthrough in shedding his cycles of shame.
In 2009, he filed a second Kirby motion, and the judge again rejected it, this time giving no explicit reason, even though Ron argued in his motion that he’d completed many rehabilitative programs and tried to better himself.
“Having to ponder all the idiotic decisions and mistakes makes me feel like an imbecile, a brainless loser,” Ron wrote to me about the court denials. “Regardless of how much I’ve changed or the accomplishments I’ve made, it’s as if I was destined to end up here, that it was preordained.”
Ron watched other prisoners, most who had lawyers, and some whose crimes were arguably worse than his own, get out after Kirby. Even though changes to the law were only intended to benefit non-violent offenders, a handful of men with murder, rape or assault convictions were released.
Many petitioners filed Kirby motions again and again, because they never knew whether time or a new judge would result in release. Those repeat petitioners, though sometimes successful, led to the next twist in the history of the habitual offender law.
Nearly a decade after the Kirby decision, a request came from Alabama’s Court of Criminal Appeals to the legislature. It landed with Republican Senator Cam Ward, considered the state’s top criminal justice reformer. The court complained that the “Kirby rule” was being used by “prolific pro se litigants to file frivolous petitions.” The court wanted them stopped, so it could devote “limited resources to more weighty matters.”
That request came in 2014, the same year I first met Ron. I had been writing about the prison overcrowding and violence, but was just beginning to understand how Alabama’s extreme sentencing practices fed into the crisis. I did not know at the time that the appeals court was asking lawmakers to slam the door on people like Ron, but I know now that no one at the court spoke to anyone in prison or their families before pushing for this change. They didn’t know about Ron, or anyone like him, and they didn’t think it was important to ask.
Even Senator Ward admitted that he didn’t write the bill, but simply sponsored and passed what the appeals court sent to him.
(Self portrait of Ron McKeithen meditating in prison)
Almost a decade had passed since Kirby and court officials believed people like Ron had been given ample opportunity to seek relief, even though the state never provided legal resources for this population, and most had to navigate the procedural hurdles of filing motions in court without a lawyer. Last year, I asked Scott Mitchell, Clerk of the Court of Criminal Appeals, how they reached the conclusion that the Kirby rule was no longer needed.
“We were just seeing the same appellants over and over seeking relief,” he said. “It appeared that everybody had the opportunity to receive the benefit of this law. It had outlived its usefulness.”
When the Court of Criminal Appeals asked lawmakers to repeal the law that led to Kirby, there was no public hearing, no debate, and little discussion before the bill passed unanimously.
“I can tell you, there was no effort to identify the population that was being impacted by it,” Rep. Chris England told me, the only member of the legislature to abstain from voting on the measure.
Stevenson and other advocates were blindsided by the move, although he said it was just another example in a long-running pattern of lawmakers not seeking input from policy experts or criminal justice practitioners, unless they are prosecutors.
“It was shocking that it was that easy for a single institution to disrupt this critically important policy reform,” Stevenson said. “If you put more people in prison unfairly and sentence them unjustly, you are going to get more appeals.
An increase in that court’s docket is not something that should turn into a change in law.”
I wanted to identify the population still serving life without parole after Kirby, but data on people sentenced under Alabama’s habitual offender law has never been thoroughly compiled and analyzed.
According to the latest numbers available from the Alabama Sentencing Commission from October, 2019, 527 people were serving life without parole for crimes other than murder. The Commission provided data on the offenses that triggered life without parole, but nothing about the prior convictions.
The state also never tracked how many people were freed after Kirby, or how many, like Ron McKeithen, never got a chance to appear before a judge to argue why they deserved a second chance.
Working with existing data, I compiled the first known list of everyone currently serving life without parole under Alabama’s habitual offender law, along with the triggering and prior convictions that landed them there.
When I analyzed the findings, the first thing that jumped out at me was the disturbing racial disparity. Black people comprise only 27 percent of Alabama’s overall population, yet they make up half of the state’s death row and 73 percent of the people sentenced to life without parole as habitual offenders.
I also wanted to know how many could be considered “nonviolent offenders,” but by Alabama’s overly broad definition of violence, only a handful meet that standard. Outside of rape, the most common triggering offenses are robbery and burglary, both considered violent in Alabama. At least 300 people in this population have no sex crimes on their records, but without looking at all the facts of each individual case, it is impossible to untangle how many of the cases, like Ron’s, left no one physically injured.
One hundred and sixty-three people in this group, like Ron, only have one Class A felony on their records, which means they wouldn’t be sentenced to life without parole today, because the court now has discretion to choose a lesser sentence.
