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 Mary.Wolfe@legis.iowa.gov.  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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House File 527, the “Omnibus” Firearm Bill

So this week the Iowa House of Representatives passed House File 527 (https://www.legis.iowa.gov/docs/Published/LGI/86/HF527.pdf),  a bill dealing with firearm issues. The bill has several provisions, some of which are clearly good and some of which are arguably problematic; however, it is important to note that the Iowa Sheriffs & Deputies Association, the Iowa Police Chief Association, and the Iowa Peace Officers Association are all registered in support of the bill. It’s also important to note that this bill has nothing in common with any of the “Stand Your Ground” bills that we’ve dealt with in the past (and will no doubt be required to deal with in the future), and that each piece of legislation that comes before us deserves to be judged on its own merits.

Does House File 527 have merit? Yes, in my opinion. Importantly, unlike many of the gun bills we’ve seen in the past, HF 527 was the product of lengthy negotiations between members of the (Democratic) Senate majority party and members of the (Republican) House majority party, in consultation with the Iowa Department of Public Safety and representative of Iowa’s law enforcement agencies. I wasn’t part of these negotiations, and it’s not a perfect bill, for sure, and I’d rather be voting on education bills, but … as a member of the House minority party I don’t get to pick the bills I vote on. And after careful consideration (including consideration of constituents’ emails advocating both for and against the bill) I was a yes on this bill. For your edification, I’ve set out some of the major provisions of the bill below, as well as some of my reasons for voting yes.

Creation of an electronic database:  In Iowa, permits to carry weapons are issued by each county’s individual sheriff. This bill requires the Iowa Department of Public Safety to create a uniform carry permit, and to maintain accurate records of all valid carry permits and permit revocations in a searchable electronic database, which will be accessible to law enforcement on a statewide basis. Law enforcement will be required to verify the validity of carry permits using the database, and may also use the database for authorized investigations and/or background checks. Currently, carry permits vary from county to county, and there is no good mechanism by which law enforcement officers can verify the validity of a carry permit from some other county; providing law enforcement officers with immediate access to accurate and updated information regarding carry permit holders will make it easier for law enforcement officers to protect Iowans.

Makes personal information re carry permit holders confidential: Currently anyone can request and obtain information from their local sheriffs regarding the names and addresses of carry permit holders – this bill makes that information confidential. Iowa’s newspaper and broadcasters associations strongly object to this provision of the bill – their lobbyists and columnists have declared (multiple times over the past few weeks) that people have a “right to know where the guns are.” The argument is that “if my child is spending the night at a friend’s house, I want to know if there are guns in that house” or “a victim of domestic abuse needs to know whether his/her abuser has guns for safety planning purposes” or “I have a right to know if the guy sitting next to me at the movie theater is carrying concealed.”

I acknowledge that some people might have legitimate reasons for wanting to know if a specific person owns a gun, but here’s the thing: the majority of Iowans who do own guns don’t have a carry permit, so … if your local sheriff informs you that the subject of your inquiry doesn’t have a carry permit, all you really know is that s/he doesn’t have a carry permit – which in no way guarantees that s/he doesn’t legally possess guns (maybe lots of guns) in his/her home. And the vast majority of gun murders are committed by folks who do not have and never have had a carry permit, and thus the lack of a carry permit is (or should be) pretty much irrelevant to the issue of safety planning.

So if you are sincerely worried about your child possibly being exposed to guns during a sleepover, I’d suggest that instead of calling the sheriff you’d be better off just calling up the parents of your child’s friend and asking them whether they have guns in their home – if you don’t like (or don’t trust) the answer you get, then you probably want to cancel the sleepover. And in my opinion, the safest bet for a victim of domestic violence who (understandably) wants to know whether his/her abuser has a gun is to always assume that the answer is yes, and govern him/herself accordingly.

Allows minors to possess handguns under direct parental supervision: Under current Iowa law, a minor of any age can legally possess a long gun (shot gun/rifle), and a minor over the age of fourteen can legally possess a short gun – aka a hand gun – for certain purposes under certain conditions. This bill (when read in conjunction with federal law) gives a parent/legal guardian the right to temporarily transfer physical possession of a hand gun to his/her child for purposes of farming and ranching activities, target practice, or a course of instruction in the safe and lawful use of a handgun – but only while under the direct supervision of either the parent or an instructor over the age of 21, and only on private property or a gun range. (Federal law also allows minors to possess a hand gun for hunting purposes, but I’ve been told that at least in Iowa a hunter would only use a handgun to put an injured animal out of his/her misery, or for protection from a rabid animal, so that’s not relevant to this discussion).

