Aggravated Misdemeanor Convictions DO NOT Disqualify Voters!

About four weeks ago, I was sent a link to a brochure prepared by the IA Chapter of the ACLU to assist Iowans convicted of felonies in navigating the unnecessarily complex process of applying to the Governor for a restoration of their voting rights. This seemed like a great idea; however, upon opening the link I was unpleasantly surprised to find several statements  on the IA-ACLU’s website and in their brochure declaring that any Iowan convicted of an aggravated misdemeanor cannot legally vote, and referencing information set out inthe Governor’s website’s FAQ section (see the 2nd FAQ on the first page) to support this assertion.

When I say “unpleasantly surprised” I actually mean “horrified,” since I practice criminal law, and since it is my understanding that only a felony conviction triggers loss of voting rights, I don’t inform clients pleading guilty to an aggravated misdemeanor offense (e.g.,  Driving While Barred) that in doing so, he or she is effectively and permanently forfeiting his/her constitutional right to vote. I do explain the loss of voting rights to clients who are entering a guilty plea to a felony offense, and in accepting a plea to a felony, the judge always goes through it again, on the record, to make sure that the defendant understands exactly what he or she is giving up – but since I was under the impression that only a felony conviction triggers disenfranchisement (loss of voting rights), I don’t tell my clients otherwise, nor has any judge in any aggravated misdemeanor case I have ever handled.

So I was more than a little freaked out, and immediately turned to Secretary of State Matt Schultz’s website, since it is Iowa’s Secretary of State who is tasked with supervising Iowa’s 99 county auditors and enforcing Iowa’s election laws. I was relieved to discover that it very clearly states on the SOS website’s voting eligibility information page that only a felony conviction triggers loss of voting, and that Iowa’s official voter registration form  only requires an applicant to certify that he or she has never been convicted of a felony – no questions about aggravated misdemeanor convictions. And after spending way too many hours researching and deconstructing the Iowa law controlling voting rights, I can unequivocally state that while there are many issues on which Matt Schultz and I do not agree (e.g., the need for overly burdensome voter ID regulations to control Iowa’s non-existent voter fraud problem), on this issue — and quite possibly only on this issue —  I am 100% in the Secretary of State’s corner. (Quite a red letter day for Matt, I am sure).

But while I am thrilled to have found reassurance that Iowans with aggravated misdemeanor convictions can legally vote in Iowa, I am not thrilled about what appears to be a complete and total disconnect between Iowa’s Governor and Secretary of State on such a straightforward, yes or no issue. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”Reynolds v. Sims, 377 U.S. 533, 555 (1964), and Iowans have a right to be provided with clear, concise, and – most importantly – consistently correct information about those rights by Iowa’s leadership.

So if the Secretary of State is correct and Iowans convicted of an aggravated misdemeanor offense are eligible to vote under Iowa law (and he is, and they are), then it is a travesty that our Governor (unfortunately with the help of the IA-ACLU) is disseminating information indicating just the opposite, since by doing so he is misleading tens of thousands of Iowans about their right to participate in the democratic process (unintentionally misleading, I am sure, but still misleading). And if the Secretary of State is wrong (which he isn’t, on this issue at least, but let’s just suppose) then Iowans with an aggravated misdemeanor conviction who rely upon the SOS’s website, and do vote, could be charged with a felony offense under Iowa Code §39A.2(3) — and how ridiculous would that be? So clearly, everyone needs to be on the same page, and they need to be on the correct page, and for the reasons set out below I propose that the correct page is the page that definitively declares that in Iowa, it is a state or federal felony conviction, and only a state or federal felony conviction, that acts to disqualify an otherwise eligible Iowan from voting.

Iowa’s Constitution and Iowa’s laws support the Secretary of State’s position that it takes a felony conviction to disqualify Iowans from voting.  Article II, Section 5 of Iowa’s Constitution, tells us that “A person adjudged mentally incompetent to vote or a person convicted of any infamous crime shall not be entitled to the privilege of an elector.” Thus, according to our Constitution, Iowans convicted of an “infamous crime” can’t legally vote – so what constitutes an infamous crime?

The dictionary definition of infamy is “an evil reputation brought about by something grossly criminal, shocking, or brutal” or “an extreme and publicly known criminal or evil act.”  Some synonyms for infamous include abominable, atrocious, corrupt, degenerate, detestable, heinous, foul, loathsome, monstrous, odious, perverse, shocking, vile, and wicked. So common sense would suggest that an infamous crime is an extremely serious crime — one that normal people would find shocking, foul, wicked, etc.

Obviously, reasonable people can disagree on whether a specific crime reaches the level of shocking/foul/wicked, so who gets to decide whether or not a crime reaches that level? The Iowa legislature gets to decide — and in 1995, the legislature created a more specific definition: under IA Code §33.3(8), an infamous crime is “a felony as defined in section 701.7, or an offense classified as a felony under federal law.” And this definition of infamous crime was incorporated into Iowa Code §48.6(1), which states that in Iowa, a disqualified voter is a person who has been either “convicted of a felony as defined in Iowa Code §701.7” OR “convicted of an offense classified as a felony under federal law”. That’s it, in a nutshell — if you don’t fall into one of those two categories, then you are legally eligible to vote in Iowa (at least as far a criminal convictions are concerned — there are some other rules having to do with age and mental status, but they aren’t relevant to this discussion).

So…. is a person convicted of an aggravated misdemeanor “convicted of a felony as defined in 701.7,” so as to fall into the first category of disenfranchised voters created by 33.3(8) and 48A.6(1)? 

