First JRC Newsletter of 2017

Vol. 8 #1 January 8, 2017

2017 Legislature

Justice Reform Consortium identified its priorities for the 2017 Legislative Session before the November election.  It’s always been this way.  The election has rarely made a difference on our priorities, and we didn’t see this year as anything different.  Reviewing our priorities and watch list, we continue to see the glass as half-full, just as it has been in the past.

Below is a categorized list of issues that JRC intends to face during the 2017 session of the Eighty-Seventh Iowa General Assembly.  Some may be pursued by legislators in majority; others will fall by the wayside or get caught up in the Legislature’s funnel process.  Nonetheless, JRC is preparing for all issues listed below.

CRIMINAL JUSTICE

MINORITY IMPACTS

Transit Assault:  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.  A Minority Impact Statement (within a Fiscal Note from a previous year) claims:

The minority impact cannot be estimated but may be significant. Approximately 25.4% of offenders convicted under this Bill may be minorities. This Bill shifts a percentage of serious misdemeanor convictions to aggravated misdemeanor convictions, and a percentage of aggravated misdemeanor convictions to Class D forcible felony convictions. Enhanced penalties will result in an increased number of minority offenders under current law.

JRC OPPOSED this bill in the past, and has strongly opposed the concept for many years.  We anticipate the bill will be introduced again this year.  We will continue to oppose any efforts to make this concept law (See Occupational Assault below under ENHANCED PENALTIES).

Risk Assessments; A trend in sentencing is to look at an offender’s past to determine if the offender is a risk to reoffend.  The preferred sentencing structure is to sentence the defendant based upon the crime for which the defendant committed, not based upon what a person may or may not do at some future date.  JRC OPPOSED in the past.  Requires that a validated risk assessment be part of a presentence investigative report.  JRC believes that risk assessments are biased against people of color, and an in-depth article with factual data proves it:  https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing

We believe several government entities will try to expand the use of risk assessments during the 2017 session.

ENHANCED PENALTIES

Interlock devices: “Current law allows a first-time operating-while-intoxicated (OWI) offender to operate a motor vehicle with a temporary restricted driver’s license, but without an ignition interlock device, where, during the offense, the offender’s alcohol concentration was .10 or below and the offender did not cause an accident. An effort by Rep. Sandy Salmon eliminates this provision. A bill in the past provides “that a first-time OWI offender with a temporary restricted driver’s license shall install an ignition interlock device in the offender’s vehicle, whether the offender’s driver’s license revocation was the result of sentencing, deferred judgment, or administrative revocation, and regardless of the offender’s alcohol concentration at the time of the offense.”  Explanation of past bill.

The requirement of installing an ignition interlock device is expensive and restrictive.  In that way, it is considered by JRC to be a penalty enhancement.  JRC opposes penalty enhancements when there is a lack of empirical evidence that proves the increase in a penalty is warranted.  In this matter, the impetus for the bill was based on emotion.  During the previous General Assembly, a subcommittee meeting was held on the bill where a legislator showed a picture of a child who was killed by an impaired driver.  There were not enough subcommittee members willing to sign the bill for it to move out of subcommittee and be placed before the House Judicial Committee for its consideration.

JRC OPPOSED this bill in the past, and Rep. Salmon has written in her newsletter that she will introduce it again this year.

Death Penalty:  Creating the penalty of death for the commission of the multiple offense of murder in the first degree, kidnapping, and sexual abuse against the same minor, providing a penalty.  This bill is reinstating the death penalty in Iowa.  JRC has always OPPOSED.  We expect a Death Penalty bill to be introduced in response to police killings throughout the country.

Occupational Assault:  Each year, a bill is introduced to enhance the penalty for assault against a particular occupation.  For instance, the Transit Assault mentioned earlier.  Many of these bills are “special interest” constituent bills relating to sports officials, bus drivers, etc.  JRC has always OPPOSED these “Animal Farm” bills.

First, these types of bills are always afflicted with the accompanying words “protected”, “protections”, or “protects”.  This bill and others like it protect no one.  If an athlete or spectator is going to assault the official, the act will be committed regardless of the law.  This assumption that a law will protect a person against an assault is pure conjecture.

