JRC April 8 Newsletter

Vol. 9 #6 April 8, 2018Absurdity, Not Justice

Rep. Mary Wolfe (@RepMaryWolfe) tweeted that “SF 2230 enhances penalty for kidnapping a minor from Class “C” (10 years) to Class “B” (25 years) UNLESS kidnapper is a parent – not a parent of the kidnapped minor, just a parent – whose sole purpose is to assume custody of the minor – not legal custody, just custody.  Passed 82-16.”  Words do matter.  See for yourself.

710.3 Kidnapping in the second degree.

  1. Kidnapping where the purpose is to hold the victim for ransom, or where the kidnapper is armed with a dangerous weapon, or where the victim is under eighteen years of age other than a kidnapping by a parent or legal guardian whose sole purpose of the kidnapping is to assume custody of a victim under eighteen years of age, is kidnapping in the second degree. Kidnapping in the second degree is a class “B” felony.

The original version of the bill, as Senate Study Bill 3026, did not have the parental exception:

  1. Kidnapping where the purpose is to hold the victim for ransom, or where the kidnapper is armed with a dangerous weapon, or where the victim is under eighteen years of age is kidnapping in the second degree. Kidnapping in the second degree is a class “B” felony.

JRC objected to the bill originally because there was no exception to cover situations in which a noncustodial parent took the child from a custodial parent, or even in instances where the return of the child to a custodial parent took longer than expected or required.  What we didn’t expect when language was added to cover our concerns was a loophole.

Despite a very simple explanation of the problem with the bill, eighty-two members of the Iowa House of Representatives voted in favor of this bill.  This lopsided vote came after the defeat of an amendment by Rep. Rick Olson (D-Des Moines), which would have fixed the drafting flaw.  Rep. Olson’s amendment was defeated along party lines after the floor manager of the bill, Rep. Ross Paustian (R- Walcott) said that Rep. Olson’s amendment “waters down the bill”.  Wow!  The change from study bill to senate file opened up the flood gates.  Rep. Olson’s amendment would have fixed the bill’s defect, and would have included a limited number of specified family members (besides “the child’s” parent) that would have been exempted from the wide scope of the bill’s terms.  As he mentioned during debate: “This is a common sense amendment.”

Rep. Paustian’s opening statement appeared to be a word-for-word description prepared by the Iowa County Attorneys Association (ICAA).  JRC heard the same explanation during a subcommittee meeting.  The ICAA was attempting to close the barn door long after the horse had left.  But instead of fixing the past, it opened up the future to what could be described as legitimate kidnapping.

On the question “Shall the bill pass?” (S.F. 2230)

The ayes were, 82:

Bacon                          Baltimore                    Baxter                         Bearinger

Bennett                        Bergan                         Best                             Bloomingdale

Bossman                     Breckenridge               Brown-Powers            Carlson

Cohoon                       Cownie                        Deyoe                          Dolecheck

Finkenauer                  Fisher                          Forbes                         Gaskill

Gassman                     Grassley                      Gustafson                    Hagenow

Hager                          Hall                             Hanusa                        Heartsill

Heaton                         Heddens                      Hein                            Highfill

Hinson                         Holt                             Holz                            Huseman

Isenhart                       Jacobsen                      Jones                           Kacena

Kaufmann                   Kerr                             Klein                           Koester

Kressig                        Kurth                           Landon                        Lundgren

Maxwell                      McConkey                  McKean                      Meyer

Miller, P.                     Mohr                           Mommsen                   Moore

Nielsen                        Nunn                           Ourth                           Paustian

Pettengill                     Prichard                       Rizer                           Rogers

Running-Marquardt    Salmon                        Sexton                         Sheets

Sieck                           Smith, M.                    Smith, R.                     Staed

Taylor, R.                    Thede                          Upmeyer, Spkr.           Vander Linden

Watts                           Wheeler                       Wills                           Worthan

Zumbach                     Windschitl, Presiding

The nays were, 16:

Abdul-Samad              Anderson                     Baudler                       Gaines

Hunter                         Jacoby                         Kearns                         Lensing

Mascher                      Oldson                         Olson                           Steckman

Taylor, T.                    Wessel-Kroeschell      Winckler                     Wolfe

Absent or not voting, 2:

Fry                               Miller, H.