This provision of the bill caused many members of my caucus, as well as some of my constituents (hi mom) a lot of angst. I understand that concern, and I agree that allowing a very young child to engage in target practice with a handgun sure sounds like a bad idea, even if it’s under the direct supervision of a parent.

However, the many Iowans who contacted me to voice support for this provision correctly pointed out that as parents, they have a constitutional right to make responsible decisions regarding their children’s welfare and day to day activities, and they insisted that they are fully capable of determining if and when their children are emotionally and physically mature enough to safely handle a short gun under the direct supervision of a parent/instructor. Parents also pointed out that it’s very difficult to teach a child gun safety if the child cannot physically touch the gun. Additionally, a representative of Iowa’s Isaak Walton League testified during subcommittee that Iowa gun ranges would appreciate the opportunity to sponsor one or more of the many national hand gun target shooting competitions in which scholarships are awarded to minors under the age of fourteen – currently that’s not an option, and Iowans are at a disadvantage when competition in those competitions in other states. And, as noted above, law enforcement signed off on this provision.

So ultimately, since I do respect the right of parents to responsibly parent their children, and since I was unable to find any studies/reports/statistics documenting a statistically significant higher incident of child related shootings in the many states in which parents are already allowed to make this decision, I did not find this provision problematic enough to merit a no vote.

And by the way, regarding that nine year old girl who shot and killed her instructor while target shooting at an Arizona gun range – she was using a fully automatic sub-machine gun, which (1) is a long gun and which (2) is classified as an offensive weapon under Iowa law and thus illegal for anyone to possess. So that was a horribly sad incident for everyone involved, but it has nothing to do with this bill.

Decriminalizes firearm suppressors: Firearm suppressors (aka silencers, although they don’t actually silence a gunshot) are legal under federal law (pursuant to heavy regulation) and are legal in 39 states. Under current Iowa law suppressors are classified as offensive weapons, and thus most Iowans can’t legally own one; this bill would decriminalize the possession of a firearm suppressor in Iowa, although Iowans would still have to comply with an expensive and time consuming federal application process and background check in order to obtain one.

So why would any non-criminal want a suppressor? I’ve been told that the noise level on shooting ranges – especially indoor shooting ranges – can be very unpleasant and even dangerous; suppressors assist in reducing the noise level considerably while allowing shooters to engage in normal conversations (which is not the case with earplugs). As far as suppressors being used for illegal purposes – e.g., to facilitate murder – anyone who wants a suppressor for illegal purposes can already make one, or buy a homemade one on the black market, and there’s no evidence that the legalization of suppressors triggered an increase in shootings/murders in the 39 states that currently allow suppressors. Do I want a suppressor? No, but I don’t target shoot – plus I can’t really afford a suppressor, which range in price from about $500 to $1,500, and there’s a $200 application fee on top of that. Does anyone really need a suppressor? Probably not – but a lot of Iowans sure want one. And for Iowans who do spend a lot of time on a gun range, a suppressor might well be a reasonable investment – and since there’s no evidence that decriminalizing suppressors puts Iowans in danger, I don’t see any good reason for them to remain off limits to eligible Iowans.

Note that in addition to decriminalizing suppressors for legal purposes, this bill makes it a Class D felony for someone to illegally possess a suppressor, and a Class B felony for someone to engage in ongoing criminal conduct involving firearm suppressors. Additionally, under the bill a person who knowingly solicits, encourages, or entices anyone to transfer a firearm or ammunition in violation of state or federal law will be guilty of a class D felony, as will anyone who knowingly provides false information regarding such an illegal transfer.

Allows certified peace officers to possess a firearm on school property: Just certified peace officers – not teachers, not security guards, not private investigators, and definitely not students (who are not eligible for a carry permit under current law or under the bill).

There’s more but those are arguably the highlights. And I voted yes, because several provisions of the bill really do implicate important constitutionally protected rights (the 2nd Amendment, and the 14th Amendment’s implicit right to be left alone aka right to privacy), and I’m very protective of all of the rights set out in our state and federal constitutions. And also because Iowa’s police and sheriff associations gave the bill a thumbs up – we require and rely on law enforcement officers to protect us from gun violence, so it makes sense to look to law enforcement for guidance on these type of issues. And also because a lot of Clinton County residents emailed me and asked me to support the bill.