In the past 20 years, the list of occupations that are referenced in Section 708.3A has grown exponentially.  Before another occupation is added to the list of those already inducted into the piecemealed section, a study needs to be completed to discover the effect of those inclusions.  How many parole board employees and officials have been assaulted since parole board member or employee was added?  And how may parole board employees or officials were assaulted in the same amount of time before the position was added to the list of so-called protected occupations?  Has the inclusion of employees of the “Department of Revenue” and “Department of Human Services” decreased the assaults upon these employees?  Researching these questions, and similar inquiries will disclose the effectiveness of these additions, and will provide insight into whether the entire section should be maintained, enhanced, or discontinued.

How many people charged with violations of Section 708.3A, the predecessor to proposed Section 708.2D, have actually been convicted of the crime; and how many have pled down to simple assault?  There are too many questions that need answered before advancing this legislation.

Second, this legislation epitomizes the vanishing promise of equality related to us in George Orwell’s “Animal Farm”.

Equality is a relationship between man and man. . .. In an equal society, there is no division of classes, wealth or power. This was the predominant goal of the Russian Revolution as well as the animal revolution in the story Animal Farms (sic). The thought of having an equal society is admirable, though it’s only a fantasy. In the story Animal Farms (sic), 7 commandments were established soon after the fleeing of Mr. Jones, with the 7th- all animals are equal, being the most important. Later on, bit by bit, the 7 commandments were soon deformed, and the equality which the commandments promised and protected perished.

http://apeliterature.weebly.com/animal-farm—george-orwell-equality.html

Adding certain occupations to a Code section that has yet to prove anything beyond Orwell’s prediction that everyone is equal, but some people are more equal than others, will lead to other members of certain other occupations seeking the same fantasy – this law will protect them.  Eventually, most occupations will be included in this law, and it will become a dividing line between the haves and the have-nots.  The result of years and years of moving other occupations into this Code section will have a name.  It will be called totalitarian control.

Blue Lives Matter:  JRC believes that everything in this nationwide measure is currently in Iowa Code.  We do expect this issue to be introduced and to move through the process.  We will look at the legislation closely to see if it is repetitious or necessary.

So-called “Emmalee’s Law” – modifying hit-and-run laws.  This anticipated legislation is the result of an incident that happened in Ames.  A student was struck by a bus and the driver did not come forward with information, immediately.  JRC will likely OPPOSE.

SENTENCING REFORM

Mandatory Minimums – Justice Reform Consortium has always OPPOSED the creation and expansion of more mandatory minimum sentences.  The elimination or reduction of mandatory minimum statutes must be taken seriously.  Often, reducing the sentence of one crime leads to the expansion or creation of a new law.  JRC will monitor carefully.

CRIME/PUNISHMENT

CO/Inmate Relationships:  Bills relating to the criminal elements and penalties for the commission of sexual misconduct with offenders and juveniles, and including effective date provisions.  JRC SUPPORTED, and actually requested this bill last year.  This legislation was a priority issue for JRC.  It is one of those times the JRC supports the enhancement of a criminal penalty.  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. 

 It may be difficult to think of a prisoner as a victim, but there is no such thing as consensual sex in a correctional setting.

It is important to note that consent is never a legal defense for corrections staff who engage in sexual acts with inmates. According to federal law, all sexual relations between staff and inmates are considered abuse. Even if a sexual act would have been considered consensual if it occurred outside of a prison, by statute it is criminal sexual abuse when it occurs inside a prison. See 18 U.S.C. § 2243 (c).

https://oig.justice.gov/special/0504/

Iowa’s law prohibiting sex between a person in a position of authority and a person who is incarcerated or on parole or probation is weak.

