February 28 Newsletter

February 28, 2016

Everyone’s Talking Sentencing Reform?

It seems as though a lot of talk has been focused on sentencing reform this year.  Iowa’s senior senator in Congress has bragged about a bill that will reform a federal sentencing statute.  Iowa’s governor has boasted about his Working Group to address specific issues related to disparate sentencing of African-Americans.  In his Condition of the Judiciary speech, Chief Justice Cady also called for sensible solutions to Iowa’s prison population.  So, we should expect a reduction in prison population numbers any day now, right?  Don’t hold your breath.

We have reviewed the bills that survived the Iowa Legislature’s first funnel deadline and have observed that not everyone received the public’s message that it wants true sentencing reform.  Some of the legislative bills that enhance penalties this year are somewhat sensible.  Yes, you should not mistreat animals, and the resulting penalties in SF 2289 seem to fit the crime.  On the other hand, House File 2064 classifies child endangerment resulting in death of a child as a forcible felony (defendant must serve 70% of the sentence before being considered for parole), based upon the idea that one legislator didn’t think the punishment fit the crime.  But as it seems in matters of getting tough of crime, there’s more to the story.

There are two instances that come to mind when thinking about the death of child and an adult charged with child endangerment resulting in death; shaken baby syndrome and Christian Science Religion.  In these cases, if the parent is the one charged, the child’s death is an eternity of punishment.  Losing a child is not normal – under any circumstances.

There is a difference between 1st degree robbery, kidnapping, other forcible felonies, and the charge of child endangerment resulting in death.  Perhaps a violation of child endangerment resulting in death is not an oversight.  There are going to be instances in which the person charged does not have the criminal intent similar to someone committing the act of 1)murder in the second degree; 2) attempted murder; 3) sexual abuse; 4) kidnapping in the 2nd degree; 5) robbery in the 1st or 2nd degree; or 6) vehicular homicide when driving drunk.

Praying over a sick child should not result in serving 35 years in prison without an opportunity to be heard.  And a minute of frustration should not be worth 35 years of sitting in regret.  “[C]ases of shaken babies, crying is the most frequent trigger mechanism that causes good people to make a really poor decision and shake them just to try to get them to stop crying.” Observing that shaking is commonly precipitated by frustration over fussiness is not the same as suggesting that fussiness often leads to shaking.” Seymour v. City of Des Moines, 519 F. 3d 790, 798 8th Cir. 2008). These instances should be weighed on a case-by-case basis, and the judgment of a parole board panel should be the proper venue for determining when a regretful parent should re-enter society, not a one-size-fits-all statute that cannot determine between mean and sorrowful.

Enhancing penalties should come with a pretty darn good explanation.  In the past, Iowa legislators have failed to do that.  Today, they’re much better in seeking all the answers before jumping to conclusions that may haunt families forever.

RC’s Legislative Agenda for 2016

 The following bills have already seen a vote in one chamber or the other:

Senate File 2289A bill that criminalizes the mistreatment of animals that are not livestock or game, and enhances penalties under certain circumstances.  JRC is registered as “UNDECIDED” on the bill because it is estimated that animal abuse crimes “will result in an estimated increase of 26 convictions annually.”  The estimated result of convictions is not significant enough for JRC to justify working against this issue.  The bill passed the Senate 32-16 on February 25.

SF 2288 – A bill relating to the confidentiality of juvenile court records in delinquency proceedings.  JRC has declared in “SUPPORT” of this bill.  It passed the Senate 48-0 on Feb. 25.

SF 2185 – This bill extends the scope of criminal trespass to include trespass that violates a “person’s expectation of privacy”.  JRC is “UNDECIDED” on this bill.  Lacking a Fiscal Note, which would provide estimates on the number of convictions expected, we believe that the number of person charged and convicted of this crime to be very minimal. It passed the Senate 50-0 on Feb. 24.

SF 2183 – A bill extending the statute of limitations from 3 to 10 years in child endangerment cases.  Although JRC is “UNDECIDED” on this bill, we have grave concerns about extending the statute of limitations beyond 3 years, except in cases involving murder. It passed the Senate 50-0 on Feb. 23.

