JRC February 22 Newsletter

Vol. 6 #4 February 22, 2015

Risk Assessments for Sentencing?

Attorney General Eric Holder eloquently supported our position on the use of risk assessments in making sentencing determinations when he wrote[1]:

Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant’s history of criminal conduct.  They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.  Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant and the particular crime he or she commits.

We have adamantly opposed using risk assessments for sentencing for a number of years and for a growing number of reasons.

First, it can never be said often enough; no one should be sentenced on the probability of committing future crimes. As Sonja B. Starr, a professor of law at the University of Michigan stated, “As currently used, the practice is deeply unfair, and almost certainly unconstitutional.”

Our second concern is: Which risk assessment? There are a number of risk assessments and more are being developed. Risk assessments that are based on: educational level; employment record; your neighborhood; criminal family/spouse; criminal history of friends; constructive use of spare time; socioeconomic background, etc., have justifiably drawn criticism. Why should a person be sentenced on factors he or she has no control over? Supporters of sentencing people based on risk assessments believe that it will help address the disproportionate number of minorities being incarcerated. But Attorney General Holder fears that it “may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”

The third concern is training. Even if a risk assessment could be developed that did not include discriminatory factors, who and how would everyone involved be trained? Without proper training, there are serious quality control issues. Administers of the risk assessment instrument and the judges themselves would require training. Where would the funding for the training come from?

Our fourth concern is the breakdown of needed checks, balances and oversight between the three branches of government. A bill currently being introduced by the legislative branch would create law that gives the Iowa Department of Corrections (executive branch) the power to establish a “validated risk assessment” to be used by judges (judicial branch) for sentencing. We appreciate that this is being proposed with the best of intentions, but there is a clear conflict of interest for the Department of Corrections given the duty to monitor prison admittance.

Wanting to keep low risk offenders out of the correctional system is a worthy goal that we strongly support. Limited resources would be better spent providing quality services to address the needs of these defendants, whether it is meaningful treatment for substance abuse; therapy and/or medication for mental illness; or job training/education to lift people out of poverty. Addressing individual needs is a sounder approach over projected possible risk of future crime.

A Good Opinion On HF 161

The following is a contribution by Jim Nervig, an attorney with the West Des Moines law firm of Brick Gentry P.C.

A new bill, House File 161, has been introduced in the 2015 Iowa Legislature.   In my opinion, the Bill furthers the equal protection standards of the Iowa Constitutional and should be supported.

In Ames Rental Property Ass. v. City of Ames, 736 N.W.2d 255 (Iowa 2007), the Iowa Supreme Court upheld a discriminatory City of Ames regulation that allowed an unlimited number of persons related by blood or marriage to live together while limiting to three the number of unrelated persons in single-family zones, based on a determination that there was a legitimate governmental interest in providing quiet neighborhoods. Ames Rental Property Assn.  The Supreme Court’s opinion was divided, with four Justices joining the opinion and three Justices dissenting.  The case raised a very important equal protection question of whether government has the right to discriminate, as to zoning and housing regulations, in favor of individuals who are related by blood or marriage and those who are not.

HF 161 would eliminate the discrimination, by providing:

A city shall not, after January 1, 2016, adopt or enforce any regulation or restriction related to the occupancy of residential rental property that is based upon the existence of familial or nonfamilial relationships between the occupants of such rental property.

The Iowa Supreme Court has interpreted the Iowa Constitution’s equal protection clause to afford a higher level of protection than afforded under the U.S. Constitution.  Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004).  Under the Iowa Constitution, a classification based on an extreme degree of overinclusion or underinclusion cannot pass rational basis equal protection review.  Id.  In my opinion, the four-Justice majority erred in the Ames Rental decision.  Under the discriminatory provisions of the Ames zoning ordinance, four related persons are permitted to live in a house, while four unrelated persons are prohibited.  After the Varnum decision, it seems very clear to me that government has no rational basis for denying housing to similarly situated individuals based on whether or not they are married or blood relatives.  If there is any rational basis for prohibiting four unrelated persons from living together, then the same rational basis would apply equally to deny four related individuals the right to live together.  An ordinance that so discriminates is fatally underinclusive and in violation of Iowa equal protection.

The Varnum decision did not break new constitutional ground, but reaffirmed the original high standards of Thomas Jefferson and the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuant of Happiness.”  The Declaration of Independence, July 4, 1776.

