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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There’s a Better Way (although Paul Ryan would most likely disagree).

In late April of 2016, on the last day of session, the Iowa General Assembly passed a (presumably) balanced budget for the upcoming Fiscal Year 2017 , which runs from July 1, 2016 through June 21, 2017 – i.e., we’re more than half way through FY 2017. The Legislature created the  FY 2017 $7.350 billion budget using the March 2016 “Revenue Estimating Conference” estimate (What’s the REC? It’s this.) that there would be $7.425 billion in available funds ($7.380 billion in revenue and $45.6 million in carry forward from the FY 2016 budget surplus).  (Here’s a link to a simple synopsis of the the budget process in Iowa)

Unfortunately, according to the December REC FY 2017 estimate, FY 2017 receipts will only total $7.211 billion, and there will be only $24.6 million in carry forward, totaling $7.236 billion (not $7.425 billion) in available funds. These numbers, along with some other necessary adjustments,  result in a budget shortfall for Fiscal Year 2017 (which again, we’re more than halfway through) of approximately $113 million.  And since the current fiscal year budget is no longer balanced, the Governor and the Legislature need to balance it, quickly, so that we can start working on the budget for the upcoming fiscal year.

There are at least two ways to resolve the FY 2017 budget shortfall, and I know which one I prefer, but first – it’s odd that Iowa is facing a current fiscal year budget shortfall when Iowa’s economy (like our country’s economy) is indisputably growing. What’s up with that?

Why a Budget Shortfall?

The above chart illustrates one of the reasons that the State currently finds itself underwater. Over the past several years, Iowa’s General Assembly (helmed by a Republican Governor and a Republican House) has used one-time money to fund on-going expenses over and over again. In each of the past three budgets that the House has passed, more dollars were spent than taken in. Each year, the resulting shortfall was taken out of the prior fiscal year surplus, and … as was almost guaranteed to happen, we are now left with no prior year surplus to carry forward, and with a current fiscal year budget shortfall.

Note that the steepest growth in appropriations took place following the 2013 legislative session (FY14). During that session, the Governor and the House majority party pushed for an education reform package and massive corporate tax giveaways that now cost the Iowa taxpayers over $500 million annually. Hundreds of millions of the income taxes paid by middle class working Iowans are being used to back fill the gap in local property tax revenue that corporations (often out of state or even out of country corporations) are no longer required to pay. And yes, I voted for the commercial property tax reform bill, because we were promised that it would trigger economic growth across Iowa, and Clinton County’s business community told me we definitely needed economic growth, and the bill represented a compromise that had been worked out by the then Democratic Senate majority party and the Republican House majority party, and it did provide some small measure of assistance to middle income Iowans in the guise of an expansion to the earned income credit, but …. in hindsight, the bill was unrealistic in its assumptions, and it hasn’t delivered as promised in Clinton County, or in most of Iowa’s rural counties.

So anyhow … it happened, mistakes were made, there’s a $113 million current fiscal year budget shortfall, and Senate File 130 is the “solution” that has been agreed upon by the Governor, the House (Republican) majority leadership and the Senate (Republican) majority leadership. It was passed out of the  Iowa Senate this past Thursday (on a party line vote), and will be debated in the Iowa House on Monday, where (spoiler alert) it will also pass, also on a party line vote. I’ll be voting NO, along with the rest of my House Democrat colleagues.

Why do I have a problem with Senate File 130? Here’s why: it chooses to eliminate the current fiscal year budget shortfall by selectively cutting millions of dollars from the FY 2017 operating budgets of Iowa’s judicial branch, Iowa’s public universities and community colleges, Iowa’s Departments of Corrections and Public Safety, Iowa’s Department of Human Services, and other agencies and departments that provide important services to Iowans. These budgets were all set back in April or May of 2016, in good faith, based on the Legislature’s promised appropriations, and it is unrealistic to believe that the targeted departments can deliver the mandated “savings” by June 31st without negatively impacting the quality of the services provided, which will in turn negatively impact Iowans in general.

Additionally, Senate File 130 wipes out the $12 million dollar Grow Iowa Values Fund and the $6 million dollar balance in Iowa’s Cultural Trust Fund, which in my opinion sends a sorry message about Iowa’s priorities. The Grow Iowa Fund serves as a major funding source for projects that are focused on job creation or retention, value-added agriculture and entrepreneurial efforts, and it has been responsible for creating or retaining thousands of good paying jobs in Iowa. Interest generated by the Cultural Trust Fund’s capital is used to help fund hundreds of important projects (for example, Clinton’s Sawmill Museum) that have enriched the quality of life for Iowans across the state. Obviously, a zero trust balance generates zero interest, and gutting the Cultural Trust Fund tells anyone listening that Iowa’s government has zero interest in encouraging and contributing to the cultural enrichment of its citizens.