Absolutely not. Iowa Code §701.7 states that “A public offense is a felony of a particular class when the statute defining the crime declares it to be a felony.”  This is a fancy way of saying that a person convicted of a state felony — whether it’s a felony conviction from Iowa or a felony conviction from Illinois or a felony conviction from Alaska etc —  is convicted of a felony for purposes of disqualification of voting rights in Iowa, and cannot vote in Iowa unless and until the Governor restores his/her right to do so (which under our current administration is an extremely iffy proposition, but that’s a rant for another day). Under the full faith and credit concept, this makes sense — if a sister state declares a certain crime to be a felony, then as far as Iowa is concerned, it’s a felony. But clearly, an aggravated misdemeanor conviction would not be a felony conviction under this prong of 48A.6(1).

OK, then, is a person convicted of an aggravated misdemeanor “convicted of an offense classified as a felony under federal law?” so as to fall into the second category of disenfranchised voters created by 33.3(8) and 48A.6(1)?

Again, no. A conviction for “an offense classified as a felony under federal law” means, in my opinion, a conviction for a federal felony offense. I.e., it means what it says. Simple, right? And since an Iowa aggravated misdemeanor offense (or a misdemeanor offense from any state) is obviously not a federal felony offense, then an aggravated misdemeanor conviction does not trigger loss of voting rights.

I will acknowledge that the drafting of this prong of 48A.6(1) is sloppy, and that ideally, instead of “or convicted of an offense classified as a felony under federal law” the second prong of 48A.6(1) should read “or convicted under federal law of an offense classified as a felony.”  Because the subordinate clause “under federal law” was stuck at the end of the sentence instead of after “or convicted,” which is where it belongs, the phrase is rendered somewhat ambiguous, and it is this slight ambiguity upon which the Governor has staked his claim that aggravated misdemeanor convictions trigger loss of voter rights. But more about the Governor’s convoluted analysis of the law shortly.

Under my analysis, Iowa Code §48A.6(1) – which incorporates the definition of “infamous crime” set out in Iowa Code §33.3(8) – clearly disqualifies people from voting in Iowa ONLY if they have been convicted of a felony in a state court OR if they have been convicted of a felony in a federal court, period. It does not disqualify people who have been convicted of aggravated misdemeanor offenses. That’s what the plain language of the law says, and this interpretation is certainly clear and consistent with the common sense, dictionary definition of infamous crime (a shocking/ foul/wicked crime), since while most Iowa felony offenses can, arguably, be considered shocking/foul/wicked, most (if not all) Iowa aggravated misdemeanor offenses simply cannot.  (Here’s a chart that lists every Iowa criminal offense — check out the third column to spot the many many aggravated misdemeanors). 

Best of all, this reasonable interpretation of the law doesn’t result in loss of voting rights for the tens of thousands of Iowans who have been convicted of aggravated misdemeanors or who have discharged aggravated misdemeanor convictions in the eighteen months since Gov. Branstad took office. It would be a horrible injustice for all of these non-felons to suddenly be informed, for the first time, just weeks before the extremely important upcoming election, that they will not be allowed to participate in this election — and thus I am very glad that the Secretary of State apparently agrees with my interpretation of Iowa voting law, and has been allowing and (I assume) will continue to allow Iowans convicted of aggravated misdemeanors to vote.

But if it’s so obvious that under Iowa law, only felony convictions trigger loss of voting rights, then what the heck are the Governor (and the IA-ACLU, unfortunately) doing taking the opposite position? I certainly don’t speak for the Governor, but I have engaged in some dialogue with the IA-ACLU rep, and here’s my best synopsis of my understanding of the rationale behind the assertion that a conviction for an aggravated misdemeanor does trigger loss of voting rights (and again, I may well be missing something or mistating their analysis and if so, hopefully someone will correct me): 

1.  That the first prong of 48A.6(1) – a conviction for “a felony as defined in 701.7”- means an Iowa felony conviction only, and does not refer to a felony conviction from any other state. I do not agree, since 701.7 clearly does not require that the public offense take place in Iowa, or that the statute declaring the public offense a felony be an Iowa statute. So I continue to maintain that a conviction for “a felony as defined in 701.7” means a felony conviction from any state.

2.  That the second prong of 48A.6(1) – “or convicted of an offense classified as a felony under federal law” – does not, in fact, refer to a conviction for a federal felony offense (which is certainly what it seems to refer to), it means instead a conviction for any crime, whether in state or federal court, that carries a maximum sentence of more than one year. 

The argument is that (1) under federal law – federal, not state law – an infamous crime is defined as a crime that upon conviction carries a maximum period of incarceration of more than a year (which is true), and that (2) all federal crimes that carry a maximum sentence of more than a year in prison are classified as felonies (which is true), and thus (3) an Iowa aggravated misdemeanor conviction, which carries a maximum indeterminate two year prison sentence, is, in fact, a “felony” for purposes of taking away an Iowan’s right to vote (?).

My first reaction to this (confusing and convoluted, in my opinion) argument was “Seriously?” We are dealing with an interpretation of our STATE law here, folks, not federal law, and in enacting IA Code §33.3(8), the Iowa legislature specifically declined to define “infamous crime” as “a crime carrying a possible maximum sentence of incarceration in excess of one year” –  i.e., the legislature did not simply adopt the federal definition of infamous crime for purposes of Iowa’s voting rights law, which it certainly could have done if that’s what it intended the law to be. 

