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.



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


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.

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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.


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.

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JRC June 2016 Newsletter

Vindication #1

At the end of May, the Iowa Supreme Court shot down a law that was so new it didn’t have the opportunity to be printed in the Iowa Code.  In State v. Sweet the Court ruled that sentencing a juvenile to life without the possibility of parole is categorically unconstitutional.

The law that was struck down was a controversial piece of legislation that passed both chambers and was signed into law by the governor in 2015.  The legislation allowed a court to sentence a juvenile defendant to life without the possibility of parole.  The Iowa County Attorneys Association, the Iowa Bar Association, and the Iowa Attorney General were among those who suggested the legislation would be constitutional, and they pushed for its passage.  The floor manager in the Senate, Senator Rob Hogg (D-Cedar Rapids), proclaimed during debate:  “I think this bill is constitutional.”  Justice Reform Consortium (JRC) was one of those groups that pled with legislators to take a different approach.

During a subcommittee meeting last year, Rita Bettis, ACLU of Iowa Legal Director, and Gordy Allen, former ACLU General Counsel, Deputy Attorney General, and Drake Law Professor, both of whom were representing the coalition in which JRC was involved, were asked by the subcommittee chair, Senator Rob Hogg (D-Cedar Rapids), to develop an amendment that would survive a constitutional challenge.  Over a matter of a couple of days, the two drafted language that would have done just that.  Their efforts were ignored and an alternative amendment, written by a former prosecutor with the Attorney General’s office – Elisabeth Reynoldson – and pushed by the Iowa Bar Association, was considered in lieu thereof.

In a statement from the ACLU of Iowa, dated March 15, 2015, Bettis wrote:

We do not support even the remote and rare possibility of the imposition of a life sentence without the possibility of parole for juvenile offenders, and believe that the Courts will rule that way as well in the future under the existing analysis, because children are both less culpable and more capable of rehabilitation than adults. A truly forward thinking bill that incorporates the reasoning of the Courts in the governing cases [U.S. Supreme Court cases Miller v. Alabama, Graham v. Florida and Iowa Supreme Court cases, State v. Ragland, State v. Pearson, State v. Null, and State v. Lyle] would provide a meaningful opportunity to demonstrate rehabilitation and release for all juvenile offenders, meaning life with the possibility of parole would be the maximum available sentence.

Although the statement was visionary, based upon the Court’s ultimate decision in Sweet, it was ignored.  A fiscal note was not attached to SF 448.

For two years, all we heard is that judges wanted some guidance in sentencing youth who were convicted of 1st degree murder.  We insisted on a reasonable approach that took into consideration all the state and federal lawsuits that have been decided on the matter.  What happened?  Prosecutors and judges blew it.  As an option, life without the possibility of parole became the norm, not the exception.  How often was this matter going to have to go back up to the Iowa Supreme Court before hard-nosed prosecutors and intimidated judges would understand the meaning of “cruel and unusual punishment”?  The holding in Miller v. Alabama is clear:

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard­less of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual pun­ishment.

Miller v. Alabama, 567 U. S. ____ (2012) (Page 27).

The law that passed did not identify which criteria were mitigating and which were aggravating circumstances.  To make matters worse, they were interspersed within the law, leaving to the imagination whether an event in a juvenile’s life was a mitigating or aggravating factor.  As we argued during the legislative process, lawmakers should look at the process required in death penalty cases to understand the meaning of this process.  It was ignored.  Justice Appel, who wrote the majority opinion, relied heavily upon case law derived from capital opinions.

Justice Mansfield, in his dissent, references the Iowa Legislature’s overwhelming support for the legislation passed in 2015.  He didn’t mention that the legislation passed out of the Senate Judiciary Committee “without recommendation”.  The large margins between the “aye” votes and the “nay” votes is based more on fear of voting against a bill that may be considered to be “soft on crime” than it is to stand up for the Iowa and U.S. Constitutions.

Justice Wiggins’ bravely-worded concurrence in the Sweet case should put an end to the unrealistic claims of those who believe murderers will be let out of prison as soon as they get there.

The dissent contends our decision today means the parole board will release every juvenile from prison at some point in the future. That contention is nothing more than fear-mongering.

But fear-mongering is politically easy.  To listen to most politicians, you want to think that sentencing reform is all the rage.  That’s not necessarily true.  The Iowa Supreme Court has the sense and ability to lead Iowa into a new era of using a rational thought process in our sentencing schemes.  Many legislators are lagging behind.

Senate File 448, a bill “relating to the commission of a class “A” felony by a person under eighteen years of age”, passed the Iowa Senate 47-3.  The same three legislators who voted against the bill in committee voted against it on the floor.  Again, we wish to thank Senators Rich Taylor (D-Mt. Pleasant), Janet Petersen (D-Des Moines), and Tony Bisignano (D-Des Moines) for their opposition to SF 448. Thank you!