And I also voted yes because none of the many organizations registered against the bill (some of which I have great respect for) were able to provide any statistics or reports or evidence that any of the bill’s proposed changes to the law would actually put Iowans at risk – I heard a lot of comments along the line of “common sense says this is a dangerous bill,” but in my opinion that doesn’t justify a no vote on this type of a bill, in the absence of any documentation that any of the provisions of the bill have actually had an adverse impact on the residents of other states in which the provisions have already been implemented. Right?

Note that this bill still has to pass out of the Senate in order to become law (I’m assuming the Governor will sign it if it hits his desk), which doesn’t appear likely to happen any time soon, despite the fact that the Senate Judiciary Committee passed out a bill identical to HF 527 with little debate. So we will see.

In the meantime, it is my sincere hope that now that we have dealt with this bill – and the controversy surrounding it – here in the House, we can turn our focus to taking care of business; however, based on what we did today (spent  hours debating a bill attempting to codify exactly what a doctor must do prior to performing an abortion, regardless of the medical circumstances with which the doctor is presented and regardless of the fact that standards of medical practice are constantly changing/evolving), funding our schools and our mental health institutions and everything else that desperately needs funding doesn’t appear to be a priority of the House powers that be. But there’s always next week.

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We’re Done – Here’s What We Did …

The Iowa House adjourned earlier this morning (Thursday, May 1st) at about 4:30 a.m., after passing more bills in 12 hours than we had passed during the prior three months (ok, not really, but that’s sure how it seemed). It was the first time the “no voting in the House after midnight” rule has been waived since it was instituted four years ago, so everyone was giddy w excitement. Also w exhaustion.

The big drama was the last minute passage of Senate File 2360, the Medical Cannabidiol bill  – the House did a strikeafter amendment that made it even narrower than the Senate’s original bill, but its passage is still a big victory for the 100 or so Iowans suffering from intractable epilepsy (most of whom are children, since people diagnosed with this incredibly destructive disorder tend to die young).  Both the House and Senate also passed SF 2297, a bill addressing Iowa’s overly punitive and largely nonsensical HIV transmission laws, which was quite a surprise since until yesterday, that bill was presumed DOA in the House.

And we passed many many other bills, most of which I could go on about in great detail pointing out each one’s pros and cons but I need a nap so for now, here’s a comprehensive list of bills passed by the 2014 IA General Assembly, arranged by subject matter (i.e., by the committee in which the bill started out). This was prepared by the (fabulous) Iowa House Democratic Research Staff, but it’s totally nonpartisan … just sets out a brief description of each bill, as well as whether or not the bill has been signed into law by the Governor (and if so, when the new law becomes effective).

In the best of all possible worlds, this list would contain hyperlinks to each bill, but … it doesn’t, and while I could probably make it happen it would take me waaaay too long. So here’s a link to the Iowa General Assembly home page: https://www.legis.iowa.gov/ –  just plug in the bill number (eg, HF2459, which increases the income tax credit for volunteer fire fighters and EMS providers) into the search engine on the left hand side and it’ll come right up.

A lot of things I would have like to see pass didn’t pass, but so did a lot of things I didn’t want to see passed. In the end, the good hopefully outweighed the bad – and there’s always next year.

Thanks for all the support, past/future/present.








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If you’re a teenager with a coaching authorization (or the parent of one) – YOU WANT TO READ THIS.

So last night the Iowa House unanimously passed House File 2474: An Act expanding the criminal offense of and related penalties for sexual exploitation to include persons issued a school coaching authorization. This is a leadership bill intended to address a specific problem raised in an April 11th Iowa Supreme Court ruling – State of Iowa v Patrick Ryan Nicoletto – in which the Court held that a 30 year old assistant high school girls’ basketball coach who had engaged in an ongoing consensual sexual relationship with one of his 16-year-old players could not be convicted of the crime of “Sexual Exploitation by a School Employee” because he did not, in fact, meet the statutory definition of “school employee” – since unlike many school coaches whose are also licensed teachers, Mr. Nicoletto was… just a coach, and coaches aren’t issued licenses, they’re issued coaching authorizations. The Court’s ruling resulted in Mr. Nicoletto’s conviction for Sexual Exploitation being overturned – he’s no longer a sex offender, or a felon, which many members of the general public find troubling. And since the Court’s ruling included several variations on the theme of “hey, we don’t write the laws, we just interpret them,” there appears to be a general consensus that we (i.e., the legislature) need to fix this “loophole” right away, before we adjourn next week.