And the reason I assume the legislature didn’t just parrot federal law on this issue is because our Iowa “indeterminate” criminal sentencing structure is extremely different from that of the Federal “determinate” criminal sentencing structure. Under Federal law, a person convicted of a federal felony and sentenced to serve a (determinate) two year federal prison sentence is going to serve out almost all of that time locked up in federal prison; under Iowa criminal law, a person convicted of an aggravated misdemeanor and sentenced to an (indeterminate) two year state prison sentence is eligible for parole immediately upon entering prison, and if not paroled sooner, will completely discharge the sentence in about ten months, due to the fact that prison inmates are given 1.2 days of good time for every day that they serve.

In other words, while in theory an Iowa aggravated misdemeanor conviction carries a maximum sentence of more than a year, it would be extremely rare for a person serving a prison sentence due to an aggravated misdemeanor conviction to serve more than ten months in state prison, and thus in reality the sentence for an Iowa aggravated misdemeanor conviction is very much not the equivalent of the sentence for even the lowest level of federal felony conviction — which is why it’s problematic to interpret the second prong of 48A.6(1) in such a way as to elevate Iowa aggravated misdemeanor convictions to the same level of “infamy” as federal felony convictions. 

And that’s what the Governor’s interpretation of 48A.6(1) does — it treats an Iowa aggravated misdemeanor conviction as the equivalent of a federal felony conviction for purposes of disenfranchising Iowans, even though this interpretation makes no sense in light of the different sentencing structures (i.e., it’s equating apples to oranges), and even though aggravated misdemeanors are not felonies and thus the plain language of 48A.6(1) could not possibly put any normal, non-attorney Iowan on notice of the fact that an aggravated misdemeanor convictions results in loss of voting rights.

Having said that, I’m an attorney, and because I handle criminal cases in state court and have some familiarity with federal criminal law, and because of the aforementioned problematic drafting on the part of whomever drafted 48A.6(1), I’ll acknowledge that there is an argument, however specious, to be made on behalf of the above position. But the fact that an argument can be made doesn’t mean that it’s a good argument, or that it’s an argument that should be made, and it’s my opinion that it is completely untenable for the Governor to embrace an interpretation of a state statute that ignores common sense and that requires reliance on definitions pulled from federal law, instead of on the plain language of the applicable Iowa law. Particularly when there is a much more reasonable and rational interpretation available that does not disenfranchise tens of thousands of Iowans convicted of  crimes like driving while barred, possessing small amounts of drugs for personal use, operating while intoxicated for the 2nd timein 12 years, stealing less than $1,000 worth of stuff, or all sorts of other crimes which are certainly serious but which are certainly not serious enough to disqualify a person from voting for the rest of his or her life.

And just in case you aren’t yet convinced that under Iowa law, aggravated misdemeanor convictions don’t trigger loss of voting rights, let me point out a big problem with the Governor’s take on this issue – it’s redundant as all heck. Which is a problem because when a disagreement arises concerning the manner in which a specific code section should be interpreted – i.e., when the language in a statute is ambiguous and could arguably mean two different things – ultimately it’s up to an appellate court (in Iowa, either the Court of Appeals or Supreme Court) to decide which interpretation is the correct one.  And when engaging in statutory construction, appellate courts frown on interpretations that result in redundancy within a specific code section (much less within a specific sub-section of a specific code section), which is the case with the Governor’s interpretation of 48A.6(1), as follows:

Both sides agrees that under 48A.6(1) you can’t legally vote in Iowa if you fall into either Category A or Category B, but there is disagreement as to the occupants of the respective categories. Under one analysis (mine, and I believe the Secretary of State’s), Category A consists of everyone convicted of a state felony offense, and Category B consists of everyone convicted of a federal felony offense – no redundancy there, right?  Under the Governor’s theory, however, Category A consists of everyone convicted of an Iowa felony offense, and Category B consists of everyone convicted of any criminal offense carrying a sentence in excess of one year – which would include everyone convicted of an Iowa felony offense, right? 

So under the Governor’s interpretation, the phrase “convicted of a felony as defined by 701.7” is completely redundant and serves as mere surplusage. This may seem like a technicality, but in the world of statutory interpretation, it’s a big no-no of a technicality, and in my humble opinion pretty much seals the deal in favor of the following interpretation of Iowa Code §48A.6:

That in Iowa, a person convicted of either a state felony or a federal felony, cannot vote unless and until his or her voting rights are restored by the Governor, and that since a person convicted of an aggravated misdemeanor has not been convicted of either a state felony or a federal felony, a person convicted of an aggravated misdemeanor can legally vote in Iowa.

I may be wrong — I have been before, and I no doubt will be again — but for the sake of the (at least) 30,000 Iowans who will be ineligible to exercise a fundamental constitutional right if I am wrong, I sure hope that this time I have it right, and that the Secretary of State has it right, and that the Governor has it wrong.  What do you think? 

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Should Felons who Aren’t in Prison be Allowed to Vote?

Under Article II of the Iowa Constitution, an Iowa citizen who has been convicted of “any infamous crime” is ineligible to vote in local, state and federal elections. Our constitution doesn’t spell out the definition of “any infamous crime,” but in 1994 the Iowa General Assembly passed a law defining it as “any felony;.” thus, under Iowa Code Section 39.3(8), any Iowan convicted of any felony is ineligible to vote, forever (unless his/her right to vote has been restored by the Iowa Governor pursuant to this process, which is completely discretionary and which hasn’t been happening much since Governor Branstad took office six years ago).