 F 2116 – This is a synthetic drugs bill.  We’re going to see one of these bills every session as long as chemists can determine which molecule to alter/delete/add so that the ban on one specific combination of molecules provides the same unrealistic adventure as its grandfather, without being specifically banned.  JRC is “UNDECIDED” on this bill.  SF 2116 passed the Senate on Feb. 22 by a vote of 49-0

SF 2115 – JRC wrote about this bill last Jan. 31st. At the time, we referred to the bill as  Senate Study Bill 3007.  We also mentioned this bill in the most recent newsletter, also.  The legislation will add “jailers” to the list of professions that may be the subject of a charge of “interference with official acts”.  We “OPPOSE” this measure.  It has no purpose but to punish the mentally ill and intoxicated.  Despite our opposition, the bill passed out of the Senate 49-0 on the 22nd.

SF 2061 – This bill is a response to the Iowa Supreme Court case State v. Young, 863 N.W.2d 249 (2015)(Amended July 17, 2015.)  In Young, the Court held that “a misdemeanor defendant has a right to the assistance of counsel when the defendant faces the possibility of imprisonment.”  Like everyone else, JRC is “UNDECIDED” on the bill.

SF 2059 – This is the Department of Corrections’ bill for 2015.  JRC is “UNDECIDED” on this bill, also.  We should be opposed because a “Violators’ Program” is required by law.  SF 2059 passed the Senate 48-0 on Feb. 22.

House File 2271 – This is a bill that pertains to identity theft.  JRC is “UNDECIDED” on the bill.  We sense there may be unintended consequences with this bill in the future, but since we can’t specifically identify those circumstances, we have to declare as being undecided.  HF 2271 passed the House 96-0 on Feb. 24.

The following bills are ready for debate sometime in the next two weeks:

HF 2064 – Penalty enhancements.  This bill enhances the penalty for child endangerment when the act results in the death of a child.  JRC consistently opposes legislation that enhances penalties without empirical evidence, but this bill has more than just the “we oppose all enhanced penalties” argument.  Here is what we said about it two weeks ago:

HF 2064 – A bill sponsored by a Democrat and Republican in the House, this supposedly non-controversial bill is “OPPOSED” by JRC. It would add the criminal offense of felonious child endangerment to the list of forcible felonies. Under the provisions of the bill, “an offender who commits the criminal offense of child endangerment that results in the death of a child or minor [must] serve 70 percent of a 50-year class “B” felony sentence. Under current law, such an offender is sentenced to confinement for 50 years but is eligible for parole upon entering prison.” Perhaps it seems logical to equate the sentence to the criminal act. However, there are some religions that experience the death of child when the parents rely upon means to treat the child outside the medical community. The tenets are deep and serious. To harshly punish these particular parents for what they believe to be the child’s best interest, according to their religion, is an overreach. JRC believes that just because a person is eligible for parole upon entering prison, the practice has never been as simple as the phrase suggests.

HF 2407 – A bill for an act relating to the confidentiality of juvenile court records.  JRC is declared in “SUPPORT” of this bill. 

HF 2401 – This bill would prohibit anyone from opening a credit card account, or using an account in the name of a minor without the consent of the minor’s parent, guardian, or legal custodian.  JRC “OPPOSES” this bill.  We might understand the penalty of a class “C” felony if the credit limit is above $10,000, but really, what minor is going to be able to acquire credit in the amount of five figures.  What is egregious about this bill is that a class “D” felony is committed if the credit limit is below $10,000.  Lumping $9,990 with $25 with the same penalty is not equity in sentencing. 

HF 2399This bill is an attempt to solve problems of assault in relationships.  The provisions of the bill go far beyond what is consistent with other Iowa law regarding criminal acts.  The bill also combines criminal with civil remedies, a combination that should not get started in statutory law.  JRC is “OPPOSED” to this bill.

HF 2385 – This bill makes illegal dumping a serious misdemeanor.  Currently, the act of illegal dumping is subject to a civil fine of up to $1,000.  Other provisions in this bill (determining which entity receives money from the fines) place this legislation is precarious position.  JRC “OPPOSES” this legislation for a couple of reasons. 