Which is where House File 2474 comes in, and we’ll get to that, but first, some background.  Actually, first I must point out that the Court’s ruling in Nicoletto did not serve to declare open season on Iowa’s children (which is certainly the way some people have been spinning it). It’s really only relevant to high school students over the age of 16, because had the player with whom Nicoletto engaged in consensual sex been under the age of 16, Nicoletto could have – and no doubt would have – been charged with and convicted of Sex Abuse 3rd degree, a Class C felony sex offense carrying a lifetime parole and sex offender registry requirement, pursuant to Iowa Code section 709.4(1)(b)(3)(d) (the “statutory rape” provision) . So the Court’s ruling does NOT give school coaches carte blanche to engage in sexual acts with the majority of Iowa’s school children – that’s already a crime, and it’s a more serious crime than Sexual Exploitation by a School Employee, and thus Iowa’s children under the age of 16 are currently protected from sexually predatory coaches (at least to the extent that criminalizing sexually predatory behavior actually deters sexual predators from engaging in that behavior, about which I have my doubts).

Now, back to the background of 709.15 (titled  “Sexual Exploitation by a Counselor, Therapist or School Employee,” but we’re only interest in the “School Employee” portion of the statute). As defined by the statute itself, a “school employee” is a “practitioner,” and a “practitioner” is defined by Iowa Code 272.1 as an “administrator/teacher/other licensed professional … who provides educational assistance to students.” So for all practical purposes, currently the crime of Sexual Exploitation of a School Employee can only be committed by a licensed teacher or school administrator (pretty much) … and since most defendants charged with the crime of Sexual Exploitation by a School Employee are teachers, for purposes of this discussion I’m just going to reference teachers.

What behavior on the part of teachers does 709.15 actually criminalize? Well, if a teacher engages in any “sexual conduct” w/a student (note that a student is defined as a student in elementary/secondary school, including an eighteen or nineteen year old high school senior and/or a person who has graduated from high school w/in the past 90 days), the teacher commits a Class D felony sex offense, w/a sentence of up to 5 years in prison, a ten year “special sentence” of parole after that, and (if the student is under 16) lifetime sex offender registry (if the student is 16 or older, it’s only ten years on the sex offender registry).

“Sexual Conduct” includes but is not limited to kissing (yes, kissing!), or touching of the clothed or unclothed inner thigh/ bust/groin/buttocks, or an actual sex act, if these actions are done for the purpose of arousing or satisfying the sexual desires of the teacher or student. It doesn’t matter if the sexual conduct is with a student from some other school district who hasn’t been, isn’t currently, and never will be the teacher’s student  – e.g., a 2nd grade teacher cannot legally date an 18-year-old senior from a high school in another county (assuming the date includes kissing).

I certainly understand the rationale behind making it a felony sex offense for a high school teacher to engage in sexual conduct w/a student attending the high school at which the teacher works – even if the teacher has never personally taught the student, and even if the student is over 16 and thus could legally “consent” to sexual conduct w/non-teacher adults. A teacher’s position of authority over students in general makes any sexual conduct between a teacher and a student attending the school at which the teacher is employed inherently coercive … i.e., it’s not a level playing field. And besides, teachers and students should be focused on teaching and learning, and not on hooking up w/each other.

Having said that, I’m not so clear on the rationale behind making it a sex offense for, say, an elementary teacher to engage in sexual conduct w/her 18-year-old boyfriend from the next county over just because that boyfriend happens to still be a high school student. Maybe better safe than sorry? Or concerns about the appearance of impropriety?  Whatever the rationale (or lack thereof) I can live with the blanket prohibition, since I’m pretty sure that all licensed teachers are at least 21, and that they’ve gone to school for a long time to learn how to be teachers, and that during that extended period of education/training one of the things that is drilled into their heads is that they should never, ever engage in any type of sexual conduct w/any student, no matter the student’s age or location, and that if they disobey this rule they will be guilty of a felony sex offense. I.e., I am confident that licensed teachers are provided with clear and repeated notice of the fact that (a) the law exists and (b) the law applies to them and (c) if they violate the law, they commit a felony sex offense … and thus by choosing to become teachers they effectively give “informed consent” to being subject to the provisions of 709.15.