“The equal rights of man, and the happiness of every individual, are now acknowledged to be the only legitimate objects of government.”  [emphasis added]  Thomas Jefferson to A. Coray, 1823, at 15:482, Memorial Edition, Lipscomb and Bergh, ed., 20 Vols, Washington, D.C., 1903-04.

When you check the list of lobbyist declarations on HF 161, you will note that Iowa cities are lined up in opposition.  This is no surprise.  Cities historically have argued that the Legislature should not interfere with their sacred home rule authority.  Home rule is well established, but it cannot override the rights of the individual citizen to be free from irrational governmental discrimination.  Cities have contended that there are legitimate reasons for discrimination against unrelated individuals.  One example is alleged problems raised by four or more poor immigrants, unrelated by marriage or blood, living together in a single house because they cannot afford to live separately.  Cities are concerned that such immigrants may drive separate cars to work, thereby creating traffic congestion in the neighborhood.  Of course, the same traffic congestion could be caused by more than four related individuals living in the same house.  There is absolutely no rational basis for such discrimination.  It is Wrong.  If cities are concerned about traffic problems and other issues that may come to exist by virtue of multiple occupants, then cities have the constitutional obligation to narrowly tailor their regulations to address the evils that they contend exist.

The Iowa Supreme Court lost its way on this issue.  The Legislature now is considering doing the right thing.  Our American way of life will only be enhanced by zealously protecting the rights of all of us to equal protection under the law.  Please consider the Bill, and please consider supporting the Bill.

Bills On The Move

The following consist of a small sample of bills that are moving, and which JRC is attempting to influence the passage or defeat. We will do our best to include reasons for our support or opposition as time and space permit.

House File 158 Against

A bill for an act enhancing the criminal penalty for an assault on an operator of a motor vehicle providing transit services as part of a public transit system, and providing penalties. (Formerly HSB 30) On House Calendar. 

SF 219 For

This bill makes small amounts of possession of marijuana (5 grams or fewer) a simple misdemeanor, compared with current law, which makes the same amount subject to a serious misdemeanor. [Simple misdemeanors are punishable by up to 30 days and jail and a fine of $65 to $625, or both; Serious misdemeanors are punishable by serving a sentence of up to one year in jail and a fine of $315 to $1,875, or both.] On Senate Calendar. A Fiscal Note (with Minority Impact Statement included) has been attached to this bill.

HF 161 For

A bill relating to the authority of cities to regulate and restrict the occupancy of residential rental property.  Passed out of committee. See article above – A Good Opinion On HF 161.

SSB 1185 Against

A study bill relating to the commission of a class “A” felony by a person under 18 years of age, providing penalties, and including effective date and applicability provisions.  Supposedly, this bill is intended to comply with Iowa Supreme Court decisions in State v. Lyle, State v. Null, State v. Pearson, and State v. Ragland; and the United State Supreme Court decisions of Miller v. Alabama, et. al. It goes far beyond these rulings and will pave a path back to the courts to decide the fate of juveniles. Please contact Senators Rob Hogg (D-Cedar Rapids), Wally Horn (D-Cedar Rapids), and Charles Schneider (R-West Des Moines) and tell them that there are grave concerns with this bill. It does not carry the intent of the Iowa Supreme Court in recent decisions on juvenile sentencing of class “A” felonies.

These are just a few of the bills on which we have been lobbying. There are several more, but the ones mentioned above are of particular interest.

If you would like an explanation of why we oppose or support a particular bill or legislation, contact us at info@iowappa.com and we will respond as soon as possible. We may include your concerns in the next newsletter, also.

From Within

Some Iowa inmates have begun writing to express their ideas, thoughts, concerns, etc. We are offering them an opportunity to submit an article to our newsletter on a trial basis. We are going to print one article per month, or per issue. All articles will be unedited by JRC. These inmates are tutored by Mike Cervantes of Cedar Rapids.

The opinions expressed in this article are the author’s own and do not reflect the view of Justice Reform Consortium. Comments may be submitted to the author by sending them to [insight@iowappa.com]

The Challenges

By Tim P.

What is most challenging about my stay at IMCC? One hears plenty of grumbling about the meals, but few know just how hard the dietary supervisors work to provide the best meal for the budget given. It was too bad that the donated cereal bars went moldy. They were tossed and that same day the dietary director found a special deal for 7,000 Danishes that could have been sold at Starbucks. Everyone can point to a meal that is not quite how mom used to fix it, but how many know we almost lost one of the most popular meals – chicken quarters? For several weeks the meat ordered did not come it. Then, when other institutions were looking to drop it from the menu because the price jumped from $.10 to $.46/pound (multiply by 1000, a little over 30 times a year and it is a lot of money), our director insisted on staying with the chicken. And who can complain about the special treats: fresh pineapple, green onions, 1,700 pounds of turkey and still to come – Chicken Cordon Bleu and blueberry cheesecake?