Recently this statutory definition was challenged on various grounds, one being that it’s overly broad – that the ordinary meaning of “infamous” contemplates something wicked or abominable or shocking, and that many felonies simply don’t rise to a level of “infamy” that justifies permanently stripping a citizen of a constitutionally protected right. Last week, in Griffin v. Pate, a majority of the Iowa Supreme Court rejected this challenge, holding (heavy paraphrasing ahead) that based on the limited evidence before the Court, defining “infamous crime” in such a way as to permanently disenfranchise all convicted felons isn’t so irrational or so inconsistent with prevailing community standards as to require judicial intervention. So, for now, Iowa remains one of only three states that impose a lifetime voting ban on all convicted felons.

However, in the Griffin ruling Chief Justice Cady points out (more than once) that if there exists a general consensus that Iowans’ attitudes towards felons and voting rights have evolved since the original statutory definition was enacted, the Iowa Legislature can re-define “infamous crime” to mean something other than “any felony.” Which is good to know, since pre-Griffin, the conventional wisdom was that the legislature was somehow constitutionally constrained from legislatively loosening up the statutory definition of infamous crime.

I propose that the Iowa Legislature utilize our newly discovered legislative authority to drag Iowa’s felony disenfranchisement law into the 21st century, since I am confident that community standards have evolved over the past twenty years to the extent that the average Iowan no longer believes that every felony offense is so “infamous” as to justify a lifetime ban on voting. For example, possessing 1.5 ounces of marijuana without a tax stamp is a Class D felony, as is trespassing on property owned by a public utility, as is stealing a bicycle that costs more than $1,000 to replace; this illegal conduct is certainly not admirable, but I doubt the majority of Iowans would agree that a conviction for any of these crimes merits the permanent loss of a fundamental civil right.

Iowa’s criminal sentencing laws already appear to reflect a general consensus on the part of Iowa’s lawmakers (the elected representatives of Iowa’s citizens) that not all felonies rise to the level of infamy. Most non-violent felony offenses do not require a mandatory period of incarceration upon conviction, and many first time offenders convicted of non-violent felonies never spend a day in prison; they are allowed to live, work, pay taxes and raise families in our communities, as are felons serving a period of parole and felons who have discharged their sentences. It makes no sense and serves no purpose to deny these Iowans the right to participate in choosing the elected officials who will represent them at the local, state and federal level; felons who aren’t considered dangerous enough to require incarceration can pose little if any danger to the integrity of the ballot box.

Voting is a fundamental civil right, not a privilege, and under current law, thousands of Iowa citizens have been and will continue to be stripped of this right based on a statutory definition that I believe no longer accurately reflects Iowa values. The legislature has a duty to put a stop to this ongoing injustice as soon as possible; one simple way to do so would be to amend Iowa Code Section 39.3(8) so as to define “any infamous crime” as “any felony for which the person is currently serving a period of incarceration.” Whether this is the “best” definition, and/or whether there exists a general consensus that Iowa citizens who aren’t in prison should be allowed to vote, is certainly open to debate – but it’s a debate in which the Iowa Legislature should engage, and it’s one that will require input from Iowa citizens on a local and state level.

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Governor’s March 17th Clinton County Disaster Proclamation

The link I posted earlier was to a 2011 disaster proclamation (woops)  – here’s the one Governor Branstad issued today:

FOR IMMEDIATE RELEASE: Thursday, March 17, 2016

Contact: Governor’s Office 515-281-5211

Gov. Branstad issues disaster proclamation for Clinton County

DES MOINES – Governor Terry E. Branstad today issued a proclamation of disaster emergency for Clinton County in response to recent severe weather.

The governor’s proclamation allows state resources to be utilized to respond to and recover from the effects of severe storms that significantly impacted the county on March 15, 2016. In addition, the proclamation activates the Iowa Individual Assistance Program for Clinton County residents.

The Iowa Individual Assistance Program provides grants of up to $5,000 for households with incomes up to 200 percent of the current federal poverty level, or a maximum annual income of $40,320, for a family of three. Grants are available for home or car repairs, replacement of clothing or food, and for the expense of temporary housing. Original receipts are required for those seeking reimbursement for actual expenses related to storm recovery. The grant application and instructions are available on the Iowa Department of Human Services website. Potential applicants have 45 days from the date of the proclamation to submit a claim.

The language in the proclamation reads as follows:

WHEREAS, on March 15, 2016, a severe storm system affected the state of Iowa; and

WHEREAS, this storm system caused severe weather, including straight-line winds, heavy rains and large hail resulting in significant damage to public and private property, utility disruptions, minor personal injuries and required evacuations due to safety concerns; and

WHEREAS, Clinton County suffered significant damage from this event; and

WHEREAS, reports forwarded to the Iowa Homeland Security and Emergency Management Department by the Clinton County emergency management coordinator and others in the affected county indicate that local resources and capabilities have been exhausted and that state assistance and resources are needed to respond to and recover from the effects of this event; and

WHEREAS, reports forwarded to the Iowa Homeland Security and Emergency Management Department by the Clinton County emergency management coordinator and other officials in the affected county indicate that state individual assistance pursuant to Iowa Code § 29C.20A and 441 Iowa Admin. Code 58.2 (1) is needed to assist certain individuals and families adversely affected by the disaster who otherwise cannot be helped by other means of financial assistance and for whom federal assistance under the Stafford Act is either not available or does not adequately meet the needs of the citizens in the disaster area; and

WHEREAS, these conditions threaten the public peace, health, and safety of citizens of the State of Iowa and have damaged and destroyed public and private property. Because of this, they provide legal justification for the issuance of a Proclamation of a State of Disaster Emergency pursuant to Iowa Code § 29C.6 (1).