So that’s the background of the crime of Sexual Exploitation by a School Employee, which the Court held did not apply to Mr. Nicoletto . And because Mr. Nicoletto was let off the hook because he didn’t meet 709.15’s definition of school employee, I’m pretty sure that the primary intent of House File 2474 was to amend  709.15’s statutory definition of “school employee”  in such a way as to ensure that in the future, if a high school coach chooses to engage in sexual conduct with a member of his team (again, the focus is on high school students and specifically high school students over the age of 16 because it’s already a more serious sex offense for a coach – or any adult – to engage in sexual relations with students under the age of 16) that coach can be prosecuted for a felony sex offense. Which makes sense – a high school coach is by definition an authority figure to the members of his team, and the balance of power between a coach and a player is at least as uneven as the balance of power between a teacher and a student, and thus any sexual relationship between the two is inherently coercive. Plus, coaches and players should be focusing on coaching and playing, and not on hooking up with one another. So yes, I agree we need to fix the Nicoletto loophole.

Unfortunately, the “fix” we passed out of the House last night (and which was passed out of the Senate today, and which will become law immediately upon being signed by the Governor within the next few days) is not, in my opinion, the best fix; like many criminal justice bills we pass, it’s a little too broadly drafted, and thus once enacted will criminalize Nicoletto-type behavior (which is good) but will also criminalize behavior that simply is not and should not be a crime (which is bad).

The problem, as it often is, is in the drafting.  HF 2474 amends Iowa Code section 709.15(1)(f)(2014) – the statutory definition of “school employee” – as follows:f. “School employee” means a practitioner as defined in section 272.1  or a person issued a coaching authorization under section 272.31, subsection 1Since all school coaches who aren’t licensed teachers must have a coaching authorization, under the bill, a high school coach will be considered a “school employee,” and if s/he engaged in sexual conduct with one of his/her players, s/he could be prosecuted for/convicted of the crime of Sexual Exploitation of a Minor. That’s the good part.

Here’s the bad part: Under the bill, it’s not just high school coaches like Mr. Nicoletto who are now considered school employees. As soon as the Governor signs HF 2474 into law, it’s anyone who has (ever?) obtained a coaching authorization pursuant to Iowa Code 272.31 who will immediately be considered a “school employee” for purposes of prosecution under 709.15. Regardless of when the person was issued the coaching authorization, and regardless of whether or not the person has ever actually been employed by a school in any type of capacity, coaching or otherwise.

And because it’s not particularly difficult or time-consuming to obtain a coaching authorization -a person must complete four semester hours of specific classes, which can be done online or through a local community college ( http://www.kirkwood.edu/coaching) –  there are a whole lot of Iowans with valid  coaching authorizations  including 170 teenagers, all of whom will be subject to prosecution as “school employees” as soon as the Governor signs HF 2474 into law.

Which creates a serious problem for these kids, since I assume that at least some, if not most, of these 170 teenagers with coaching authorizations have a boyfriend or girlfriend who is still in high school – in fact, I assume some of these kids are themselves still high school students.  And once House File 2474 becomes law, if one of these kids so much as kisses his/her high school student girlfriend/boyfriend, s/he is guilty of the crime of Sexual Exploitation by a School Employee. Period. No question about it. Even if the only coaching s/he does is on a part-time basis at the elementary school in the next county.  Even if s/he’s no longer doing any coaching at all, or has never done any coaching. If s/he’s been issued a coaching authorization, any sexual conduct (including kissing) with any high school student (even an 18 or 19-year-old high school senior) is a felony sex offense.

So overnight, enactment of this bill is going to criminalize normal teenage consensual sexual conduct (e.g., kissing) between two teenagers over the age of 16 who have never had, and never will have, any type of coach/student relationship, based solely on the fact that one of the teenagers has been issued a coaching authorization. This is clearly a ridiculous result, and it’s one that could have been avoided with a few minor tweaks to the language in HF 2474. But this was a leadership bill, on a (kind of bizarrely) fast track, and only about eight hours elapsed between the time the bill was filed and the time it was passed out of the House, so there really wasn’t much opportunity to negotiate tweaks to the bill.

