1st JRC Newsletter of 2018

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.

 Lifetime Registration

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.

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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:  insideoutreentry@gmail.com 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)

Contacts

Mike Cervantes  – Director of Inside Out Reentry Community  319-621-6263  insideoutreentry@gmail.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)  cord.overton@iowa.gov

Testimonial:

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.

Tom Schilling

IMCC/Oakdale

 

UPCOMING EVENTS

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

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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.

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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

Justice Reform Consortium Newsletter 12-8-16

Vol. 7 #13 December 8, 2016

Death Penalty In Iowa?

Two decades ago, Iowa faced the possibility of reinstating capital punishment. It didn’t happen. 1995 was the height of the pendelum. New York reinstated the death penalty the same year it was defeated in Iowa. A year previous, Kansas had adopted the crime of capital murder.

Since the Iowa Legislature defeated House File 2 in 1995, several states have abolished the antiquated penalty in favor of life without the possibility of parole – Iowa’s default since 1964. A few other states have an haitus on executions because of court orders or moratoriums in place by governors.

On Tuesday, November 29, the Supreme Court of the United States heard arguments in a case, Moore v. Texas, in which the defendant Moore is facing the death penalty in Texas three and one-half decades after being sentenced to death. However, the matter of whether 35 years between sentencing and execution violates the Eighth Amendment prohibition against cruel and unusual punishment is not the argument the court will hear. You see, Moore is intelletually disabled – or is he? Texas says he is not.

Lawyers for inmate Bobby James Moore tell the justices that Moore failed first grade twice, but was still advanced to the next grade so that he wouldn’t be significantly older than the other students in his year. When he was 13, they add, he still “lacked basic understanding of the days of the week, the months of the year, the seasons, telling time, the standards of measure, and the principle that subtraction is the reverse of addition.” And, to make matters worse, Moore “also suffered a debilitating head injury during Texas’s schoolhouse integration battles”: He was “hit in the head with a chain and a brick as he tried to make his way to the bus.”

In 1980, when Moore was 20, he and two other men robbed a supermarket. One of the store’s employees was shot and killed during the robbery; Moore was convicted of the shooting and sentenced to death. Over 30 years later, Moore was again sentenced to death, but a state trial court determined, after a two-day hearing, that Moore is intellectually disabled and cannot be executed.

Posted in SCOTUSblog, November 22, 2016 – http://www.scotusblog.com/2016/11/argument-preview-court-returns-again-to-the-death-penalty-and-the-intellectually-disabled/#more-248775 Amy Howe Reporter and Independent Contractor

The legal question is whether “it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.”

It should be embarrassing to all of us that Texas prosecutors believe that a man, who at the age of 13 could not tell the difference between seasons, has the mental capacity to understand the nature of his crimes, or the consequences therein.

Here’s the really strange part:

[T]he Texas Criminal Court of Appeals went with a fictional novel [Of Mice and Men by John Steinbeck) over science and medicine to measure Bobby’s severe mental limitations. The justices heard a vast body of evidence demonstrating these limitations, which meet the widely accepted scientific standards for defining intellectual disability. Then they rejected it all according to seven wildly unscientific factors for measuring intellectual disability, drawn in large part from the fictional character Lennie Small. Bobby was no Lennie, they concluded, ruling that his disability wasn’t extreme enough to exempt him from the death penalty.

Salon Thursday, Apr 21, 2016.  Texas is using “Of Mice and Men” to justify executing this man. Seriously. Anna Arceneauxhttp://www.salon.com/2016/04/21/texas_is_using_of_mice_and_men_to_justify_executing_this_man_seriously/

During oral arguments on Tuesday, Justice Sonia Sotomayor “read a lengthy list of examples that she regarded as demonstrating Moore’s intellectual disability, including eating from garbage cans. Although Moore would get sick after doing so, she pointed out, he would then turn around and do it again – indicating that he could not learn from his mistakes.”  Amy Howe, Argument analysis: Texas inmate seems likely to prevail in death-row disability challenge, SCOTUSblog (Nov. 29, 2016, 1:59 PM), http://www.scotusblog.com/2016/11/argument-analysis-texas-inmate-seems-likely-to-prevail-in-death-row-disability-challenge/

Some people in Iowa would like to see Iowa adopt the death penalty for certain heinous crimes committed in this state.  Recently, Governor Terry E. Branstad has said that the death penalty is “not a panacea” for murder.  He’s right.  Capital punishment is complex.  Because of its complexity, the integrity of a state’s criminal justice system is at stake.  Iowans already know better than to attempt the execution of a mentally disabled person.  Or, at least, we hope Iowans know.