Others find a gripe with their roommates. Some only think of themselves. They don’t know the value of cleanliness or are loud. We can match them rude-for-rude and bring more tension to the room or we can take another approach. If something is really bothering us, we can talk to that person, but in the end we are left to realize the only person I can change is myself. Am I being respectful of others or am I being rude? Respect and kindness can become contagious.

Another frequent area of grumbling is all the injustice of the justice system. Many can tell stories of being let down by a lawyer, dumped on by a judge and abandoned by the DOC, a system which proclaims a lofty mission statement stating its goal, “To Advance Successful Offender Re-entry…” But who see any of that going on? In a recent Book Club book, Orange is the New Black , the following quote is found:

Our criminal justice system has no provision for restorative justice in which an offender confronts the damage they have don and tries to make it right to the people they have harmed. Instead our system of “corrections” is about arms length revenge and retribution. Then its overseers wonder why people leave prison more broken than when they went in.

After a while the system can begin to wear you down. You depend on the system to clothe you. You depend on the system to feed you. You depend on the system to entertain you. You depend on the system to provide you a job, whether you really have to work or not. Rather than grumbling, waiting for someone else to do everything for us, maybe the real challenge is to wake up to the situation we are in – to see the hurt we caused in the past and to begin anew today.

Do you struggle with anger and the desire to strike out at those around you? Then maybe AVP (Alternatives to Violence) is for you. It is a place to bond with others and through various activities learn new ways to view others and express yourself. Do you feel abandoned, cut off from the world? Tuesday night choir may interest you. Even if you are not the best singer, here you can learn about community, work toward a positive goal with those willing to stand by your side. Do you want to make a difference in someone’s life, but not know how? Maybe hospice is for you. Though it is not really about you, it is about being there for someone in their final hours. Do you struggle with sin, forgiveness, God and how you have lived your life? Every day the chapel has some event with volunteers coming in. There are also books, videos and music.   Rather than being held in prison by the challenges of life, may you find freedom to make a difference first in your life, then in the lives around you.

Selected links:

Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says: http://www.nytimes.com/2015/02/11/us/jails-have-become-warehouses-for-the-poor-ill-and-addicted-a-report-says.html?partner=rss&emc=rss&_r=0 TIMOTHY WILLIAMS New York Times. FEB. 11, 2015.

Where left meets right. The strange-bedfellows push for criminal-justice reform is real and important, but no assurance of success. TMP’s editor-in-chief Bill Keller ponders the left-right alliance. The Marshall Project

When was the last time you made a contribution to help fund the activities of JRC?

I want to help Justice Reform Consortium with its goal of working toward restorative justice.

 

Here is my contribution of $________________________________

Submit your subscription payment to:

 

Jean Basinger

Justice Reform Consortium

c/o Trinity United Methodist Church

P.O. Box 41005

Des Moines, IA 50311

 

Name: ___________________________________________________________

Address: ________________________________________________________

City: ____________________________State__________Zip_______________

 

UPCOMING EVENTS

 

MOBILIZING TO END MASS INCARCERATION: AN ACTION CONFERENCE

SATURDAY, MAY 2, 2015

8:30 AM until 4:00 PM

GERARD HALL, ALLEN COLLEGE OF NURSING

WATERLOO, IOWA

 

Program

8:30 AM          Sign in and coffee

9:00 AM          Keynote Address – Mr. David Liners

10:00 AM        Action Panel # 1 – Keeping people out of the prison system

11:30 AM        Lunch (vegetarian, vegan and gluten free options available.)

12:15 PM        Action Panel # 2 – Creating reasonable sentencing, parole and probation policies

1: 45 PM         Action Panel # 3 – Supporting and reintegrating those returning from prison

3:15 PM          Working together statewide- creating an action network.

4:00 PM          Conference ends

 

David Liners is the Executive Director of WISDOM, a Wisconsin network of faith based organizations, part of the international Gamaliel Foundation.   Under his leadership, the statewide network has grown from three to eleven diverse, interfaith organizations in Wisconsin. He helps develop new models and strategies for a variety of projects. He holds a BA from Marquette University, a Masters of Divinity from the Catholic Theological Union in Chicago, and a Doctor of Ministry from St. Mary of the Lake University. He lives in Milwaukee, Wisconsin.

