Vol. 9 #1 January 22, 2018
The Pen Is Mightier Than the Sword
Last year, a Senate Subcommittee met to discuss Senate File 88, an “act relating to the use of a simulated firearm or simulated explosive when committing a robbery, the criminal offense of intimidation, or other crimes, and providing penalties.” It didn’t go anywhere. The bill was brought forward by the Iowa County Attorneys Association since robberies with a simulated gun have the same traumatic effect on a victim as does a real gun.
This year, a bill similar to SF 88 Senate Study Bill 3006 has been introduced and a subcommittee has met to discuss its merits. SSB 3006 moves the involvement of “simulated firearm” from the robbery section of the Code to the definition section of the criminal Code. This broad sweep of what constitutes a “simulated” firearm is ill-advised for the following reasons and continues to carry grave concerns about the potential effect of enactment.
A “simulated firearm” cannot be listed as a dangerous weapon because it is NOT a dangerous weapon. The definition of dangerous weapon is
any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed [and includes] any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being.
Iowa Code section 702.7 (2017)(Emphasis added.)
“The pen is mightier than the sword,” but you can’t list the pen as a dangerous weapon. Actually, you can. A pen, along with a simulated firearm, are already included in the definition of “Dangerous Weapon”.
Additionally, any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being, is a dangerous weapon.
Iowa Code section 702.7 (2017)(Emphasis added.)
Perhaps it’s a stretch to think that a pen or a simulated gun “is capable of inflicting death upon a human being”, but it’s not impossible. Federal case law acknowledges that an unworkable gun or an unloaded gun is a dangerous weapon (“a gun can cause harm when used as a bludgeon”), even though the Code definition does not necessarily include those devices. U.S. v. York, 830 F.2d 885, 891 (8th Cir. 1987). There is no need to expand the definition to cover every device. A vague definition of a simulated firearm is broad enough to cover an incident in which a person uses an exposed index finger with the thumb pointing up. It will include a paint gun, some cigarette lighters designed to look like pistols, and a water (squirt) gun.
From a practical point, if committing a crime with a real firearm or a simulated firearm carries the same penalty, why would a perpetrator settle for the simulated weapon?
The impact on our criminal justice system, particularly the potential increase in our prison population and future workloads of community-based corrections could be pushed beyond manageable limits. The fiscal impact statement on SF 88 contains a significant minority impact. SSB 3006 possibly could have an exacerbated impact on minorities.
Those who use simulated devices are already being convicted of offenses that carry significant sentences (i.e. State v. Tate, 885 NW2d. 220 (IA Ct. App. 2016)(Defendant was sentenced to 10 years for 2nd degree robbery when the jury found no gun was used, although defendant had lifted his shirt to imply he had a weapon.))
We oppose the bill on the arguments mentioned above, but we are in the process of developing some language that we intend to offer as an alternative. We understand the trauma a person experiences when being held up, whether the perpetrator has a weapon or not. Our solution will be to offer counseling to those affected by the incident.
Death Penalty Legislation
A bill to bring back the death penalty was introduced Thursday in the Iowa Senate. Senate Study Bill 3042 would allow the penalty of death for the first-degree murder of a peace officer. Justice Reform Consortium strongly opposes capital punishment. See the NOTICE below about Iowans Against the Death Penalty General Membership meeting on Feb. 8th.
House File 163 is a bill that establishes a new tier of sex offender registration. Essentially, it will require every sex offender to register for life. Under the bill’s provisions, if a sex offender is not currently on a lifetime registration, the sex offender is required to continue a limited registration upon completion of the offender’s requirements. The new requirement would have all sex offenders, even those that have completed their registration and other requirements, including those moving into Iowa from another state, to register with the sheriff. The registration would not be accessible to the public. Justice Reform Consortium believes this is more punitive than remedial, and therefore will not be able to stand up to a constitutional challenge.
The most recent authority on this matter is the United States Supreme Court decision of Smith v. Doe, 538 U.S. 84 (2003), written almost 15 years ago. The Court held that Alaska’s sex offender registry was not punitive, and therefore did not violate the Constitution’s Ex Post Facto clause.