Iowa cannot afford capital punishment.  Iowans cannot afford its expense; Iowans cannot afford its discriminatory practice; Iowans cannot afford to execute an innocent person; Iowans cannot afford to execute a mentally disabled person. Iowa cannot afford the death penalty!

Join Justice Reform Consortium and Iowans Against the Death Penalty on Monday evening, December 12, in keeping Iowa one of 19 states without a statute allowing the use of capital punishment.

IOWANS AGAINST THE DEATH PENALTY

WILL MEET ON MONDAY, DECEMBER 12, 2016 AT HOLY TRINITY CATHOLIC SCHOOL (2926 BEAVER AVE., DES MOINES) AT 6:30 PM.

People should use the east door of the school building and will be directed from there.

JRC Annual Meeting

On October 23, 2016, organizations that make up Justice Reform Consortium attended the annual meeting at Valley Methodist Church in West Des Moines. Deb Theeler and Gordy Allen were honored by JRC for their work, not only over the past year, but for the years and years of dedicated service to those who are incarcerated and re-entrying society. After acknowledging Deb and Gordy, attendees were treated to this year’s speaker, Gary Dickey, a Des Moines attorney who drafted Executive Order #42 when he was Governor Vilsack’s legal counsel.

YouTube videos of the events can be found at:

Deb Theeler video – Click here

Gody Allen video – Click here

Gary Dickey address, Part I – Click here

Gary Dickey address, Part II – Click here

News from the Iowa Legislative Service Agency – Fiscal Division

GOVERNOR’S BUDGET HEARING – DEPARTMENT OF CORRECTIONS

On November 22, 2016, Governor Terry Branstad held a budget hearing for the Department of Corrections (DOC). DOC Director Jerry Bartruff presented the Department’s FY 2018 and FY 2019 funding requests, stating that the Department’s budget will remain at status quo at an appropriation level of $385.1 million.

Director Bartruff stressed the importance of lowering the recidivism rate in controlling costs. Apprenticeship programs within the prisons help to reduce recidivism by giving inmates employable job skills upon their release. The DOC is also trying to use resources more efficiently, and the move of sex offenders from the Mount Pleasant Correctional Facility to the Newton Correctional Facility is an example of that effort. Increasing medical and county confinement costs are two areas that were cited by Director Bartruff as concerns. A Lean project addressing county confinement costs was conducted, and changes in the processes for parole violation revocations are being enacted to decrease inefficiencies.

Governor Branstad inquired about the Iowa State Penitentiary (ISP) at Fort Madison. Director Bartruff stated that some of the problems they have experienced with the new facility were anticipated. The geothermal and ventilation issues are still being addressed, as are some operational issues. Critical incidents have decreased in the new facility, and the staff is accepting the direct supervision model. Discussions regarding how to utilize the old ISP facility are ongoing.

STAFF CONTACTS: Alice Wisner (515)281-6764 alice.wisner@legis.iowa.gov Laura Book (515)725-0509 laura.book@legis.iowa.gov

Selected links:

Mothers In Prison.  http://www.nytimes.com/2016/11/25/opinion/sunday/mothers-in-prison.html?smprod=nytcore-iphone&smid=nytcore-iphone-share By NICHOLAS KRISTOF NOV. 25, 2016. New York Times.

Please consider a year-end contribution to help fund the activities of Justice Reform Consortium

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Submit your subscription payment to:

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Justice Reform Consortium

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UPCOMING EVENTS

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.

Voices to be Heard has formed also in Cedar Rapids.  Please contact:  Voices to be Heard, Voices.Heard@yahoo.com. Sue Hutchins, 252 S. 22nd St., Marion, IA 52302.

The next Friends of Iowa Women Prisoners meeting is at noon on Tues., December 20th 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.

FRIENDS OF IOWA WOMEN PRISONERS

PO Box 71272, Clive, IA  50325

email:  fiwp2011@gmail.com

website:  friendsofiowawomenprisoners.org

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

This newsletter published by: Fawkes-Lee & Ryan, Public Policy Advocates http://iowappa.com/

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