I did, however, have a brief opportunity to discuss my concerns re. the over broad scope of the bill prior to final passage with a few proponents of the bill. Their response was basically that I was being silly, that yes, while many of the teenagers who have been issued coaching authorizations no doubt have significant others who are still in high school, and thus are presumably engaging in sexual conduct with a high school student on a regular basis, there’s no way that any of those kids will be prosecuted for the crime of Sexual Exploitation by a School Employee, even if they openly and repeatedly commit the crime by kissing their high school significant other in public – because of course prosecutors will choose to exercise their prosecutorial discretion and leave these kids alone. So no worries, it’s all good, no need for concern. Right?

Wrong – because assuming that all prosecutors will look the other way and ignore all violations of a specific law by a specific group of people just because it’s obviously a stupid law as applied to the specific group of people is an extremely irresponsible way to handle this problem, and I was pretty appalled that the people with whom I discussed my concerns (non-legislators, btw) even suggested it as a viable option. Prosecutorial discretion is a good thing, and an important tool, and I sure wish prosecutors would exercise it more often, but the key here is that it’s completely discretionary – and the idea that every county attorney in the state will be willing to ignore the fact that a legal adult (albeit a teen age legal adult) is committing a felony sex offense (albeit a harmless one) with a high school student on an ongoing basis is just crazy.  And of course, prosecuting a teenager as a sex offender for making out with his teenage girlfriend is also crazy, but just as the IA Supreme Court Justices like to point out (a lot) that they don’t write the laws, they just interpret them, most prosecutors tend to take the position that they don’t write the laws, they just prosecute violations of the laws. Which is a pretty legitimate position, imo.

So neither I nor any other legislator nor any other attorney should be suggesting to any teenager (or any 20 – 21-year-old for that matter) who has both a coaching authorization and a significant other still in high school that s/he should or can safely maintain this status quo once the Governor signs off on HF 2474 – since to do so would be to suggest that (1) it’s OK to commit a serious crime – i.e., to break the law –  if there appears to be a general consensus that the criminalized behavior shouldn’t be a crime, and that (2) there will be no negative legal repercussions if one chooses to do so. The first proposition is morally problematic (at least coming from a state legislator); the second is simply untrue.

So it’s all kind of a giant mess, at least for these 170 kids and their families. And, full disclosure, I share responsibility for this mess, since I voted yes on this bill (just like every other member of the legislature), despite being aware of its shortcomings, because ….  I don’t know why, exactly. I guess partly because the bill had been worked out and agreed upon in advance by both House and Senate leadership, and partly because the bill could have been (and almost was) a lot worse,  and partly because the bill actually does “fix” the Nicoletto loophole. Mostly that last one, since in the days following the Nicoletto ruling I received several emails and calls from folks back home urging me to “protect Iowa’s children” by fixing the Nicoletto loophole … and while it was pretty clear to me that these folks were being fed a somewhat ginned up/misleading version of the whole situation by someone or some organization, none of them seemed particularly interested in listening to my explanation re why the majority of Iowa’s children – those under 16 years old – were already “protected” from predatory school coaches, and why it’s important not to pass a bill that hasn’t been fully vetted just to pass a bill, because that way be dragons (aka negative collateral consequences). The folks who contacted me just wanted something done, right now, and I’m sure that was the same message that leadership was getting, only more so  – and so, we did something. Yay. And while what we did solved one problem, it created others, including this really big problem for many teenagers across Iowa.  

So: if you are a young man or woman with both a coaching authorization and a sweetie in high school, you are faced with a very difficult choice due to the imminent ratification of House File 2474 – and it’s a choice that you need to make fast. You can either (1) keep your coaching authorization or (2) keep your sweetie. You can’t keep both, at least not legally. That’s it – it’s that simple, and while it’s incredibly unfair that for no rational reason you are being forced to make this (probably extremely difficult) choice, if you don’t make the choice (which, I suppose, is also a choice), you risk prosecution for a felony sex offense. Seriously, you really do. So talk to your parents and your sweetie, and do what you need to do. Or talk to a lawyer about this and follow his or her advice. Unless he or she tells you you’ve got nothing to worry about, in which case find a different lawyer. Or call me.