Twelve of them have served over four decades in prison. Tommy Pylant, a white man, has spent over 47 years in prison. A 1988 burglary conviction triggered a mandatory life without parole sentence due to his prior crimes; grand larceny, robbery and a series of escape attempts dating back to 1972. I found a handwritten letter to the court that Pylant wrote in 1999, claiming that prison officials were reading his mind after slipping a device into his body.
I found 112 men who committed their last crime in the 1980s, like 73-year-old Arthur Mallory, a Black man sentenced to life without parole in 1981 for the robbery of a jeweler in which Mallory served as the lookout. His prior convictions were three forgeries and a robbery from 1970, when he was 24. Mallory filed numerous motions for a sentence reduction after Kirby, which were all denied, based on the state’s conclusion that he is a violent offender, due to the robbery he committed 50 years ago.
I found 18 men whose worst crimes were burglaries, like Bobby Sanford, a white man from Birmingham sentenced to mandatory life without parole in 1995 for one burglary, five thefts and a drug conviction. His brothers told me they spent thousands of dollars on an attorney for his Kirby hearing, held in front of the same judge that imposed the life sentence. The judge immediately denied Sanford’s claim and sent him right back to prison with little explanation.
Alabama continues to sentence people to life without parole under the habitual offender law, even though prosecutors and judges have less punitive options, like presumptive sentencing guidelines that were adopted in 2013. Since 2003, 177 people have been sentenced to life without parole for crimes outside murder, and 128 of them are Black. Because of this steady influx, the overall number of people sentenced to die in prison never meaningfully changed after Kirby.
With other sentencing options, prosecutors must now choose to invoke the habitual offender law and geography appears to play a role in who gets this punishment. Houston County, where prosecutor Doug Valeska presided for more than three decades before he was cited for ethics violations, has sentenced people to life without parole under the habitual offender law at four times the rate of Alabama’s largest county.
After I began corresponding with Ron in 2015, he put me in contact with several other men serving life without parole who were all unable to free themselves after Kirby, despite having no history of violent behavior.
Michael Schumacher is one of them. He’s currently one of 150 “low-risk inmates” that ADOC kept at Holman Correctional Facility after the agency decided in February to close most of the building because of failing utilities. The small population at Holman was one of the last in the Alabama prison system to be struck by COVID-19. First, a half dozen Holman employees tested positive in July. Then in mid-August, the first positive cases were identified among the 150 mostly older men who occupy one lone dorm in the otherwise empty prison. Now 18 men at Holman have been diagnosed with coronavirus, along with 18 prison workers.
Michael, who just turned 60, survived pneumonia in 2018 and was rushed to the hospital in 2019 with a punctured lung after breaking several ribs when he fell on a wet floor. He worries coronavirus would be too much for his fragile immune system.
“With my underlying health issues, I don’t think I could survive a bout with this,” he wrote to me in a recent letter, “and there are many others here in my dorm in the same boat.”
In 1985, Michael and two friends robbed a small grocery store after a night of bar hopping. Michael, armed with a pool cue stick, stood by while one of his friends snatched money out of the cash register.
“We ran out of the door laughing, thinking this was funny,” Michael wrote.
The robbery netted $147 in cash, some of it in coins that spilled onto the floor. At trial, the co-defendant that took the money testified against Michael and the third man in exchange for a 10-year sentence, while Michael and his friend both got life without parole as habitual offenders. Michael had three prior drug-related convictions from Georgia that were used against him.
I reached the man who testified against Michael by phone. Mike Cavitt said the robbery marked his first and only offense, and he remembered Michael and the third man being punished more harshly because of the habitual offender law. “We called it the bitch law,” he said.
Cavitt served seven years of a 10-year sentence and 35 years later, he still thinks about the two men who are still in prison for the same crime.
“I don’t think it’s fair that they are still there,” he said. “We were young and stupid and full of drugs and alcohol. They shouldn’t have gotten any more time than I did. I keep hoping one day they’ll do away with the law and they’ll get a new sentence.”
Despite the runaway violence and drugs in Alabama prisons, Michael managed to get sober and worked as a prison drug and alcohol counselor for ten years. He also earned his GED, and a certificate in plumbing, back when Alabama prisons allowed men serving life without parole into trade school. He has appealed his sentence repeatedly and filed several Kirby motions, but all have been denied.
For a decade of his incarceration, Michael was married. He met his wife through a pen pal program, they fell in love and got married at the prison. She lived in New Jersey, and visited every few months for a decade, but with only a quick hug and kiss allowed during their visits, the lack of physical intimacy was frustrating. Alabama, like most states, does not allow conjugal visits, even for married couples, and Michael’s wife desperately wanted a child.