Notice the one lone Republican voting intelligently with progressive Democrats.

It’s bad enough that 82 representatives would cast a vote in support of this defective bill, but all 50 senators voted to pass it.  Does no one in the Senate pay attention to the “plain language” of legislation?  We’ll be honest.  We didn’t recognize the serious flaw until we noticed Rep. Mary Wolfe’s tweet.

JRC has several questions in relation to this bill.  How can a legislator vote in favor of a bill that is obviously flawed?  Were legislators not listening to the debate?  Surely, it was brought up in caucus.  How can an association made up of lawyers, the Iowa County Attorneys Association, insist that the bill NOT be modified, even though it cannot be enforced as written?

Congratulate those legislators that voted against this waste of legislative time.  If your legislator voted for this bill, ask why?  Legislation should NOT be advanced if there is a question about whether the language of the bill is ambiguous.  Bills such as SF 2230 often become the issue in a court case in which the codified language is declared unconstitutional.  JRC anticipates that this section of the kidnapping statute will take an express elevator to the Iowa Supreme Court when someone in the very near future is set free from a kidnapping charge because the alleged kidnapper is a parent and the plain language of the bill requires his/her release.

Phone rates in jails

The Iowa Utilities Board has exercised its rule making authority to propose an amendment to its current rules that would “implement rate caps on charges that may be assessed to inmates in Iowa correctional facilities and their families for local and intrastate telephone calls.”  Justice Reform Consortium supports this proposal.

The Notice of Intended Action, ARC 3674C, began with a Request for Rulemaking by Telespan Communications, Inc., and NCIC Inmate Telephone Services (NCIC) back on March 24 of 2017.  Shortly after the request was filed, the Board sought comments on whether it should commence action on adopting a rate cap for inmate phone calls.  JRC did not comment on the procedure last year, but did so this month as the comment period for the Intended Action came to a close.

Besides JRC, the Office of Consumer Advocate and NCIC/Telespan also commented in favor of the proposed rule.  Securus Technologies, Inc., which holds several contracts throughout the state, filed comments in opposition to the proposed rule.  In its opposition statement, Securus did mention that adoption of the rule would interfere with current contracts that Securus, or any other AOS (Alternative Operator Services)[1] companies have with correctional facilities in local subdivisions. The Utilities Board spokesperson before the Iowa Legislative Administrative Rules Review Committee (ARRC) brought up this one concern of Securus and agreed that a change in the rules would have to address this problem.  However, he also concentrated on the benefits that lower rates have on lowering recidivism, and informed the committee that rates in Iowa have escalated to as much as $2.99 for a 1 minute call.

Several members of the ARRC commented positively on the proposal.  Senator Chelgren was concerned about the consistency this rule would have with federal requirements in federal prisons (there are no federal prisons in Iowa, but there are federal prisoners in county jails).  He was assured that this cap on rates would affect only those political subdivisions of the state and would not affect federal facilities or even the Iowa Department of Corrections.

The following excerpts are taken from JRC’s comments to the Utilities Board:

After many years of urging the Iowa Department of Corrections (DOC) to reduce phone rates, families of DOC inmates took matters into their own hands and began to buy cell phones and get a local phone number in the area where their family member was incarcerated. Eventually, the DOC adopted policy to reduce rates, drastically.

In Iowa, offenders have been paying outlandish costs for basic local and intrastate telephone calls because they don’t have any provider choices.  These high costs are for higher company profits or to facilitate kickbacks and commissions which cushion the jail’s general fund.  Iowa jails have other means of recouping the costs of incarceration through pay for stay, commissary sales, and other non-mandatory services. Capped rates and ancillary fees, such as those proposed, would prevent artificially inflated rates which impede communication with children negatively affected by incarceration and arranging for bills to be paid while incarcerated.  JRC believes Iowa needs to mandate local and interstate rates because the current industry rates are not reasonable, fair, or just.  As Iowa DOC has discovered, the results will be positive.

The Federal Bureau of Prisons has a program statement that states: “granting inmates access to telephones furthers important correctional objectives such as maintaining family and community ties. This in turn facilitates the reintegration of inmates into society upon release from prison and reduces recidivism.”