However, things have changed.
“If the intention of the legislature was to impose punishment, that ends the inquiry [and the registry is unconstitutional]. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “`so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it `civil.'” Ibid. (quoting United States v. Ward, 448 U. S. 242, 248-249 (1980)).” Smith v. Doe, 538 U.S. 84, 92 (2003). Creating a new tier of offenders who must register is punitive, especially considering that new facts have been discovered in the past decade and a half.
“The [Alaska] [L]egislature found that “sex offenders pose a high risk of reoffending,” and identified “protecting the public from sex offenders” as the “primary governmental interest” of the law. 1994 Alaska Sess. Laws ch. 41, § 1.” Smith v. Doe, 538 U.S. 84, 93 (2003). That statement is no longer true.
The Bureau of Justice Statistics has found that a mere 5 percent of sex offenders are rearrested for another sex crime within 3 years of being released from prison. https://www.bjs.gov/content/pub/press/rsorp94pr.cfm Five percent is hardly a “high risk”. A challenge to this scheme today could invite the temptation of the Supreme Court to overturn the decision in Smith. At the time of Smith, very little was known about the recidivism rates of sex offenders. Justice Kennedy, who wrote the Smith v. Doe decision, had also written the Kansas v. Hendricks decision, which led to civil commitment laws, and based his information “on his own language from [the Hendricks decision]. It characterized the risk of a sex offender committing another sex crime as “frightening and high” — as high as 80 percent, Kennedy held.” https://psmag.com/news/whats-the-real-rate-of-sex-crime-recidivism Sex offenders who have been committed under Hendricks are violent sexual predators and have a mental abnormality or defect. Not every sex offender is a “sexually violent predator”; far from it.
It is the sexually violent predators in Iowa’s civil commitment unit in Cherokee that consist of the group of offenders in which Justice Kennedy referred, and not the bulk of sex offenders who must register under Iowa’s current registry system. “So how close to the truth is Kennedy’s “frightening and high” assertion? “There’s no empirical evidence to support that statement,  We have lots and lots of recidivism research over like 25 years … and all of the recidivism studies are remarkably consistent that the number of people re-arrested for a new sex crime is somewhere between 5 and 15 percent.”” Id.
If a Tier IV category is established through HF 163, the burden is on the state to defend the law’s intent that it remains a civil matter, rather than a matter that is punitive in nature. If the state fails in its arguments, flood gates open to continuing litigation of constitutional questions, such as: Ex post facto; cruel & unusual punishment, due process, and others.
JRC is watching closely the progress of this legislation.
Life after Prison: A New Guide for Iowans
Inside Out Reentry, with support from the Iowa Department of Corrections, is pleased to announce a new guide offering resources and services for those returning from incarceration.
- WHAT: A newly-created collaborative guide to reentry support resources across the state. This database provides contacts to non-department of corrections resources facilitating return to the community. The guide includes: substance abuse services, housing options, mental health resources, AA/NA, support groups and much more. The information has been made available at all nine Iowa correctional institutions (as of Dec. 15), in addition to the work release residential facilities. It is posted online at: http://www.insideoutreentry.com/ and will be updated every 6 months.
This guide was created by Inside Out Reentry Community with the help of Iowa correctional staff from several institutions. We invite everyone to help us supplement this information to make our service directory complete. Please contact us at: firstname.lastname@example.org to add information or make corrections.
Inside Out Reentry Community is a non-profit organization based in Johnson County that provides comprehensive reentry support for those returning to our community after incarceration. Inside Out opened its doors in January 2015 and assists returning citizens with employment, housing, connecting to services, peer support, mentoring, and more.
- WHY: The Iowa Department of Corrections estimates that 95% of current inmates will eventually be released to their communities. The moment of release represents a critical point in time that can make or break an individual’s successful reintegration into society. Our communities are better off when the women and men leaving prison find success in moving forward.