Sexual misconduct by prison and jail employees, vendors, volunteers, etc. “compromises facility security and creates work environments that are negative for both staff and inmates.  Allegations are disquieting and divisive for employees and the public.”  Policy Development Guide for Sheriffs and Jail Administrators.  August, 2002.   https://s3.amazonaws.com/static.nicic.gov/Library/017925.pdf

Section 709.16 addresses prohibition and the criminal penalty of sexual misconduct with an offender.  In Iowa, that penalty is an aggravated misdemeanor.  In most other states, this penalty is a felony[1].  Increasing the penalty to a class “D” felony will align Iowa with the majority of states and should prove to be an effective deterrent[2].

The bill also enhances the penalty from an aggravated misdemeanor to a class “D” felony in a juvenile placement facility.

The punishment should fit the crime, and in this case, enhancing the penalty is appropriate.

DUE PROCESS

Home Occupancy:  Restricting authority of cities to regulate and restrict the occupancy of residential rental property.  Currently, several cities in Iowa have ordinances that restrict how many unrelated people can live in a one-family dwelling. This bill would prohibit such ordinances. JRC SUPPORTS this legislation because many people released from prison need a safe place to live. Ordinances that prohibit habitation based upon kinship are outdated and discriminatory. After all, why should the [local] government know “who” lives in your home and how they are or are not related to each other?  JRC has knowledge of this bill being introduced again, most likely with different language

Tax Collecting: An Act relating to the vehicle registration duties of county treasurers.  JRC OPPOSED this legislation over the past 2-3 years.  This bill allows county treasurers to collect a fee of $5 when collecting delinquent parking fines for a city or county.  The delinquent fines must be paid before issuing a vehicle registration.  This is part of the treasurers’ job and should not be an added tax for citizens.  Some counties are refusing to collect if they do not receive the $5 fee assessed to violators.

Interpreters and Translators:  An Act relating to interpreters for persons who are limited English proficient, deaf, deaf-blind, or hard-of-hearing in certain legal proceedings and court-ordered programs.  Currently, Iowa is not in compliance with federal law.  JRC SUPPORTED every year the courts have tried to move this.  We are not aware of the courts trying again, but if they do, we will be their ally.

24/7 Monitoring:  Certain counties in Iowa want a bill for an act providing for the establishment of county chemical substance abuse monitoring pilot programs and modifying temporary restricted license eligibility requirements for operating-while-intoxicated offenders.  This is known as the 24/7 monitoring program.  JRC has OPPOSED this legislation.  The Des Moines Register is lobbying the issue through articles and editorials.  JRC has serious concerns about the program and its selective use.

Risk Assessments:  An Act relating to domestic abuse and other offenses involving a domestic relationship, and providing penalties.  JRC OPPOSED this legislation in 2016.  The penalty relies heavily upon risk assessments in sentencing.  JRC believes that risk assessment usage in the sentencing process contains grave constitutional violations.

EQUALITY

Racial Profiling:  Legislation relating to law enforcement profiling by standardizing the collection and centralizing the compilation and reporting of officer stop and complaint data, providing for officer training, creating a community policing advisory board, providing for penalties and remedies, and including effective date provisions.  JRC SUPPORTED the bill requested by the NAACP, which was introduced in 2016.  We will support future attempts by the NAACP to advance this legislation.

Jury Lists:  Legislation requiring the master list for juror service to be updated using an electronic data processing system annually and eliminating jury commissions.  This was an issue that was recommended by the Governor’s Working Group on Justice Policy Reform.  JRC SUPPORTED the bill introduced in 2016.

Distracted Driving:  Changing the criteria for pulling someone over for texting/emailing while driving from the current secondary offense to one of making it a primary offense.  Our fear upon enactment is the possibility of it being a pretextual stop in the process of racial profiling.

WAR ON DRUGS

 Marijuana Possession:  Possession of marijuana is an issue that JRC has SUPPORTED in the past.  However, the specifics of a particular law bill may dictate the position as to whether JRC supports, opposes, or remains neutral.

Synthetic Drugs:  Bills relating to controlled substances, particularly those 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.  The Iowa Pharmacy Board has pre-filed a bill.

First of all, the bill extended the time limit of designating a temporary controlled substance from the end of one general assembly to 2 years.  A two-year designation as temporary is far too long.