HF 2379 – A bill that requires the impoundment of a vehicle when the driver has been charged with operating while license is revoked, suspended, denied or canceled.  JRC “OPPOSES” this bill. 

HF 2367 – Establishes a prearrest diversion program.  The overall concept is okay, but JRC has some problems with this bill.  JRC is declared as “UNDECIDED” on this bill.

HF 2334 – This bill would allow certain psychologists to prescribe particular medicines under special conditions.  JRC is “UNDECIDED” on this bill.

HF 2333 – This measure would change the process of how consent decrees in juvenile delinquency cases are created.  JRC is “UNDECIDED” on this bill.

HF 2323A bill that would enhance the penalty for the commission of sexual misconduct with offenders and juveniles. This is one of those rare occasions in which JRC believes that the current penalty does not coincide with the crime that has been committed and “SUPPORTS” this legislation.

HF 2309 – A bill for an act relating to controlled substances, including by modifying the penalties for controlled substances containing cocaine base, enhancing the penalties for imitation controlled substances, modifying the controlled substances listed in schedules I, III, and IV, and temporarily designating substances as controlled substances, and providing penalties.  Equalizing the disparity between crack cocaine and powder cocaine is a priority of JRC.  This bill makes an attempt to bring the threshold amount of each closer to each other, but fails in equalizing the penalties for possessing similar amounts of these two pharmacologically identical substances.  JRC “OPPOSES” this bill for several different reasons.

 

The second legislative funnel arrives on March 11. On that date, bills that have passed out of a committee in one house by the Feb. 19 deadline must pass out of a committee in the chamber across the rotunda in order to be eligible for debate during the remainder of the session.   

PETITION

The following petition is a noble effort at trying to get the attention of legislators to get rid of mandatory minimums. JRC does not endorse nor sponsor the petition, but if you would like to sign it, please do. It is our belief that the legislators to whom this petition is directed are not necessarily the best recipients. To that end, we suggest that if you do sign this petition, take the time to inform YOUR legislators about your disappointment with mandatory minimums.

https://www.change.org/p/mary-wolfe-tell-iowa-legislators-to-revise-the-70-mandatory-minimum-sentencing-laws

Find out who your legislators are here.

Valentine’s Day Newsletter 2016

Vol. 7 #3 February 14, 2016

It’s The Same Thing

The discussion about how crack cocaine and powder cocaine differ has been ongoing for decades.  Most of what you have read is probably not true.  The United States Supreme Court identified the difference as “two forms of the same drug”. Kimbrough v. United States 128 S.Ct. 558, 566 (2007).  That’s the only difference.  Pharmacologically, they are the same thing.  Unlike comparing powder or crack cocaine to LSD, heroin, or methamphetamine, crack and powder possess the same physiological and psychotropic effects.

In a Sentencing Commission report to Congress, the report stated that “Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack’s potency and low cost were making it increasingly popular.”  Citing Kimbrough at 567 (internal citations omitted.)  The observations of Congress that this report exposed were hyperbole.

The Washington Post, Salon.com, and The Drug Policy Alliance consist of only 3 of many organizations pointing out the many myths associated with crack cocaine.  As the diagram below shows, there is virtually no difference between the molecular makeup of the two drugs.  It’s the same thing.

The Iowa Public Safety Advisory Board, way back in 2010, and each subsequent year since, recommended to the Legislature that it reduce the disparity between crack and powder to a ratio of 3:5 rather than the current 1:10.  It’s true that the PSAB vote was 9 to 6 in favor of this plan, but that is not an indication of the consensus that the Board had reached when it agreed that there should be an equalization of the two substances.  The disagreement of how to achieve that equality was represented in the vote. https://humanrights.iowa.gov/sites/default/files/media/PSAB%20Report%202012.pdf  page 4.  The Board reached its decision on the 3:5 ratio based upon fact – the “distribution of the amount of drugs seized” by law enforcement agencies.