In the House, the following courageous representatives voted against this bill:

Ako Abdul-Samad (D-Des Moines); Marti Anderson (D-Des Moines); Liz Bennett (D-Cedar Rapids);  Deborah Berry (D-Waterloo);  Abby Finkenauer (D-Dubuque);  Ruth Ann Gaines (D-Des Moines); Bruce Hunter (D-Des Moines); Dave Jacoby (D-Coralville); Vicki Lensing (D-Iowa City); Mary Mascher (D-Iowa City); Jo Oldson (D-Des Moines); Rick Olson (D-Des Moines); Kirsten Running-Marquardt (D-Cedar Rapids); Art Staed (D-Cedar Rapids); Todd Taylor (D-Cedar Rapids);  Phyllis Thede (D-Bettendorf); Cindy Winckler (D-Davenport); and Mary Lynn Wolfe (D-Clinton).

Thank you to the 18 representatives above who listened to us and our message that SF 448 was a constitutional challenge in the making.

We hate to say, “We told you so”, but we did.


Vindication #2

For too long, we have heard about how risk assessments will save money by placing only those people in prison who are most likely to recidivate.  That’s not the way to sentence criminals.  Further, we have alluded to the possibility that sentencing defendants based upon risk assessments will eventually lead to larger discrepancies in the number of minority to non-minority ratios of Iowans incarcerated.

ProPublica.com, “an independent, non-profit newsroom that produces investigative journalism in the public interest”, asked The Sentencing Commission for results of sentencing based upon these assessments.  The Commission had not launched a study, so ProPublica.com conducted one of its own.  The results are not surprising to us.

  • Black defendants were often predicted to be at a higher risk of recidivism than they actually were. Our analysis found that black defendants who did not recidivate over a two-year period were nearly twice as likely to be misclassified as higher risk compared to their white counterparts (45 percent vs. 23 percent).
  • White defendants were often predicted to be less risky than they were. Our analysis found that white defendants who re-offended within the next two years were mistakenly labeled low risk almost twice as often as black re-offenders (48 percent vs. 28 percent).
  • The analysis also showed that even when controlling for prior crimes, future recidivism, age, and gender, black defendants were 45 percent more likely to be assigned higher risk scores than white defendants.
  • Black defendants were also twice as likely as white defendants to be misclassified as being a higher risk of violent recidivism. And white violent recidivists were 63 percent more likely to have been misclassified as a low risk of violent recidivism, compared with black violent recidivists.
  • The violent recidivism analysis also showed that even when controlling for prior crimes, future recidivism, age, and gender, black defendants were 77 percent more likely to be assigned higher risk scores than white defendants.

Read the article here.

Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.


The “sentencing reform bill” referred to in the ProPublica article is the legislation U.S. Senator Chuck Grassley is touting as an historic nonpartisan effort to “addresses legitimate over-incarceration concerns while targeting violent criminals and masterminds in the drug trade.”  http://www.grassley.senate.gov/news/news-releases/senators-introduce-landmark-bipartisan-sentencing-reform-and-corrections-act-2015   This bill has problems other than the risk assessments, which we hope to detail in future issues.

This past session, Iowa legislators squeezed a couple of risk assessment applications into law through a few end-of-the-session bills.  Like the federal law, an important aspect is missing – overview and analysis.  Is it working the way it was designed?

The Polk County Criminal Justice Coordinating Council met last week.  On the agenda was a risk assessment update.  It appears as though the Fifth Judicial District Correctional Services Department [CBC] is looking into using risk assessments at the pre-trial level.  A four step process for the CBC to receive funding from the Justice System Partners includes:

  1. Site Assessment
  2. A Formal Report
  3. A Memorandum of Understanding with the Foundation (Laura & John Arnold Foundation)
  4. Implementation

Implementation seems to be the final step in most of these concepts.  Follow-up and project analysis may be a hidden part of the overall process, but we believe it must be identified upfront.  It is our concern that any evaluation should not be conducted by the same entity validating the assessments.  We go a step further and recommend that an evaluation and assessment of the program be conducted by an independent third party with no apparent conflict.

Oh, an observation.   If polygraph results are not admitted as evidence in criminal cases because it “measures a person’s biological processes to determine if they are experiencing a physiological event, such as an increase in blood pressure or heart rate”, shouldn’t courts find that assessments are inadmissible in the sentencing process because they lack the capacity to detect the reality of future events?

The Bottom Line:  Risk assessments are biased against blacks.

We hate to say, “We told you so”, but we did.

JRC’s Legislative Agenda for 2016

Report is coming soon.