A. NOW, THEREFORE, I, TERRY E. BRANSTAD, Governor of the State of Iowa, by the power and authority vested in me by the Iowa Constitution Art. IV, §§ 1, 8 and Iowa Code § 29C.6 (1), and all other applicable laws, do hereby proclaim a STATE OF DISASTER EMERGENCY for Clinton County and do hereby ORDER and DIRECT the following:

As required by Iowa Code § 29C.6 (1), (10) and 42 U.S.C. § 5170 in cases of Presidential Disaster Declarations, this Proclamation of Disaster Emergency activates the disaster response and recovery aspects of the Iowa Homeland Security and Emergency Management Department’s Iowa Emergency Response Plan and those additional response plans applicable to the county affected by this disaster and authorizes the use and deployment of all available state resources, supplies, equipment, and materials as are reasonably necessary to assist those citizens located in the disaster county.

I authorize the Iowa Department of Human Services under the terms and conditions as allowed by Iowa law to render individual disaster assistance to eligible residents of Clinton County who are affected by this disaster. Iowa Code § 29C.20A and 441 Iowa Admin. Code 58.2 (1).

  • This state of disaster emergency shall be effective on March 17, 2016, shall continue for thirty (30) days, and shall expire on April 16, 2016, unless sooner terminated or extended in writing by me. Iowa Code § 29C.6 (1).
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It’s not about “Income Inequality” – It’s about Common Sense and Fairness

Last week I posted a link on my Facebook page to a New York Times article discussing an initiative by the U.S. Department of Justice “calling on state judges across the country to root out unconstitutional policies that have locked poor people in a cycle of fines, debt and jail,” which initiative targets, among other issues, the fact that in some states, judges routinely impose large fines/surcharges/court costs/etc on criminal defendants without any consideration of the defendant’s ability to pay the same, and then use the threat of additional jail time as a collection tool.

This doesn’t happen in Iowa, in part because while judges are required to impose fines in most cases, they generally have discretion to suspend some or all of a fine (or authorize community service in lieu of the fine) if, for example, a defendant is on a fixed income that barely covers his or her living expenses. This policy is NOT based on a desire to “reward” a defendant for being indigent, or to “punish” a non-indigent defendant for holding down a decent paying job; it’s based on an acknowledgement that ordering a poor person to pay hundreds or thousands of dollars in fines and surcharges is the equivalent of ordering him to grow wings and fly to the moon – it’s impossible and it’s not going to happen, and trying to force the impossible to happen is just throwing good (taxpayer) money after bad.

But Operating While Intoxicated offenses are handled differently. OWI mandatory minimum fines are very high (with surcharges, it’s $1,687 for 1st, $2,531 for 2nd, and $4,219 for 3rd), and – in contrast to the fines imposed for pretty much any other indictable offense – a judge cannot suspend any part of an OWI fine (I actually disagree with that interpretation of Iowa Code 907.3(c) but I’m not a judge so …). In my Facebook post I suggested that denying Iowa judges the authority to take into account the objective ability of individual OWI defendants to pay these large fines/surcharges was problematic, both from a constitutional and a common sense standpoint.

Several of my Facebook friends then suggested that I was advocating in favor of forcing rich OWI defendants to pay the fines of poor OWI defendants, and/or that I was excusing and minimizing the actions of low income people who drive while intoxicated – which is not what my post said or implied. No one should drive while intoxicated, ever, and I have no problem with the mandatory driving suspensions and the mandatory jail sentences associated with OWI offenses, because serving a jail sentence and losing driving privileges for a set period of time is pretty much equally unpleasant for everyone, whether they are rich, poor, or in between.  As it should be.

However, the imposition of a fine/surcharge in excess (sometimes way in excess) of $1,500 does hit lower income defendants a lot harder than it hits non-lower income defendants – that’s just a fact, right? I’m far from rich, but if I was (hypothetically) convicted of OWI 1st Offense tomorrow, I could pay off all of my court debt within six months, and doing so would, realistically, have minimal impact on my day to day life – maybe I’d have to be more careful at the grocery store, or put off that trip to Chicago to see my sister, but I’d still be able to pay all of my bills, and take my kid out to dinner, and occasionally go to the movies. And a zero balance with the clerk of court means that the DOT would restore my driving privileges at the end of my six month implied consent suspension period, assuming I’ve completed the drunk drivers class at the community college, completed any recommended substance abuse treatment, and paid the DOT my $250 reinstatement fee.

That’s nice for me; however, a guy earning $8.50 an hour – let’s call him Jake – who’s supporting a family of four simply can’t afford to pay the clerk of court $250 a month for six months. A judge will probably allow Jake to pay $100 a month for fifteen months, but Jake has a family, and he works forty hours a week but barely earns enough to pay the rent, put gas in his car (so his wife can drive him to work) and food on his table, and thus, coming up with an extra $100 every single month for fifteen months is an extremely heavy lift … and something always comes up, especially if you have kids, right? If that “something” is winter boots for the kids, or tires for the car (that Jake needs so his wife can drive him to work), or a family pet who needs to see a vet, maybe Jake decides that he’ll take care of that “something” this month, and (somehow) pay the clerk $200 towards the fine next month … except by then, his case has been sent to a private debt collection agency, which has tacked a 25% surcharge onto the total amount of debt, so Jake owes a lot more than he started out owing, and now Jake won’t be getting his driving privileges back any time in the foreseeable future, and it’s just a really bad situation. Especially if Jake ends up driving himself to work (because his wife is sick, maybe) and gets caught driving without a license and without insurance.