The Iowa County Attorneys Association has come up with a new myth, and shared it with members of subcommittee in the Senate on Senate Study Bill 3127, “an act modifying the criminal penalties for a controlled substance that contains cocaine base”.  It has suggested that the dosage unit for crack is much less than a dosage unit for powder, and therefore, the ratio should be 1:5.  This appears to be an approach that was based upon an unscientific poll.  Even if it wasn’t, we don’t base drug crimes on the amount of similar substances consumed.  For instance, Ice is made from methamphetamine, but the possession of a particular amount of one is the same as it is for the other.  Did the ICAA compare snorting cocaine with smoking crack?  How about injecting cocaine?  You can only smoke crack.  You can only smoke methamphetamine ice.  And, you would use much less heroin by injecting than you would smoking it.  Yet, possessing the same amount of heroin for smoking, snorting, injecting, or lacing is static.  Under no other scheme is dosage a cause for administering penalties.

JRC prefers to see a 1:1 ratio between the two drugs.  We insist that the threshold amounts of crack be raised to meet those of the current weights of cocaine.  That time has not arrived.  We will settle with the considerate recommendation of the PSAB.  It’s time to quit playing games and look forward to what this bill (SSB 3127) is meant to accomplish – the decline of Iowa’s unjust disproportionate incarceration of young African-American men in state prisons.

JRC’s Legislative Agenda for 2016

The first legislative funnel is fast approaching.  Many people in Iowa can tell you what is meant by legislative funnel deadlines.  For those new to the state, or new to the love of political maneuvering, there are two funnel dates that appear on the Iowa Legislature’s calendar.  The first of these dates occurs this year on Friday, February 19.  This means that most issue-related bills must pass out of a standing committee by Friday in order to be eligible for debate.  Those that do not pass out of committee are considered non-viable for the rest of the session.  The second funnel deadline occurs on March 11.  On that date, bills that have passed out of a committee in one house by the Feb. 19 deadline must pass out of a committee in the chamber across the rotunda in order to be eligible for debate during the remainder of the session.   

We have listed below some bills that have made it out of committee, and a few that will need to get out of committee this week in order to be viable:

Senate File 84 – A bill leftover from last year, this is a version of “Ban the Box”.  JRC is declared in “SUPPORT” of the bill.  A subcommittee meeting on the bill was held on Tuesday, Jan. 19.  A subsequent subcommittee was held on Thursday, February 11.  Subcommittee members are:  Senators Herman Quirmbach (D-Ames), Chair; Rich Taylor (D-Mt. Pleasant); and Julian Garrett (R-Indianola).  The bill may come up for consideration in the Senate Judiciary Committee at any time this week.

House Study Bill 536 – A bill that would enhance the penalty for the commission of sexual misconduct with offenders and juveniles.  This is one of those rare occasions in which JRC believes that the current penalty does not coincide with the crime that has been committed and “SUPPORTS” this legislation.  The bill has been reviewed by a subcommittee and is expected to be considered by the House Public Safety Committee on Monday, Feb. 15.

SF 2164 – The bill provides for an expungement of records process when a criminal defendant has been convicted of certain crimes (public intoxication, simulated public intoxication, public consumption of alcohol, etc.) after two years have passed and the defendant has had no other convictions except for minor traffic violations.  JRC “SUPPORTS” this measure.  The bill is on the Senate Debate Calendar.  The floor manager is Senator Rich Taylor (D-Mt. Pleasant).

SF 2115 – This bill adds “jailers” to a list of occupational groups (police, EMS, firefighters, etc.) in which a person may be charged with “interference with official acts”.  Previously, we wrote about our opposition to this bill (when it was Senate Study Bill 3007) in an article entitled “Animal Farm Returns to the Capitol”.  JRC Newsletter, Jan. 31, 2016.  JRC “OPPOSES” this concept because it allows a “he said” – “she said” misunderstanding to be turned into a criminal matter, easily.

SF 2059  – This is the Iowa Department of Corrections’ lone bill for the session.  JRC is declared as “UNDECIDED” on the bill.  The bill has two parts.  First, it changes language in the Iowa Code that requires the department to establish a Violators Program.  The bill changes the requirement (“shall”) to “may”.  Second, it gives the department the ability to reduce the time a forcible felony offender must stay in residential housing before being released.  It gives the Parole Board discretion, with recommendation by the District Department of Community-based Corrections, to release offenders earlier than the current one-year requirement.  Although JRC appreciates the common sense approach to the latter, the former has left us dismayed.  We believe the Violators Program was effective.  Unfortunately, the Department’s ability to fully fund programs of worth is fading, due to the Legislative and Executive Branches goal of achieving status quo budgets.

