State v. Adams, CR–08–1728.

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: WELCH
• Citation: 91 So.3d 724
• Parties: STATE of Alabama v. Thornal Lee ADAMS.
• Decision Date: 05 November 2010
• Docket Number: CR–08–1728.

91 So.3d 724

STATE of Alabama
v.
Thornal Lee ADAMS.

CR–08–1728.

Court of Criminal Appeals of Alabama.

Nov. 5, 2010.

Prior Version Held Unconstitutional

Code 1975, § 15–20–22(a)(1)

[91 So.3d 728]

Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellant.

David I. Schoen, Montgomery, for appellee.

WELCH, Judge.

The State of Alabama appeals the trial court's order declaring unconstitutional that portion of former § 15–20–22(a)(1), Ala.Code 1975—a part of the Community Notification Act (“CNA”), § 15–20–20 et seq., Ala.Code 1975—requiring an adult criminal sex offender to provide the Alabama Department of Corrections (“DOC”), at least 45 days prior to the offender's release from custody,¹ “the actual address at which he or she will reside or live upon release” and dismissing the indictment charging Thornal Lee Adams with violating that section. We affirm.²

Facts

The facts are undisputed. Adams was convicted in 2001 of first-degree rape and first-degree sodomy. Section 15–20–21(1), Ala.Code 1975, defines “adult criminal sex offender” as any “person convicted of a criminal sex offense” and § 15–20–21(4), Ala.Code 1975, lists first-degree rape and first-degree sodomy as criminal sex offenses. Therefore, Adams is an adult criminal sex offender subject to the provisions of the CNA. Adams was incarcerated in Kilby Correctional Facility (“Kilby”) and scheduled for release in 2008, after completing his sentence. He failed to provide the DOC with an actual address where he would live or reside after his release and, on his scheduled release date, he was arrested and transported to the Montgomery County Detention Facility for violating § 15–20–22(a)(1), Ala.Code 1975. Adams was subsequently appointed counsel and was indicted for that offense.

Counsel filed a motion to dismiss the indictment, arguing that the portion of former § 15–20–22(a)(1) that required an adult criminal sex offender to provide the DOC the actual address at which he or she would live or reside upon release at least 45 days before the offender's release from custody was unconstitutional on various grounds. Specifically, counsel argued that that portion of § 15–20–22(a)(1) was unconstitutional under both the United States Constitution and the Alabama Constitution because: (1) it did not provide any notice as to how a homeless adult

[91 So.3d 729]

criminal sex offender could comply with the statute and, thus, was vague on its face and as applied to Adams; (2) it constituted cruel and unusual punishment as applied to Adams because it punished him for his status as a homeless person; (3) it violated Adams's right to due process because it required Adams to perform an act that he was incapable of performing; and (4) it violated Adams's right to equal protection of the law because it incarcerated him for his indigence when other offenders who were not indigent would not be punished under the statute.

The State filed a response to the motion, arguing that the portion of § 15–20–22(a)(1) at issue: (1) was not unconstitutionally vague because, it argued, the term “actual address” simply meant the location where the offender could be found after his or her release; (2) did not constitute cruel and unusual punishment because, it argued, it did not punish Adams for his homelessness but solely for failing to provide the location where he could be found after his release; (3) did not violate Adams's right to due process because, it said, Adams could have provided a “real location” where he could be found after his release and, thus, could have complied with the statute but refused to do so; and (4) did not violate Adams's right to equal protection of the law because, it argued, the statute did not punish Adams for his indigence but punished him because he refused to comply with the statute when he could have done so.

Adams's case was assigned to Montgomery circuit judge Truman Hobbs, who conducted a hearing on the motion to dismiss on July 13, 2009. Judge Hobbs consolidated Adams's case with Richard Coppage's case (case no. CC–09–323) for purposes of the hearing; the circumstances surrounding Coppage's case were similar to Adams's case in all relevant aspects, and Coppage's motion to dismiss involved the same legal issue.³ At the hearing, Judge Hobbs accepted as evidence a transcript of the hearing conducted before Judge Tracy McCooey in a similar case involving Jeffrey Lee Seagle (case no. CC–09–733), in which Judge McCooey dismissed the indictment against Seagle.⁴ On August 21, 2009, Judge Hobbs entered a single order dismissing the indictments against Coppage and Adams on the same four grounds asserted in the motions to dismiss.