And sure, Jake should have never ever driven under the influence of alcohol in the first place, but the point is that if (hypothetically) I drive under the influence of alcohol and get caught, I can pay off my court debt and get my legal driving privileges back within six months without losing any sleep or missing any meals, even though (and this is important) I am no more or less morally or legally culpable than Jake – I just make more money than Jake.

A mandatory minimum fine that poses a huge (possibly insurmountable) financial hardship for some defendants, and poses only an inconvenience (maybe a big inconvenience, maybe a small inconvenience, but still just an inconvenience) for others doesn’t make sense, it doesn’t make Iowa a safer place to live, and it isn’t fair. And yes, I am well aware that life isn’t fair, but a guiding principal of our criminal justice system is that defendants with similar criminal records who commit the same crime under basically the same circumstances should ideally “suffer” the same amount/level of punishment. A $1,500 fine is, objectively, a much harsher level of punishment for Jake than it is for the me, and that is not the way our justice system is supposed to work.

Luckily, there’s an easy fix: the legislature should give Iowa judges at least some discretion to suspend at least some of a mandatory minimum OWI fine, based on a judge’s determination of what a defendant can or should be able to pay (which again, I think judges can already do, but the AG disagrees). That’s how it works with (I’m pretty sure) every other fine imposed for every other indictable criminal offense (including violent felonies), and I can’t think of any good rationale for treating OWI fines any differently. Can you?


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Yay, the IA House Did Something Smart Today!!!

Earlier today,  the Iowa House of Representatives unanimously passed out House File 2064, which made me happy. In relevant part, the bill grants a judge some measure of discretion when sentencing a defendant for 2nd Degree Robbery (which carries a ten year prison sentence), as follows: under current law, a judge has no choice but to impose a seven year mandatory minimum, regardless of the circumstances of the crime or the defendant’s criminal record, and this 70% mandatory minimum period of incarceration allows for only about one year of supervised parole prior to discharge. Under the bill, a judge has discretion to impose a mandatory minimum of anywhere between 30% and 70% (based on criteria which would include the defendant’s prior criminal record, a validated risk assessment, the circumstances of the offense and the impact of the offense on the victim).

If House File 2064 becomes law, the relatively small changes it effects to current law will, over time, save the Department of Corrections many hundreds of thousands of dollars annually and will reduce the racial disparity in Iowa’s prison system considerably (approximately 50% of offenders serving a Robbery 2nd sentence are African American, compared to about 3.5% of Iowa’s general population).

More importantly, extensive research from across the country and from Iowa’s own non-partisan Criminal and Juvenile Justice Planning and Advisory Division (CJJP) has established that low risk offenders (which some of these folks are, believe it or not) who are given the opportunity to spend less time locked up with high risk offenders (e.g., three to four years instead of seven), and more time on supervised parole (e.g., four to five years, instead of one), are less likely to reoffend – i.e., this sentencing strategy reduces recidivism, which is key to reducing the State’s overall crime rate. That’s probably why Iowa’s Public Safety Advisory Board has recommended reductions to the Robbery (1st and 2nd) mandatory minimums three times in past 3 years:  2014 report   2015 report   2016 report

Admittedly, the sentencing reform effected by this bill could be considered a “baby step” – it addresses only one of the multiple 902.12 offenses carrying a 70% mandatory minimum. The limited scope of the bill was initially very hard for me to accept, but it became clear mid-session that allowing judges some discretion when sentencing Robbery 1st offenders was simply not an attainable goal, at least not this term.

But … it’s a beginning, and while the bill’s impact on Iowa’s mandatory minimum sentences is relatively limited, the fact that House File 2064 passed the House UNANIMOUSLY is a pretty big deal, since the conventional wisdom seemed to be that the Iowa House was unwilling and/or incapable of passing any substantive criminal justice reform bills this session – I am proud that we proved those naysayers wrong, and that we did it with a united front. The House leadership could have easily killed this bill several times over – that didn’t happen, and I appreciate the leadership shown by the House Speaker and Majority Leader on this issue.

I also appreciate House Judiciary Chair Chip Baltimore’s work on the bill – he committed early to trying to accomplish at least something with regards to mandatory minimum sentences, and he ultimately drafted the reasonable and responsible proposal embodied in House File 2064, and supported it in his caucus and on the House Floor. I have no doubt that without said support, the House wouldn’t have been voting on sentencing reform legislation today, much less passing it.

Hopefully, the unanimous passage of House File 2064 symbolizes a willingness on the part of the entire Iowa House to consider other meaningful, evidence based criminal justice reform initiatives – to effectuate reform that is fiscally responsible, and which will, over time, reduce recidivism in our state, making it a safer place for all of us to live, work, and raise a family.

Iowa House File 2064 is a good bill and a good beginning; I’m proud to have played a role in passing it out of the House, and I surely do hope that the Iowa Senate and Iowa’s Governor (who, in his Condition of the State address, urged the General Assembly to “be bold” when addressing criminal justice reform) will also be willing to support House File 2064.

Stay tuned, right?

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Just Being Drunk in Public Shouldn’t be a Crime, Right?