The repeated denials from the courts began to weigh heavily on their marriage, and they finally divorced in 1997. Since then, all of Michael’s family members have died.
“From time to time, when the loneliness gets too rough, I will give my ex-wife a phone call and it helps,” Michael wrote.
Another castaway is Robert Cheeks, a 77-year-old Black man sentenced to life without parole when he was 42 for bank robberies. He worked in construction before his arrests, but was drinking and smoking a lot when he committed his crimes.
I found a 2005 appeal he filed pro se, without an attorney, which the court denied on procedural grounds. “By requesting the court to reopen the events occurring over twenty years ago, the Petitioner now seeks to shipwreck the orderly judicial process,” the Court wrote.
I looked up Robert’s picture in the prison database, his aged face seemed to stare off into the distance with an expression of dismay, red-rimmed eyes behind thick, prison-issued glasses and a head completely bald except for two puffs of short gray hair above his ears.
Robert wrote me several letters and shared that both his 95-year-old mother and his pen pal of 30 years died in 2017, leaving him with no more contacts in the outside world.
“I regret having committed the said robbery that caused me and others this trouble, but I have no bitterness toward anyone else for my own problems,” he wrote. “I would very much like to experience a full measure of freedom, to live out the remainder of my days.”
I met Lawrence Posey at a meeting for OAA, the “Offender Alumni Association,” a support network for people coming out of prison that he helped get off the ground in 2014. He was sharply dressed, wearing a grey sweater and plaid fedora. He agreed to talk to me about his background, which included a life without parole sentence for robberies. Lawrence remains the only person I’ve met who managed to free himself on a Kirby motion filed without a lawyer.
He grew up in Birmingham’s Ensley community, an African-American neighborhood that’s been recently plagued by poverty and gun violence.
“I learned every bad thing there is to know at an early age,” he told me.
Today, Lawrence works full time as a peer recovery support specialist at the University of Alabama at Birmingham. Part of his job includes teaching classes in Jefferson County’s community corrections program, and he always wears a Bluetooth earpiece so his clients know they can contact him anytime.
In 1975, Lawrence was 18 when he stole money from a convenience store and got his first robbery conviction. No weapon was used, so he was sentenced to probation. Two years later, he and a friend robbed an Army/Navy surplus store at gunpoint and he was sentenced to 15 years, but served three. Then he let a “knucklehead” borrow his car, who used it in a robbery and gave Lawrence some of the money. For that, he pleaded guilty and got 20 years. If he’d been convicted in a jury trial, the DA told him he would have gotten life.
Out on parole in 1989, Lawrence was working as a cook in a restaurant when he began hanging out with some guys he knew from prison. Two of them robbed a grocery store at gunpoint while Lawrence sat in their car.
“I should have got out and started walking,” Lawrence admitted at his 2008 Kirby hearing before Jefferson County’s then-presiding judge Scott Vowell.
Instead, one man was arrested and gave police his friend’s names, including Lawrence’s. They were all charged with first-degree robbery, and while Lawrence was arraigned in court, an eyewitness to another robbery told prosecutors he thought Lawrence looked like a man that had robbed a drugstore. Lawrence still maintains he did not rob the drugstore, but he was convicted of both robberies and sentenced to a mandatory life without parole under the habitual offender law. He was 34 at the time.
“I look back at my stupidity and I can’t believe it sometimes,” Lawrence told Judge Vowell in court. “I know I made a mess of my situation. That’s so far behind me. That’s my past.”
But the Jefferson County DA’s office didn’t think that was enough. Assistant District Attorney John Bowers hotly opposed reducing Lawrence’s sentence, arguing that Lawrence wasn’t eligible for reconsideration under Kirby because under the law, he was a violent offender.
Before Lawrence’s hearing in 2008, Judge Vowell had denied his previous Kirby motion without a hearing. Vowell said at the time, he felt the statute limited his power to reduce a life without parole sentence because Lawrence had been convicted of a Class A felony. But in the years following the Kirby decision, several subsequent cases directed judges to consider “the totality of circumstances” and not just the individual convictions. Vowell was impressed with Lawrence’s persistence.
“He appealed my first order to the Court of Criminal Appeals and that’s not easy to meet all their technical appellate requirements,” Vowell said. “I let him tell me his story in his own words, and I thought he had really turned himself around.”
Lawrence told Judge Vowell that he worked in the prison laundry and sang in the prison choir. He became involved in several programs to reach younger men in prison, so they could learn from his mistakes. He wanted to do that in the free world.