The Council of State Governments in a 2005 study states that ‘ideally, an individual in prison has worked on cultivating relationships with community-based organizations and support systems as part of a larger reentry plan.” By making these resources available before someone is released from prison, work release or jail, Iowa can foster connections with such organizations and support systems and thus, encourage successful reentry.
Besides making this database available in Iowa’s prisons and work release centers, we also hope to make this information available to anyone who needs support after serving time in jail.
- WHO BENEFITS: Anybody who is looking for support and assistance following incarceration. Family members and friends of those returning from incarceration. (see testimonial below)
Mike Cervantes – Director of Inside Out Reentry Community 319-621-6263 email@example.com
Catrina Carter – Director of Reentry and Treatment Services for Iowa DOC 515-725-5713 (office) 515-314-2645 (cell)
Cord Overton – Communications Director for Iowa DOC 515-725-5707 (office) firstname.lastname@example.org
Dec. 19, 2017
I wanted to express my gratitude to the staff and volunteers at Inside Out Reentry. I am from Des Moines and with my mandatory on a drug offense expiring on Jan. 20, 2018, I was recently run up for parole.
While incarcerated, I have involved myself in many groups, activities and inmate council to prepare myself to transition smoothly and successfully into society and the work force. All of these “inside” activities were beneficial for me, yet I was still lacking in community-based connections necessary for my release. Housing was an especially difficult task for me to complete. However, with your recent state-wide resource directory and guide, I was able to personally connect with the director of an organization in Des Moines who quickly accepted me into one of their houses. It completed my parole plan and my parole was granted on the 14th of December.
This new guide is a great resource for men and women facing the challenges of release. Thank you so much to Inside Out for sharing this resource with all the institutions across Iowa.
Iowans Against the Death Penalty will hold a general membership meeting at Northwest Community of Christ Church, 3003 62nd Street in Des Moines (3 blocks west of Merle Hay Rd. on Urbandale Ave.) on Thursday, February 8th at 6:30 pm.
Senate Study Bill 3042 was introduced on Thursday, January 18th. SSB 3042 is a bill for an act creating a capital murder offense by establishing the penalty of death for murder in the first degree of a peace officer.
SSB 3042 has been assigned to the subcommittee consisting of Senators Jason Schultz (R-Schleswig); Amy Sinclair (R- Allerton); and Rich Taylor (D- Mount Pleasant). No subcommittee meetings have been scheduled at this time.
Pod cast of Wednesday’s discussion on WHO on the death penalty: Should Iowa Reinstate The Death Penalty? (Jeff Angelo-Hour 1-1/17) https://whoradio.iheart.com/featured/jeff-angelo-on-the-radio/content/2018-01-17-should-iowa-reinstate-the-death-penalty-jeff-angelo-hour-1-117/#.WmEU4KGJ4EE.email
SAVE THE DATE!
IMPORTANT ANNOUNCEMENT: Mark your calendars for the evening of October 8th. The Iowa Coalition for Juvenile Justice (a focus group of Iowa CURE) is bringing Jeanne Bishop, author of the moving book, “Change of Heart, Justice, Mercy, and Making Peace with my Sister’s Killer”. (Tentative location is the court room of the Drake Law Center.)
Ms. Bishop’s sister, brother-in-law and their unborn child were brutally killed in their home 25 years ago. In her book she tells of her journey confronting and finally reconciling with the man who took their lives.
Brian Stevenson, Director of the Equal Justice Initiative and author of “Just Mercy” says, “This is an extraordinary witness for survivors of crime and all of us who seek a more compassionate thoughtful and responsible way to manage the tragic ways we hurt each other”
You won’t want to miss this opportunity to hear Jeanne Bishop and her inspiring story of healing and peace.
The January meeting of Iowa CURE will be held on January 28th (Sunday) at 2 p.m. at Trinity LA United Methodist Church (1548 8th Street) Our legislative advocates: Marty Ryan and Stephanie Fawkes-Lee will be with us to give us an up to date rundown on what is happening during this legislative session and how we can influence our legislators. Please plan to attend