So – if I’m a NO on Senate File 130, what’s my proposed solution to Iowa’s budget crisis? Good question. First, while eliminating or reducing tax credits and tax cuts won’t solve the current fiscal year budget emergency, going forward the Legislature needs to systematically review and, when appropriate, reduce or eliminate the commercial tax cuts and tax credits that are being awarded and paid out to big corporations – some of which are based in other states or other countries, and some of which don’t pay a dime in Iowa taxes (Here’s some good background on Iowa’s “Research and Development” tax credits.)  I would also propose that in the future, the taxpayer dollars being paid out to local governments to make up for the reduction in commercial property tax revenue should be restricted to those counties and cities (like Clinton) that have experienced little if any of the economic growth we were promised back in 2013 – targeting the back fill in this evidence based manner would considerably reduce the $500 annual back fill price tag.

As far as dealing with the current $113 million FY2017 budget shortfall … the reason that I can’t support Senate File 130 and its inequitable and unrealistic budget cuts is because there’s another, better (in the short and long term) option – an option that has never been given a full and fair hearing (or any hearing at all) by the Senate and House majority party. The Economic Emergency Fund was created by Iowa Code 8.55, and one of its statutory purposes is to allow the State to maintain a positive fiscal balance in the event of a current year budget shortfall – i.e., under 8.55(3), a current fiscal year budget shortfall is specifically referenced as an “economic emergency” for which EEF funds can be used. Iowa has over $750 million in its combined Economic Emergency and Cash Reserve Funds –  the combined funds’ balance is made up, in part, of state income taxes paid by hardworking Iowans, who pay those income taxes with the reasonable expectation that the State will use those hard earned dollars to take care of the people’s business.

While the rules that govern the use of the EEF are convoluted, bottom line, the General Assembly can appropriate up to $50 million from the fund quickly and with a minimum of fuss (and under the current fact scenario, that $50 million appropriation would not have to be “repaid” to the fund at the end of FY 2017).  Instead of sitting dormant, that $50 million could be used to either altogether eliminate the need for some of the tax cuts set out in Senate File 130 (e.g., no tax cut to the Judicial Branch and Community Colleges and the DOC), or to reduce all of the proposed cuts by about 50% across the board. While I’m sure that the targeted departments would find any budget cuts difficult to absorb this late in the fiscal  year, I believe that a 50% reduction to those proposed cuts would prevent lay offs, and would at least serve to mitigate any reduction in services to Iowa’s children and families.

Note that I am NOT proposing “spending one time money for ongoing expenses.”  A budget shortfall is not an ongoing expense, it’s an anomaly, especially during a period of economic growth. [The last time this happened was in 2009, when the bottom fell out of the United States economy and the federal government stopped paying its bills to state governments].  Iowa is currently looking at a projected economic growth rate of at least 4%, and now that we’ve all been forced to acknowledge the negative (short and long term) impact that out of control tax credits and tax cuts can wreak on our state budget, it’s a reasonably safe assumption that Iowa won’t be facing another current fiscal year budget shortfall in the foreseeable future.

So I really want to  know – why isn’t appropriating $50 million from the EEF the fiscally responsible thing to do? The Economic Emergency Fund was created to allow the State to deal with an economic emergency in a timely and responsible manner – and while the Governor and the House and Senate majority leadership can all insist that a $113 million current fiscal year budget shortfall doesn’t qualify as an economic emergency,  Iowa Code 8.55 and a whole lot of angry, anxious, frustrated Iowans say otherwise. Seriously, why should a single Iowa taxpayer lose a single day of salary (which is definitely going to take place under Senate File 130) if the Legislature can prevent that from happening by simply doing our job? And if the Legislature can resolve this current budget shortfall without reducing Iowans’ access to important services by using EEF funds that are intended to be used for just this purpose, shouldn’t we do so?

 

Of course we should do so (in my opinion), but we obviously aren’t going to do so. And why not? I suspect in part because appropriating $50 million from the Economic Emergency Fund balance in order to apply it towards the current FY 2017 shortfall – one of the statutorily designated purposes for which the EFF was created – is still … spending taxpayer dollars, and thus an elected official who advocates in favor of that option could be accused of … I don’t know what, exactly, but it must be bad, because why else is almost no one talking about this?

I sincerely believe that if Iowa’s elected officials had been given the opportunity to share with our constituents the fact that there exists a viable, reasonable and fiscally responsible alternative to Senate File 130’s draconian and inequitable budget cuts, common sense would have prevailed and Senate File 130 (at least in its current form) would be off the table. But Senate File 130 was filed on Tuesday, January 26th and was debated and voted out of the Senate two days later – this ridiculously expedited time frame made it impossible for me/my colleagues to have a meaningful discussion regarding the bill (and re any possible alternatives) among ourselves, much less with our constituents. This refusal on the part of the Governor/House/Senate leadership to provide us with a reasonable amount of time in which to do our due diligence on a very important bill does not bode well for this session, or for the State – there’s a better way, and this isn’t it.