“Nobody can guarantee somebody’s else’s behavior,” Vowell told me. “Every judge’s nightmare is you’re going to put somebody on the street where they’re going to hurt somebody else. I’m glad that didn’t happen here.”
Vowell decided to give Lawrence a chance and he reduced his sentence, allowing Lawrence to apply for parole. Ultimately, it was Lawrence’s own words in court that convinced Judge Vowell that he was worth the gamble.
“I’m not looking for the Court to give me forgiveness for my past,” Lawrence said. “This is about a man making a change. This is about a man having something to offer to society for all these mistakes he’s made. I’m not making no excuses for the things I did. Ain’t nobody’s fault but mine. I’m standing here with something to offer. It’s about the difference that I can make in a whole lot of people’s lives. There’s a lot of work to be done. That’s where I stand. I stand in change.”
I often find myself wondering just how bad things will have to get in order for Alabama leaders to show some urgency. In 2019, a record 29 people died from homicide, suicide or overdose in Alabama prisons and 2020 deaths from the same causes are outpacing last year. COVID-19 continues to spread through the crowded prisons as people sleep cheek to jowl, some in dormitories that don’t even have working sinks or showers. Since April, the number of positive COVID cases among ADOC’s incarcerated population has increased a hundredfold and at least 20 have died, yet there’s been no concerted effort to release men and women with the highest risk.
In addition to the DOJ investigation, Alabama is currently in the remedy phase of a multi-million-dollar lawsuit that it lost over inadequate mental healthcare in the prisons. In order to solve these comprehensive problems, leaders must not only reduce the prison population, but also hire more staff and improve outcomes with better rehabilitative programs.
Governor Kay Ivey’s promised “Alabama solution” to the prison crisis consists of hiring private contractors to build three new mega-prisons, which will be leased back to the state for $88 million a year over 30 years. On September 3, Ivey announced CoreCivic, the private prison giant, won two of the contracts. The third went to a group known as “Alabama Prison Transformation Partners.” Alabama’s legislature considered similar prison-building plans twice in recent years, but the measures failed to pass, mostly due to concerns over cost. The governor’s plan bypasses the need for legislative approval, but is fraught with murky math and ignores the obvious issue of Alabama’s over-incarceration, particularly among African-Americans.
Ivey also formed a “study group” on criminal justice reform that met once-a-month beginning in August, 2019, but the governor only attended a few minutes of the very first meeting. The group released a list of policy recommendations in February, but reforming the habitual offender law did not make the list.
“Everybody will admit privately it is the root of a lot of the problems we are facing now,” retired lawmaker Dick Brewbaker told me, who supported reforming the habitual offender law. “But nobody knows what to do about it. How do we go in and unring that bell?”
Criminal justice reform in Alabama can be a maddening process. In 2011, the legislature declined to pass a package of sentencing reforms that would have diverted people convicted of nonviolent drug and alcohol offences out of prison and into treatment. Supporters said resistance from lawmakers came from fear, fanned by misinformation.
“3000 inmates may be released,” a headline in the Montgomery Advertiser stated the day after public hearings on the reforms.
In 2014, Alabama created another prison reform task force out of fear of a federal takeover. The state prison system was operating at 195 percent of its designed capacity, and a Department of Justice investigation found widespread sexual abuse of female prisoners by staff at Julia Tutwiler Prison for Women.
The following year, the legislature passed a package of criminal justice reforms lauded as “historic,” including the creation of a Class D felony for low-level property and drug crimes, which would not count as a “strike” under Alabama’s habitual offender law, but they didn’t make it retroactive. If lawmakers had taken that step, two of Ron McKeithen’s prior convictions for credit card fraud would have been downgraded and he would have been freed at age 53.
Last year, lawmakers passed a bill that allows for “chemical castration” of sex offenders, but not one bill was signed to address prison overcrowding. A bipartisan group of lawmakers, led by Sen. Ward, announced in May of 2019 their goal to reduce the prison population by a mere 15 percent over five years. Since then, Alabama’s prison population has grown for the first time in five years, mostly due to an unprecedented drop in paroles ever since Governor Ivey tapped her old friend, “Lock-em-up Charlie” Graddick, the architect of the habitual offender law, as the new executive director of Alabama’s Bureau of Pardons and Paroles.
Last year at the Alabama state house, I had a long, meandering conversation with Barry Matson, chief deputy director of the Alabama District Attorney’s Association. I wanted to get an idea of which sentencing reforms he was open to, but Matson would not commit to any specific idea.