The following evidence was presented in the trial court. Adams testified that he was a convicted sex offender and that he had been incarcerated in Kilby for seven months, with a scheduled release date of June 7, 2008.⁵ In early 2008, Adams said, his classification officer asked him for an address where he would be living after his release. Adams told the officer that he did not have a place to live, and he asked the officer for advice. The officer told Adams that he had to get an address and that the library would have the information he needed to do so. Adams said that he did not believe that he could list a park bench or other public place as an address, and that he was told that he could not invent an address or list an address that did not comply with the residency restrictions in the CNA because the address

[91 So.3d 730]

would be both verified as a true address and checked to determine whether it complied with the CNA. Adams testified that he went to the Kilby library and obtained a listing of halfway houses. He wrote to all the halfway houses on the list that indicated they accepted sex offenders, approximately 13 to 15, but he had received no responses within 45 days of his scheduled release. Adams said that Kilby did not have a listing of apartments, rental houses, or motels, but that even if it did, he was indigent and could not have afforded to rent an apartment, house, or even a motel room. He also said that he did not have access to the Internet at Kilby; that he was not permitted to make telephone calls around the state to search for a place to live; that he could not leave the prison to look for a place to live; and that Kilby did not have any listing of schools, housing projects, etc., in the state to enable him to determine where he could live after his release and be in compliance with the residency restrictions in the CNA. Adams further testified that he had no friends or family with whom he could live and be in compliance with the residency restrictions in the CNA.

Adams testified that approximately 45 days before his scheduled release date, he was asked to fill out a form and to provide an address where he would be living when he was released. Adams wrote on the form “I don't have an address” and signed it. Adams said, however, that he received a response from one halfway house three days before his scheduled release from Kilby informing him that he had been accepted to live there but that when he informed his classification officer, he was told “it was too late for an address” and he was transported to the Montgomery County Detention Facility on the day of his release from Kilby.⁶

Rosie Smith, a paralegal with the Southern Poverty Law Center, testified that in May 2009 she conducted extensive research on available housing for homeless sex offenders. According to Smith, she looked at the list of halfway houses provided by Kilby, contacted eight regional offices of the Alabama Homeless Coalition, and conducted exhaustive Internet searches. Smith ultimately contacted 60 homeless shelters and/or halfway houses in Alabama and found that only 4 of those shelters/halfway houses accepted sex offenders. At the time she conducted her research, Smith said, all four of the places that accepted sex offenders were full. With respect to the list of halfway houses provided by Kilby to its prisoners, Smith testified that “a lot” of the addresses on the list were incorrect; that the list incorrectly stated that certain shelters/halfway houses accepted sex offenders when they did not; and that she was unable to find valid telephone numbers or addresses for many of the shelters/halfway houses listed, suggesting that they were no longer open. Of the places on the Kilby list, Smith found only one that accepted sex offenders, and the director of that shelter informed her that available spots were severely limited because of funding issues. Smith also testified that one of the other three places she had found that accepted sex offenders required a $200 application fee that would rarely be waived, as well as a fee to live there, again because of funding issues, and that acceptance was solely in the director's discretion; that another place she found that accepted sex offenders accepted only certain sex offenders (those whose offenses were committed

[91 So.3d 731]

against adults) and that acceptance was solely in the director's discretion; and that the fourth, and final, place that she found that accepted sex offenders was limited solely to those offenders who had HIV or AIDS.

At the hearing, a blank copy of the form Adams said he had been required to fill out before his release from Kilby was introduced into evidence. The form is entitled “Alabama Department of Corrections Sex Offender Notification Worksheet.” It appears from the hearing that the form used by Kilby is a standardized form used by the DOC throughout the State prison system. The form requests the “intended living address” of the offender to be released and provides a space for the offender to supply his or her “street/city/state/zip,” as well as his or her “county,” “phone number,” “contact (residency),” and “employer's name and address (if any)” and “phone number.” The form also requires the signature of the offender to be released with the following...