The following bills have passed out of a subcommittee and are awaiting consideration by committees in the House:

HF 2064A bill sponsored by a Democrat and Republican in the House, this supposedly non-controversial bill is “OPPOSED” by JRC.  It would add the criminal offense of felonious child endangerment to the list of forcible felonies.  Under the provisions of the bill, “an offender who commits the criminal offense of child endangerment that results in the death of a child or minor [must] serve 70 percent of a 50-year class “B” felony sentence.  Under current law, such an offender is sentenced to confinement for 50 years but is eligible for parole upon entering prison.”  Perhaps it seems logical to equate the sentence to the criminal act.  However, there are some religions that experience the death of child when the parents rely upon means to treat the child outside the medical community.  The tenets are deep and serious.  To harshly punish these particular parents for what they believe to be the child’s best interest, according to their religion, is an overreach.  JRC believes that just because a person is eligible for parole upon entering prison, the practice has never been as simple as the phrase suggests.

HF 2023 – This bill eliminates the crime of public intoxication and simulated public intoxication.  Rep. Mary Wolfe (D-Clinton), the bill’s sponsor, said that this crime is “the only crime in which we (Iowans) punish a state of being instead of an act.”  Our neighboring states of Nebraska, Minnesota, North Dakota, South Dakota, Illinois, Kansas, and Wisconsin do not have public intoxication statutes.  As mentioned in a subcommittee meeting of Feb. 11th, the offense of public intoxication is often a “tack-on” offense.  In other words, it is often one of many charges brought against a person surrounding one incident.  JRC “SUPPORTS” this effort to remove an archaic criminal matter.  It’s like creating the crime of being fat!

 

Selected links:

 

Senator Orrin Hatch (R-Utah) criticizes Senator Chuck Grassley (R-Iowa) in WSJ Letter-to-the-editor, and Grassley responds:  http://www.wsj.com/articles/feds-criminalize-things-that-arent-crimes-1454614019 The Wall Street Journal, FEB. 4, 2016

 

From The Marshall Project: “One of the more important subplots in the congressional drama over criminal justice reform centers on the Latin phrase “mens rea,” literally “a guilty mind.” Republicans want any reform bill to include language requiring the government to prove actual intent in order to win a criminal conviction. The Justice Department and some liberal reformers see this as a conservative trick to hobble enforcement of corporate crimes — it being harder to pin down the “intent” of a faceless corporation. But in an op-ed in The New York Times, Gideon Yaffe, a Yale law professor, makes the liberal case for mens rea reform — explaining how it can be harnessed to the advantage of the poor and minorities.Bill Keller

 

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UPCOMING EVENTS

The next program meeting of Iowa CURE will be February 21 (Sunday) at 2 p.m. at Trinity United Methodist Church, corner of 8th and College, 1548 8th St. in Des Moines.  Our speaker will be Dr. Jerome Greenfield, the newly appointed mental health director for the Iowa Department of Corrections.  He will speak about the work he is doing in his new position.  Dr. Greenfield practiced psychiatry in the Des Moines area for many years and is highly respected for his work.

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Iowa State Representative Helen Miller

Invites you to join her at the

Iowa Central Community College, BioScience Building

Fort Dodge, Iowa

 

Iowa Criminal Justice Summit 2016

 

Program begins at 9:00 am

Iowa Criminal Justice Summit Special Guest and Keynote Speaker Lamont Carey has an amazing story to tell about his life and experiences both then and now. Hearing his story is a testament to the Youth, Society and Communities of Today – giving hope, awareness and realness to the Criminal Justice System. His story is the core of the Summit, you don’t want to miss it.

Saturday, February 20th 9:00 a.m.

 

ICCC BioScience Health Auditorium.

 

Lamont is first on program – he will begin to speak at 9:15 a.m. Actor, Spokenword Artist, Motivational Speaker, Business Coach, Entrepreneur and Author…Mr. Lamont Carey.