Of course, those of you reading this probably don’t fall into the relevant category, because for some reason I don’t seem to have a big following amongst the young adult crowd. And since so far there’s been very little publicity about this bill and this problem (although I suspect that’s going to change quickly), I’m worried about the possibility of teenagers being charged with committing a serious crime despite the fact that they have no way of knowing that they are doing anything illegal. So if those of you who are reading this can pass this along to any young people you know who you think might have a coaching authorization (or if you can pass it along to their parents or friends) that would be great.

Bottom line, to say that this is not a good situation is an understatement, but I know that the intent of the bill was never to jam these kids up like this, and I know many of my colleagues are as concerned as I am about this situation – thus, I sincerely believe that we will be provided the opportunity to “fix the fix” next year. But until then, it’s all about mitigating and minimizing potential damage to innocent teenagers – so thanks for any help with getting the word out.     

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Why I Voted No on the Kidnapping Bill (SF 2201)

So … yesterday the Iowa House passed Senate File 2201, An Act Relating to Kidnapping and Providing Penalties. I was one of three NO votes on the bill, and my mom told me I darn well better explain to everyone back home why I voted the way I did – so here goes:

There is a tendency for us – and by us I mean the Iowa legislature – to deal with our criminal justice system and the laws that make up that system in a largely reactive fashion – i.e., a horrible crime takes place and we quickly legislate a purported “fix” that is intended to prevent a similar horrible crime from happening in the future, or at least reduce the likelihood that a similar horrible crime will happen in the future. We draft and pass these bills in good faith, with the very best of intentions, often at the request of or with the support of a victim of one of these horrible crimes, or the family of a victim. Unfortunately,  as a result of operating in crisis mode so much of the time, over the years our criminal code and sentencing structure has evolved (or devolved) into an overly complicated, convoluted and often inconsistent entity – one that (in my opinion) focuses primarily on locking people up for as long as possible and ignores the fact that sooner or later, for better or worse, the vast majority of prison inmates are released back into the community.

Across the country, state legislatures have begun to accept that this type of strict “tough on crime” stance isn’t necessarily the best way to keep their people safe. Here’s a very detailed overview of early (2011) efforts at “smarter safer sentencing” reform; here’s a recent February 2014 article with updates re various states’ sentencing reform successes. Over the past several years it’s become relatively widely accepted that by focusing on an evidence based approach to criminal justice and sentencing laws, states can achieve  lower crime rates without increasing (and in many cases actually reducing) their Department of Corrections budget appropriations.

However, the only way this type of success story can happen is if all of a state’s relevant players – leaders from the legislative, executive & judicial branch, as well as reps from the DOC, DPS, law enforcement & community based corrections etc. – are willing to make a good faith, long term commitment to working together in a nonpartisan manner and (and this is crucial) promise to refrain from throwing each other under the bus at the first hint of problems. As a first step (kind of) towards such a partnership, the Iowa General Assembly, during its 2010 legislative session, created the  Public Safety Advisory Board (PSAB).

The PSAB is a nonpartisan organization made up of representatives from the judicial, executive, and legislative branches, as well as representatives of law enforcement, the Attorney General and County  Attorneys Association, the Public Defender, the Department of Corrections, the Department of Drug Enforcement, citizens, victims’ rights advocates, and others w/specialized knowledge of the criminal justice system. The PSAB’s statutory purpose- it’s raison d’etre – is to provide the General Assembly with research driven, evidence based analysis and evaluation of current and proposed criminal code provisions, in order to facilitate improvement in the criminal justice system in Iowa in terms of public safety, improved outcomes, and appropriate use of public resources.  I am a big fan of the PSAB – its very existence is an acknowledgement on the part of the General Assembly that being elected to public office doesn’t suddenly make one an expert on everything, and that when it comes to something as important as public safety, it makes sense to ask the experts for their opinion, and to give the experts’ opinions at least some consideration.  Of course, in the end the legislature can pass what it wants to pass, regardless of any recommendations by the PSAB – but at least we’ll have a better idea of the pros/cons/possible long term collateral consequences of whatever path we choose to take.