Second, JRC OPPOSES the bill based upon statements within a past Fiscal Note:

Synthetic Drugs The correctional impact is expected to be minimal due to the low number of convictions under current law.  Enhancing the penalties will increase the incarceration rate and lengthen the term of supervision, both in the state prison system and Community-Based Corrections (CBC).  Offenders convicted under the provisions of this bill will remain under supervision longer than current law.

Minority Impact: To the extent convictions occur under the provisions of the bill, there will be a minority impact, specifically to Blacks.  Blacks comprise approximately 3.4% of the Iowa population but represent approximately 27.3% of the convictions impacted under this bill.

The fiscal note points out (italicized emphasis above) that there will be very few convictions.  Yet, those convicted will serve enhanced penalties.  JRC opposes the enhancement of penalties where research is lacking as to whether the enhancement will serve a viable purpose.  It also points out that minorities will be heavily impacted by the provisions of this bill.

JRC may have to oppose these bills based upon language which was included in the past: adding vague language about risk assessments.

RE-ENTRY

Fair Chance Law:  Bills prohibiting employers and employment agencies from seeking the criminal record or criminal history from applicants for employment under certain circumstances, providing penalties, and including effective date provisions.  JRC SUPPORTED this legislation in 2016, most popularly known as the “Ban-The-Box Bill”, but more respectfully known as “The Fair Chance Act”.

 

Felon Voting Rights Video

Below is a video of a voting rights discussion sent in by Mike Cervantes of Inside OUT Reentry Program.

https://www.youtube.com/watch?v=Ljf1h-yxIws

News from the Department of Corrections

On Friday, January 6, the Iowa Board of Corrections approved two changes in wardens at Iowa prisons.  Patti Wachtendorf, who is currently the warden at Iowa Correctional Institute for Women at Mitchellville, will succeed Warden Nick Ludwick, who is retiring Jan. 31, at the Iowa State Penitentiary in Fort Madison.

Sheryl Dahm, who is currently the warden at the Clarinda Correctional Facility, will replace Wachtendorf as the warden at Mitchellville.  No one was named to replace Dahm in Clarinda, according to Department of Corrections Director Jerry Bartruff, but Deputy Warden Stephen Weis will serve as acting warden until a new warden is named.

The Board also reviewed eight policy changes and will act on them at the next meeting.  Three of the policies are described to be confidential, the others are related to the administration of the department and work programs and work-related injuries.  Getting the Board to approve policy rather than having policy approved by the director was a huge accomplishment of JRC.

 

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UPCOMING EVENTS

IOWANS AGAINST THE DEATH PENALTY

WILL MEET ON January 24, 2017 at 6:30 pm at

Grace United Methodist Church in Des Moines.

3700 Cottage Grove Ave, Des Moines, IA 50311

Dues are a minimum of $15 per year.  Checks may be made out to IADP and sent to:

IADP

P.O. Box 782

Des Moines, IA 50303

Those who have not attended a meeting are also encouraged to join.  We ask that you include an email address with the submission of their dues.

A tax-deductible gift may be made to the “IADP Fund”, but a contribution to the “Fund” will not make you a member.  Contributions to the IADP Fund” may be sent to the same P.O. Box in Des Moines.

Organizations’ dues are $50 per year.

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The next Friends of Iowa Women Prisoners meeting is at noon on Tues., January 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.

 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.

[1] https://www.wcl.american.edu/endsilence/documents/50StateSurvey-SSMLAWS2013Update.pdf

 

[2] On March 25, 2011, Megan Elizabeth Cecil, 32, a former Department of Correctional Services residential officer, was sentenced to two years probation on two counts of sexual misconduct and required to register as a sex offender. She had been charged with having sex with a male prisoner at the Burlington Men’s Residential Facility four times in March 2010. [See: PLN, June 2011, p.50]. According to court records, former Dallas County jailer Kevin Paul Hines, 60, pleaded guilty to sexual misconduct with an offender and was sentenced on June 10, 2011 to two years; he was also ordered to register as a sex offender and pay $1,599.02 in restitution. Hines had been arrested in 2009 for raping prisoner Tamera Poeschl three times in a temporary jail cell.

 

And several more examples.