“There are some things that are being discussed that are positive and things we can work towards,” he said. “My concerns are about the release of violent offenders.”
And there it was again. The familiar trope of “releasing violent offenders” that seems to appear in every news story ever written about undoing Alabama’s habitual offender law. The implication is that a “violent offender” is actively dangerous, guilty of causing physical harm and likely to do it again, but none of this is necessarily true.
Bryan Stevenson believes labeling a person as “violent” according to their crime ignores the reality that people change, especially men and women subjected to long-term criminal sentences.
“We don’t punish crimes, we punish people,” Stevenson told me, “and people are more complicated than a single act.”
Alabama defines whether a person is violent based exclusively on their convictions, and a violent crime does not have to result in physical harm to a victim. The legislature decides which crimes in Alabama are violent and currently 51 different crimes are on the list, including burglary, extortion and drug trafficking. By contrast, the FBI’s crime reporting program only classifies four offenses as violent crimes.
(Ron McKeithen as a teen)
But actual violence does have real victims. Even though Ron McKeithen’s robbery didn’t end in physical injury, the victims were held at gunpoint, which must have been terrifying.
I reached one of the men by phone that Ron robbed 36 years ago, and he had a hard time believing Ron was still in prison. Farooq Janjua owned the Circle N Grocery in Ron’s neighborhood and was there with his business partner when Ron and Smokey robbed them in 1983.
“They told me don’t move. I kept my eyes down and one pulled a pistol out of my pocket,” Janjua told me. “That was it. I don’t think he’s serving time in my case.”
I explained to Janjua that Ron is indeed still serving time for that robbery because he received a mandatory life without parole sentence due to his prior record. He was still skeptical.
“If that’s true, I’m really surprised,” he said.
His perspective comes from astonishing experience. Janjua told me he was robbed a second time in 1995 in the same store, 12 years after Ron and Smokey’s crime. In the 1995 crime, the 18-year old perpetrator shot Janjua seven times. Incredibly, he survived with no lasting health problems.
“That was real robbery,” he said. “I am blessed.”
The young man who shot Janjua, Jeffery Peoples, was also from the neighborhood, and was sentenced to life for the crimes. When he was eligible for parole after serving over 11 years, relatives of Peoples talked to Janjua, and he agreed to not oppose his parole.
I asked Janjua how much time he felt Ron McKeithen deserved to spend in prison.
“I don’t know,” he said. “I don’t have a problem with his release. That was a long time ago. If he’s really still serving time for that robbery, it looks like that’s not fair.”
Ron sent me a copy of his latest risk assessment, an exam that rates a person’s risk of reoffending based on factors like crime of conviction, institutional behavior, age and work assignments. Ron’s risk was a negative one, a score that would normally qualify someone to be moved to a work release facility, but Ron isn’t eligible because of his sentence. A former ADOC classification officer told me Ron’s miniscule risk of reoffending was typical in her experience of giving risk assessments to aging prisoners serving life without parole as habitual offenders.
I talk to Ron on a regular basis, and he’s been disappointed that prison church services and classes are on hold because of the coronavirus, but he’s spent his time during the lockdown drawing, painting and writing on his bunk. Occasionally he steps outside into the Alabama humidity and heat for a quick cigarette. Somehow, he remains hopeful.
“Even though I’m stuck in this crazy cycle, feeling as if I’m surviving minute by minute, there is no damn way I can give up hope,” he wrote me recently. “The fear of never getting out, or dying in here, is like vomit I’m constantly trying to hold down, so I try to stay busy. But I also have this strong feeling that God has more for me than this. I don’t belong here. At least not anymore.”
I asked Ron to tell me more about the last Kirby motion he filed, the one he wrote himself and rushed to submit before lawmakers repealed the retroactive application of the law in 2014. He told me he felt good about his chances then, because he’d served so much time and had gotten better at writing legal appeals.
After he mailed it off, Ron waited anxiously for a response for several weeks, until one evening an officer called out his name for legal mail.
Ron signed for the letter and walked back to his bunk to open it. He remembers his heart pounding while he unfolded the single page from the Jefferson County Circuit Court. He took a deep breath.
The letter signed by Judge Laura Petro informed Ron that the statutory authority for the Kirby decision was repealed by the legislature and signed by the governor on March 13, 2014. The envelope that carried Ron’s motion from the prison to the court was stamped March 17, 2014 and “therefore the Kirby decision is no longer applicable by law.”
Ron remembers staring at the letter, feeling a dull numbing in his body, then black emptiness.
His last plea for freedom was four days too late.