Iowa House File 2023, which I filed, proposes the repeal of the criminal offense of “Intoxication and Simulated Intoxication in Public Places” (which crime was first enacted in 1928). As far as I can determine, Public Intoxication is the only crime in the Iowa Code that criminalizes a mere status – i.e., being drunk in a public place – as opposed to a bad action or behavior. The majority of states – including all of the states surrounding Iowa – do NOT criminalize public intoxication, and those states that do generally require additional proof of some actual illegal behavior. Finally, Iowa is the one and only state in the country that criminalizes “simulated” public intoxication – yes, you can be convicted of a crime for acting like a drunk person, even if you are stone cold sober. Iowa is clearly an outlier in this area, and – in my opinion – not in a good way.

Obviously, drunk people often engage in obnoxiously illegal activity – yelling, fighting, damaging property, interfering with law enforcement, harassment – and when they do, they can (obviously) be arrested and taken to jail based upon existing crimes that target this specific  illegal behavior. Thus, the primary public policy rationale for continuing to classify the mere STATUS of being intoxicated in public as a crime appears to be a (sincere) desire to protect an extremely drunk person who is NOT actually doing anything illegal from possible future injury; a secondary rationale appears to be a desire to prevent the drunk person from possibly engaging in obnoxiously illegal behavior at some hypothetical future point in time. These are understandable goals, but IMO it’s seriously problematic public policy to arrest, jail, prosecute and convict a drunk person “for his own good,” or to keep him from maybe doing something bad in the future –  the ends simply do not justify the means.

In 2015, according to statistics provided by Iowa’s Criminal and Juvenile Justice Planning Division, 10,662 charges were filed, and 9,443 convictions were entered (against about 8,200 defendants, since some of them were charged multiple times or with multiple counts) for the crimes of Intoxication/Simulated Intoxication in a Public Place. Those figures represent a lot of police making a lot of arrests, a lot of citizens spending at least a night in a jail cell, a lot of court appearances and a lot of fines/court costs/attorney fees. I know that our law enforcement agencies, county jails, and courts are underfunded and often understaffed, and thus I wonder if the time, money and other limited resources expended on convicting thousands of people annually for this “crime” could be put to better use elsewhere.
I sincerely respect the various law enforcement agencies that have registered in (strong!) opposition to House File 2023 – their people work in the trenches, under difficult and dangerous conditions, and it is completely understandable that they would prefer not to lose what is no doubt a valuable and time saving tool – i.e., the ability to arrest a drunk person simply for being drunk. But to paraphrase President Ronald Reagan, I believe that the role of our criminal justice system is to protect citizens from other (bad) citizens, and NOT to protect citizens from themselves.

In truth, I find the assertion that it’s in the best interest of either the State of Iowa or of drunk Iowans to arrest and jail and criminalize drunks (who are not doing anything otherwise criminal) FOR THEIR OWN GOOD offensive and alarming … because this is America, people! Right? I mean, come on … we can do better than this!

Anyhow …. while I doubt that House File 2023 will move forward this session, I do appreciate the fact that the bill was, at least, allowed the courtesy of a subcommittee (unlike the rest of the bills I filed this session lol) and I hope that next term my legislative colleagues, local and state law enforcement agencies, and other interested parties can work together on establishing an alternative, NON-CRIMINAL legal mechanism that allows law enforcement officers to provide short term assistance to extremely drunk citizens without long term messing up their lives … I’m sure it’s possible, and I look forward to helping make it happen.

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Please Don’t Veto Senate File 385, Governor Branstad!

Last week, the Iowa Senate and Iowa House passed Senate File 385 unanimously.  It’s now sitting on the Governor’s desk, and assuming the Governor signs off on the bill, then beginning January 1st of next year a person who has been charged with a crime/crimes can request that the corresponding criminal case record be “expunged” (removed from public access) if all criminal charges filed in the case are dismissed, or if s/he is found not guilty of all criminal charges (so long as all court costs have been paid and at least six months have elapsed since the NG verdict was entered or the case was dismissed). Currently, detailed information concerning all dismissed/acquitted criminal cases can be accessed electronically at Iowa Courts Online (the judicial branch’s court records website) or in person at the local clerk of court’s office, and there is no legal mechanism to remove that information from public access. Ever.

This past Saturday, the editorial board of the Des Moines Register declared that allowing these court records to be expunged is “a monumentally bad idea” and advised Governor Branstad to veto Senate File 385. The editorial argues that because Iowa Courts Online clearly indicates the status of each criminal case (assuming you click on each individual case’s hyperlink), it’s “the one tool that can actually prevent people from wrongly assuming a person is guilty” of a dismissed charge – because the online records will clearly reflect if a case has been dismissed, assuming that court records on dismissed charges remain accessible on Iowa Courts Online. And thus (I assume the reasoning goes) the fact that a prospective landlord, employer, loan officer, significant other, etc can easily access unproven allegations of criminal conduct on Iowa Courts Online can’t possibly cause any problems for the Iowans accused of these unproven allegations, since Iowa Courts Online also informs the prospective landlord/employer/ loan officer/significant other/whomever that the criminal case was dismissed. No harm, no foul, right?

Wrong. Because unfortunately, as those of us who live in the real world are well aware, many (maybe most?) people assume that a person charged with a crime must have done something wrong – and probably something criminally wrong – regardless of the eventual disposition of the criminal case. The stigma associated with just being charged with a crime is extremely pervasive and strongly entrenched in our society, and can negatively impact a defendant’s life on a short and long term basis, even if the criminal case is eventually dismissed and even if the dismissed status of the case is clearly reflected in public records. It’s not pretty, and it’s not politically correct (because innocent until proven guilty, right?), but come on … we all know it’s true. And in my opinion, for the Register’s editorial board to suggest otherwise is either absurdly naïve, or deliberately obtuse – I’m not sure which.