WISDOM

WISDOM aims to deepen relationships among faith based communities to empower people to address the root causes of social injustice. It encompasses 11 organizations across the state but maintains the grassroots basis for its decision-making. It is able to mobilize large numbers of people in a relatively short time around a defined and disciplined method. It has launched the 11×15 movement, which takes a comprehensive approach to reducing the prison population in Wisconsin through policy change.

“In my experience, people who have been incarcerated rarely have difficulty identifying the parallels between.. [the old Jim Crow system].. and [mass incarceration].

Once they are released, they are often denied the right to vote, excluded from juries, and relegated to a racially subordinated existence. Through a web of laws, regulations, and informal rules…powerfully reinforced by social stigma, they are confined to the margins of mainstream society and denied access to the mainstream economy.

They are legally denied the ability to obtain employment, housing, and public benefits – much as African Americans were once force into a segregated, second class citizenship by Jim Crow.”

Michelle Alexander, The New Jim Crow: Mass Incarceration in an Age of Colorblindness

SPONSORS

War on Drugs Task Force of Cedar Valley Citizens for Undoing Racism

Justice Reform Consortium of Iowa

Interfaith Alliance of Iowa

Iowa Unitarian Universalist Witness and Advocacy Network

Waterloo Commission on Human Rights

Registration Form

Name ________________________________

Address _________________________

________________________________

E-mail ___________________________

Phone ___________________________

Do you represent an organization? ________________________________

Registration Fee

$20 if submitted prior to April 15, 2015

$25 if submitted after April 15, 2015

______Scholarship requested (must be a person with limited resources.)

Checks payable to: Waterloo Commission on Human Rights

Mail registration to:     Waterloo Commission on Human Rights,

620 Mulberry St.

Waterloo, IA 50703.

 

For further information contact:

allen.hays@uni.edu

 

Voices to be Heard is a support group for families and children of an incarcerated loved one. The group gathers to support and comfort those who know too well the grief that comes to those left behind when someone they love is incarcerated. The group meets on the first and third Tuesdays of the month at Wesley United Methodist Church (800 East 12th St. in Des Moines) from 5:30 – 7:00 p.m. The group brings in speakers, performs outreach, provide support groups and leadership classes. It is a good idea to contact Melissa ahead of time because the group provides dinner and a head count is preferred. Contact Melissa at 515/229-2645 for more information.

The next Friends of Iowa Women Prisoners meeting is at noon on Tues., March 17th at Wesley United Methodist Church, 800 East 12th.

MISSION:  To bring together and inform individuals and groups concerned about women in the Iowa correctional system and to act on their behalf.

FIWP Mailing Address:  Post Office Box 71272, Clive, IA  50325

UPCOMING MEETINGS & PRESENTERS

Our March meeting will focus on Re-entry.  Presenters will be the Rev. Lee Schott sharing the Reentry program of Woman at the Well and Kathy Culbertson sharing the Reentry program of ICIW.

Bring your lunch. The place and time are consistent throughout the year. The meetings are always held on the third Tuesday of the month, and always held from noon to 1:00 pm at Wesley United Methodist Church located at 800 East 12th Street in Des Moines. The location is a block west of East High School. Please contact Vi for more information.

 

 

 

Justice Reform Consortium member organizations: Iowa CURE & Iowa Coalition 4 Juvenile Justice; Friends of Iowa Women Prisoners; Trinity United Methodist Church; Methodist Federation for Social Action; Voices to be Heard; ACLU of Iowa; Social Action Committee, Des Moines Presbytery; Des Moines Chapter of WILPF; American Friends Service Committee; Plymouth Congregational Church, Board of Christian Social Action; Iowa Annual Conference, UMC; Iowa NOW and Des Moines NOW; National Association of Social Workers; Beacon of Life; Citizens for Undoing Racism-War on Drugs Task Force; Iowa-Nebraska Chapter NAACP; and Urban Dreams.

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[1] Attorney General Eric Holder Speaks at the National Association of Criminal Defense Lawyers 57th Annual Meeting and 13th State Criminal Justice Network Conference: http://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-national-association-criminal-defense-lawyers-57th and also in a letter to the United States Sentencing Commission. http://www.nytimes.com/2014/08/11/opinion/sentencing-by-the-numbers.html?_r=0

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