Reserve Funds

 

 

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In Iowa, you can already “stand your ground.”Really.

It’s been way too long since I’ve posted on this blog site but we are back in session and the bills are rolling out so … we’ll see if I can be a little more consistent going forward.

Today (Monday) I was on Iowa Public Radio’s “River to River” program, talking about Iowa’s current law relevant to a citizen’s right to defend herself/another/her property/the property of another. Senator Chelgren was also on the show, discussing two bills ( Senate File 25 and Senate File 70 ) that he recently filed, I assume to address what he believes are deficiencies in current code (although I’ll let him explain that for himself on today’s radio show).

There are a lot of misconceptions about Chapter 704, Iowa’s current “justification” law (which is legalese for “self defense” law);  while some of those misconceptions are due to  the deliberate dissemination of misinformation on social media (by people who should know better),  I would certainly agree that at least some of the Chapter 704 statutes (e.g., 704.1 , which packs a lot of law covering three different issues into one little paragraph) are not particularly easy reading. But if you do actually read through and study Chapter 704, you will see that in Iowa, citizens have the right to “stand our ground” in almost all circumstances – the only situation in which a citizen who is confronted with force (against herself or another) is required to take some alternative action (e.g., retreat) as opposed to meeting force with force is IF she can safely do so without putting herself or anyone else at any risk – i.e., if retreating is a completely risk free option. Which I would think would very rarely be the case, right? And of course, if a citizen is in her residence, place of employment or place of business, there’s no “alternative course of action” requirement at all.

[For those of you who are interested, here’s a pdf of a presentation on Chapter 704/Iowa’s justification law  I recently did (aimed at non-attorneys)  … it’s super enlightening. Or in any event, it’s a quick read.]

As at least some of you are aware, in addition to serving in the state legislature I’m a criminal defense attorney, and I am and have always been a staunch supporter and defender of ALL of our state and federal constitutional rights – and as far as 2nd Amendment rights, my voting record speaks for itself. I’ve voted in support of almost all (maybe all?) of the “gun bills” that have passed out of the House over the past four years – not because I’m afraid of the NRA (I’m not) but because those bills didn’t make Iowa a less safe place in which to live (which was evidenced by the fact that Iowa’s law enforcement agencies did not register in opposition to the bills in their final form), and because the bills in their final forms were the product of good faith compromise on both sides, and because many of my constituents requested that I support the bills and gave me good reasons to do so, and also because Constitution.

Senator Chelgren’s bills aren’t in the House yet, so I haven’t spent much time on them. At first glance, both bills seem to include provisions that are similar to provisions already in code (e.g., under current  707.6 , a person who uses reasonable force to defend himself or another or property is already immune from civil liability for any injuries to the person against whom the reasonable force was used) but not identical, which is problematic for enforcement and clarity purposes.

Also problematic: under Senate File 70, a person is justified in using force, including deadly force, if a person “believes” that deadly force is needed to “prevent another person from committing, or who is about to commit, an aggravated misdemeanor or felony offense.” First, there’s no requirement that the belief be a reasonable one; thus, under the bill a woman with an irrational fear of brown haired men would be legally justified in shooting a brown haired man in the HyVee parking lot if she sincerely believed the brown haired man was about to grab her and rape her, even if her belief was completely irrational and predicated upon the fact that he was looking at her funny and walking towards her in (what she believed to be) a furtive manner. Second, suggesting that the use of deadly force to prevent the commission of an aggravated misdemeanor (e.g., the theft of a $600 bike) might ever be legally justified is not acceptable – both because third degree theft is not a death penalty offense, and also because there’s no requirement that the belief re the imminent commission of the theft be a reasonable belief.

Having said that, I strongly believe that Iowa Code Chapter 704 could benefit from a comprehensive overhaul – not to amend the substance of the already robust protection embodied in current code, but to ensure that the statutory language setting out the scope and breath of an Iowan’s right to protect himself, his property, or another person provides accurate, understandable and unambiguous guidance to Iowa’s citizens, law enforcement agencies, prosecutors, judges and juries. I’d jump at the opportunity to serve on a joint House/Senate subcommittee tasked with reviewing and possibly re-writing Chapter 704, with input from citizens, law enforcement agencies, prosecutors, the NRA and IFA, gun safety groups, etc. This type of “big picture” legislating takes more time and effort than passing multiple (often contradictory) bills amending individual little pieces of Chapter 704, but the end result would be a win for Iowa and a win for the 2nd Amendment.

 

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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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