For many years, the Iowa Chapter of Citizens United for the Rehabilitation of Errants (CURE) has participated in a national campaign for affordable phone charges. Iowa CURE (which is one of the member organizations of JRC) and International CURE have recommended a revenue-neutral phone system. It is difficult to understand why the prisoners, families and friends who use the inmate telephone system should pay the cost of operating the system.  Members of Iowa CURE have spoken with Iowa sheriffs about the matter of high phone rates and have been communicating with the Polk County Sheriff’s Department to further resolve the burden to families of incarcerated loved ones.

Those who say this rulemaking is premature and unnecessary [Securus] are shooting flares at passing ships.  They have a financial interest in keeping rates high and see their ship sinking.  On the other side of the argument, waiting for the federal government to resolve any matter relating to this issue could take years: It has already.

The Iowa Department of Corrections reduced its rates to .11 per minute for interstate, intrastate, and local calls. International rates also dramatically decreased to reflect actual costs (no profit) or 11 cents per minute, whichever is higher.  Not surprisingly, according the Iowa Ombudsman, when DOC lowered the telephone rates the number of calls increased and revenues increased.

Studies have shown that offenders and offender’s families (especially children) benefit from more contact with an incarcerated loved one.  Most people who enter jail do not have the money to pay $.50 per minute for a phone call (20-minute phone call is $10).  Families usually pay for the phone calls and spend a lot of money staying in contact with their loved one.

What’s next?  We anticipate that the proposed rule will be amended to address the issue of current contracts.  We do not know how the Board will amend the rule, but it remains a positive step even if the rule proceeds, and we suspect it will.

Bill watch

Senate File 2235 – This bill creates the new crime of critical infrastructure sabotage, and the penalties it provides are atrocious.  JRC OPPOSES.  The bill provides for a class “B” felony and a fine of $85,000 to 100,000 for “critical infrastructure sabotage”.  JRC has expressed concerns that the fine could be considered an “excessive fine” in certain circumstances and could violate the Eighth Amendment[2].

This bill has passed both chambers and is on its way to the governor’s office for her signature.

Senate File 2382 is an Act modifying criminal code provisions relating to criminal records, penalties, prosecutions, appeals, driving privileges, and postconviction relief, and including effective date provisions.  This bill has been identified by JRC as a vicious attack on the courts in the past few newsletters.  Currently, an amendment supported by JRC and introduced by the House Judiciary Committee (unanimously approved in Committee), is pending on the floor of the House.  The amendment may be the demise of the entire bill, and that’s okay with us.  JRC believe this bill includes the constitutionally-prohibited act of logrolling.

House Joint Resolution 2010 and Senate Joint Resolution 2010:  These two pieces of legislation would start the process of amending the Iowa Constitution to include a victims’ rights amendment.  Called Marsy’s Law, JRC OPPOSES this measure.  Although neither resolution has been acted upon by its respective chamber, both are eligible for debate at any time.

HF 2443 – This bill addresses the delinquency jurisdiction of the juvenile court and the confidentiality and disclosure of certain juvenile court records.  JRC SUPPORTS this bill.  It is on the Senate Calendar and ready for debate at any time.

SF 2394 – A bill for an act relating to surcharges added to criminal penalties, court funds, civil fees, misdemeanor and felony fines and fines associated with scheduled violations.  JRC opposed this bill’s predecessor, Senate Study Bill 3202.  However, although the bill raises fees on page after page of criminal penalties, fines, etc., it does drastically reduce the criminal surcharges that have been attached to financial obligations owed by defendants in criminal matters.  After careful review, we decided to declare as UNDECIDED on this bill.  In any case (no pun intended), it is insulting and condescending to have the Legislature change the name of the fee from “Criminal Surcharges” to “crime services surcharges”.

In November of 2017, the Fiscal Services Division of the nonpartisan Legislative Services Agency distributed a factual piece on “Criminal Fine Revenue and Surcharge Distribution”: https://www.legis.iowa.gov/docs/publications/FTNO/864823.pdf

SF 2394 passed the Senate 45-4 on April 4 and has been sent to the House for its consideration.

As we mention often: A bill may become ineligible, but an issue NEVER dies!

[1] “Alternative operator services company” means a nongovernmental company which receives more than half of its Iowa intrastate telecommunications services revenues from calls placed by end-user customers from telephones other than ordinary residence or business telephones.

[2] Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.