In the final days of the Alabama special GOP primary runoff for U.S. Senate, appointed Sen. Luther Strange resorted to an inflammatory TV spot strongly implying his opponent Roy Moore shielded a child molester from justice and downplayed the seriousness of child sex abuse as Chief Justice of the Alabama Supreme Court.
Thursday, in a move reminiscent of George H.W. Bush campaign manager Lee Atwater’s infamous 1988 “Willie Horton” play, the Strange campaign released an ad titled “Protecting Children.” It highlights the 2012 case of Eric Lemont Higdon, a then 17-year-old day care intern convicted of taking preschool-aged boys into a bathroom and performing oral sex acts on them. Higdon was convicted of first-degree sodomy by an Alabama jury and sentenced to 23 years in state prison.
In 2015, Strange, then Alabama Attorney General, wound up litigating, and winning 8-1, a technical and inconsequential aspect of the case before the Alabama Supreme Court, of which Moore was then Chief Justice.
The ad implies that Moore sided with Higdon, put his prison sentence in jeopardy, and did not see a “serious threat” from child sex abuse. In reality, nothing Justice Roy Moore wrote in his lone dissenting opinion would have had any effect on Higdon’s release date, now slated for 2037 at the earliest, even if all eight of his fellow Alabama Supreme Court Justices had signed on to it. Far from dismissing the seriousness of Higdon’s crimes, Moore began his dissent by writing, “Sodomy is an abhorrent crime and should be strictly punished” and citing with approval the long prison term to which Higdon was sentenced.
According to Strange’s ad, a “liberal court” struck down “a” Higdon conviction. Glossed over is the word “a.” At no point was Higdon’s 23-year sentence in question. Instead, the case concerned a second count of “forcible” sodomy that netted Higdon another 15-year sentence that he would serve concurrently and would have no effect on his release date.
The “liberal court” to which the ad refers is the Alabama Court of Criminal Appeals. All five members of the court are Republicans, as they were in 2014 when Higdon’s case came before them. Not only is the Alabama Court of Criminal Appeals rarely if ever described as “liberal,” it is a frequent target of left-wing media seeking to portray it as an unjust and even racist southern court because of its overwhelmingly “tough-on-crime” record. In 2016, the NAACP went as far as to sue to have Alabama’s democratic system of judicial elections overturned because each of the five judges Alabamans chose to elect to the court were white.
Directly applying Alabama Supreme Court precedent, the Court of Criminal Appeals ruled that, because there was no evidence Higdon used any violence or made any threats to his victims, the state had not presented enough evidence to sustain an element of this second conviction that required “[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places another person in fear of immediate death or serious physical injury to himself or another person.”
It was only this statutory legal standard to which Moore was referring in the Strange campaign ad’s context-less and embellished quote that Moore “saw no threat of serious physical injury to the child victim.”
Chief Justice Moore agreed with the Court of Criminal Appeals, arguing that to overturn precedent and allow the fact that Higdon was a day care worker to constitute an “implied threat” of “death or serious physical injury” would mean the “court was stepping into the shoes of the legislature.” Moore emphasized the importance of the roles of the different branches of government and wrote, “Although this may be a noble cause in certain situations, policymaking is beyond the role of this Court.”
Although Moore’s eight colleagues disagreed with him and did overturn precedent to allow convictions for “forcible” sodomy in situations like Higdon’s, there is no evidence this ruling had any effect on his case’s outcome. In fact, Alabama prosecutors do not even appear, based on Higdon’s inmate report, to have acted to have his second conviction reinstated after the Alabama Supreme Court’s ruling.
The “Protecting Children” ad comes as the latest in a series of increasingly biting attacks by the Strange campaign and its allies, as it comes within days of the special election down significantly. Strange responded to Moore’s complaints about the attacks, and Moore’s own attack during the debate about Strange’s involvement in an EB-5 visa fixing firm, by saying, “Well for someone who is complaining about a lot of personal attacks, you seem to be prepared to deliver a bunch of them tonight.”
Atwater’s 1988 “Willie Horton” ad became a hallowed example of campaign season dishonesty when it implied Democratic presidential candidate Michael Dukakis was responsible for the release of a convicted murderer who committed a string of horrific crimes, including repeatedly raping a woman and severely beating her fiance after he skipped out on a weekend furlough program. Atwater invented details, including the nickname “Willie,” which Horton reportedly never used, and glossed over Dukakis’s personal involvement in the case, which amounted only to having been the Governor of Massachusetts at the time.
In Horton’s case, Dukakis had in fact supported “soft-on-crime” liberal criminal justice policies that allowed a dangerous criminal out on furlough. Horton did in fact go on to commit serious crimes as a result. By contrast, the Strange campaign’s attack ad against Roy Moore focuses on a legal opinion that never had any potential to let anyone out of prison early to create the implication that Moore sides with child molesters and “liberal courts” to put Alabamans at risk.