What I am sure of is that every year, thousands of Iowans are charged with crimes that are eventually dismissed, and I’m also sure that many of these Iowans have missed out on opportunities – jobs, promotions, nice apartments, loans, etc. – at least in part because information regarding unproven and often completely untrue allegations of criminal misconduct is readily accessible on Iowa Courts Online. Many of these Iowans sincerely believe that they are being treated like criminals despite never having been convicted of a crime, and I am 100% sure that the majority of them will be anxious to take advantage of the expungement mechanism created by Senate File 385.  It’s a good little bill that will make the lives of a lot of law abiding, hard working Iowans just a little bit better, at little if any cost to the government – that’s why Senate File 385 passed the House and Senate without a single dissenting vote, and it’s why I’m confident that Governor Branstad will NOT veto Senate File 385.

A few other points:

  1. Oversight/Accountability:  In direct response to the Newspaper Association’s concerns re the need for public oversight of cases in which dismissals/acquittals are entered, the legislature amended the original bill so as to require a minimum delay of at least six months between entry of an order dismissing a case and entry of an order expunging the case, in order to allow interested parties ample opportunity to review and copy any and all portions of any and every criminal file in which a dismissal or not guilty verdict is entered. Adding this provision to the bill didn’t satisfy the Newspaper Association (apparently when it comes to compromise, its members employ the same “my way or the highway” strategy that newspaper editorials generally deplore when employed by elected officials), but I do think that the legislature’s good faith attempt to specifically address the Newspaper Association’s primary objection to the bill merited at least a mention in the Des Moines Register’s editorial setting out the Newspaper Association’s objections to the bill. I mean, fair is fair, right?
  1. It’s Up to the Defendant:  Expungement of the court records concerning cases in which a defendant is found not guilty or in which all charges are dismissed is completely optional – it’s up to the individual defendant. While either a defendant or a prosecutor can request expungment, under the bill a judge can’t expunge a case unless the defendant establishes that the necessary prerequisites to expungement have been met … so if a person who is charged with a crime that is later dismissed believes (for some unfathomable reason) that it is in his/her best interests to leave the court records associated with that criminal charge forever accessible to the public, then those court records will remain forever accessible to the public.
  1. Plea Agreements Don’t Qualify:  If a defendant accepts a plea agreement – e.g., pleads guilty to a lesser included crime, or in the case of a multi-count trial information pleads guilty to some counts in exchange for the dismissal of other counts – the entire court case will remain public record; this is also true if the defendant goes to trial and is found guilty of anything at all. The only court records that can be expunged under this bill are those cases in which the defendant is found not guilty of all charges, or in which all charges against the defendant are dismissed.


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Let’s expunge info on dismissals/not guilty verdicts, right?

This Friday (i.e., tomorrow) marks the end of this session’s “second funnel” – which means that (with quite a few exceptions) the only bills that remain viable are those bills that have passed out of either the House or the Senate AND ALSO out of a committee in the other chamber.  The fact that a bill has survived the second funnel doesn’t guarantee that it’s going to become law, but … at least it still has a fighting chance. 6842977

And I’m so very happy to report that a bill addressing an issue that is near and dear to my heart is still alive and kicking. Wednesday evening Senate File 385 (in a slightly amended form) passed unanimously out of the House Judiciary Committee.  This bill allows a person to petition the court for an order expunging the court records of his/her criminal case in all cases in which either (1) all of the counts were dismissed or (2) the defendant was found not guilty on all counts – so long as at least 180 days have passed, all court costs/fees have been paid, and the case wasn’t dismissed due to a finding of insanity or incompetency.  The effective date will probably be January 1, 2016, but cases dismissed prior to that date would be eligible for expungement (i.e., the bill is retroactive).

This bill is necessary because sadly – despite the fact that “innocent until proven guilty” is one of the cornerstones of our criminal justice system – the general public (including me, occasionally) often assumes that if a person is charged with a crime, he or she must be guilty of the crime, or at least guilty of something criminal…right? Back when the only way to find out about someone’s criminal record was to pay for a criminal background check, this wasn’t such a big deal; however, Iowa Courts Online (the Iowa Judicial System’s online public docketing site) now allows anyone to conduct what is basically a free criminal background check (at least as far as Iowa cases are concerned) just by typing a name into a search engine – and under current law, information on criminal cases that have been dismissed or in which not guilty verdicts have been entered remains accessible on Iowa Courts Online forever.

Over the past ten years or so, I’ve been contacted by dozens (maybe hundreds) of Iowans who have been and continue to be negatively impacted by dismissed criminal charges every single day, and I’ve heard the same thing from many other attorneys. Often the prosecutors and judges involved with these cases are more than willing to assist in somehow removing the information from the public record, but … under current law that’s just not possible. So an innocent person charged with a crime that is later dismissed, or a person who has gone to trial and been found not guilty of a crime, is nonetheless often presumed guilty (forever!) of the charged offense by potential employers/landlords/the general public.  This is unfair, unIowan, and unAmerican, and thus I am so glad this bill made it out of funnel, and I’m very hopeful that the House majority leadership will allow a vote on Senate File 385 within the next few weeks.

And you can help make that happen! If you or someone you care about has been negatively impacted by a criminal charge that was dismissed, or in which a not guilty verdict was entered, I’d appreciate hearing about – please email me at  And please also reach out to your own elected representative in the Iowa House and ask him or her to support Senate File 385 when it comes up for a vote … your input really and truly matters with this type of bill!

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