So anyhow, back to the Kidnapping bill …. in July of 2012, in response to the horrific crimes carried out by Michael Klunder (who abducted two little girls and murdered one of them), the Iowa Legislative Council (made up of the leadership of the Iowa House and Senate) asked the PSAB to evaluate the effectiveness of Iowa’s current kidnapping laws, and also to provide specific proposals for legislation to increase the DOC’s ability to keep predators like Klunder locked up. At the time, I was impressed and encouraged by the fact that instead of drafting up a bunch of bills that simply quadrupled the penalty for all kidnapping offenses, leadership was willing to seek nonpartisan, evidence based advice on how to best improve the system, and I really looked forward to reading the PSAB’s report.

Which I was able to do in January of this year, when the PSAB submitted its 35 page report on Iowa’s kidnapping laws to the Legislature. (It starts on page 84 of this PDF document)   The report contains a detailed analysis of Iowa’s kidnapping laws as well as an interesting discussion of the Klunder case; it also contains several recommendations re possible options for amendments to current law, which recommendations are supported by extensive data and research and which were approved by vote of the PSAB after considerable discussion.  Two of these recommendations are embodied in Senate File 2201 – increasing the penalty for non-custodial child kidnappings (from a C felony to a B felony) and enhancing the penalty for repeat kidnappings. Now, I’m not convinced that simply bumping penalties up a level is the best way to keep Iowans safe, but …. I recognize that SF 2201 is the product of a nonpartisan, evidence based attempt to address a serious problem, and so I was prepared to vote yes on the bill when it came over to the House after being voted out of the Senate unanimously.  (Here’s the Senate’s version of SF2201).

Unfortunately, when SF2201 ran in the House, an amendment was attached that, among other things, contains a provision that eliminates earned time for some prison inmates convicted of some crimes, but only if the victim is below the age of 16.  This was NOT a recommendation set out in the PSAB report, probably because it really doesn’t have anything  much to do with kidnapping;  thus, the effectiveness of such a change in the law – and the possible negative collateral consequences of instituting such a policy on a piecemeal basis – has not been researched or evaluated by anyone.

And that vetting process really needs to happen, because several years ago a majority of the Iowa General Assembly voted in favor of creating the current DOC earned time policy, and the Governor signed off on it – and I have to assume all those public servants acted in good faith and for valid reasons. I don’t know all of those reasons, and I don’t know whether or not those reasons are still valid, and neither does anyone who voted in favor of the amendment, because no one who would have that information was ever asked to comment on the amendment, at least not officially. What I do know is that Iowans would be better served if we allow the PSAB to do its job, and provide the legislature with a nonpartisan evidence based analysis of the pros and cons of Iowa’s current earned time policy, as well as recommendations as to whether and in what manner it should be changed.  Because as much as I wish it wasn’t the case, when it comes to the criminal justice system, sometimes the easy fix isn’t the best fix, or even a good fix. Sometimes straightforward “common sense” policies actually end up making Iowa a less safe place to live –  e.g., the 2000 foot residency restriction for sex offenders, which was eventually amended based on evidence that the law actually made sex offenders more difficult to monitor

So that’s why I voted no on the Kidnapping bill – not because I don’t agree that we need to protect our children from predators, but because the House’s version of the Senate’s bill contains an amendment that hasn’t been vetted by anyone who actually works in, or with, or has any level of expertise re, our criminal justice system … and I believe that we owe it to everyone involved (including the people of Iowa) to do our due diligence before we do away with (kind of, sort of, for some inmates) a major component of DOC policy.

And hopefully we’ll have an opportunity to do our due diligence: SF2011, as amended by the House, has been sent back to the Senate, and the Senate can either accept the amended bill or “insist” on its own version (i.e., the one that doesn’t include the provision eliminating earned time for a limited number of inmates/crimes). If the Senate insists on its version,  the bill will eventually end up in a conference committee composed of members of the House and Senate, who will try to reach an agreement as to what the ultimate bill should/shouldn’t contain.  Assuming that happens, I hope what emerges is the Senate’s version of the bill, with the addition of a provision directing the PSAB to provide the General Assembly with a detailed report that analyzes and evaluates  Iowa’s current DOC earned time policy and its efficacy, including recommendations re what changes, if any, should be made to Iowa’s laws dealing with earned time.

And I assure you of this: if that PSAB report concludes that Iowa’s earned time policy is no longer serving any valid purpose, I’ll be the first one to vote to eliminate it – but for all inmates, not just those inmates that victimize children. Because like every other member of the General Assembly, I want to pass responsible laws that make Iowa a safer place to live for everyone  – after all, everybody is somebody’s child, right?

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