Invasion of the Judicial and Legislative Branches

On Monday, July 16, Governor Terry Branstad issued a commutation to 38 of Iowa’s lifers.  That group of lifers consists of those felons who are serving a sentence of life without the possibility of parole for crimes they committed as juveniles.

In a sweeping motion, the governor commuted the life sentences of all 38 individuals to a minimum term of sixty years, with no possibility of parole during that initial 60-year sentence.  Immediately, the decision raised questions that keep coming.

Can he do that?  That will be up to the courts to determine, and the governor’s decision will be challenged.  The Iowa Constitution gives the governor the power to commute a life sentence to a number of years, and it is backed up by statutory law.  However, that’s about where agreement on the governor’s limitations ends and the questions begin.

A Des Moines Register editorial said that the governor took the power “to be judge, jury and sentencing court all in a single act.”  He did more than that.  He created a new punishment – minimum sixty-year sentence without the possibility of parole.  He created a sentencing scheme that disallows a former juvenile to serve anything but a life sentence.

To begin with, nowhere in the Iowa Code is there a sentence of sixty years. In creating the 60-year term Governor Branstad usurped the power of the Legislature.  This determinate sentencing scheme is a power left solely to the Legislature.  Where did the governor come up with 60 years?  This is a discussion that must be left to the general assembly.

Next, the governor has the power to commute life sentences to a term of years, but there is no provision that allows him to place a caveat on that sentence, such as a limitation on how much time must be served before the Parole Board may consider releasing the individual.  In this regard, he has usurped the power of the Legislature, the courts, and tied the hands of his own Parole Board.

“The power of the governor under the Constitution of the State of Iowa to grant a . . .  commutation of sentence . . .  shall not be impaired.”  Yet, the Legislature has placed limitations on that power.  It has required that a person may “no more frequently than once every ten years, make an application to the governor requesting that the person’s sentence be commuted to a term of years.”  And, the Legislature has defined a process for commutation.  The governor ignored the process in delivering his commutations.  “The director of the Iowa department of corrections may make a request to the governor.”  “[T]he governor shall send a copy of the request to the Iowa board of parole for investigation and recommendations as to whether the person should be considered for commutation.”  And Parole Board must “conduct an interview of the class “A” felon and shall make a report of its findings and recommendations to the governor.”

That entire process was deliberately ignored as the governor conducted a political sidestep in which his only basis for commuting the sentences was for the safety of Iowans and to ease the pain of victims.  Neither of these reasons is included in the statutory process under Iowa Code Chapters 81, 331, 902, 904A, and 914.

In Miller v. Alabama, the United States Supreme Court held:  “By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard­less of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual pun­ishment.”  Governor Branstad looked only at the first part of the holding – lifetime incarceration.  He failed to take into account that the decision also requires a process.  Iowa has that process.

“Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”  The governor, playing the role of judge or jury, has failed to consider individualized mitigating circumstances before he made his sweeping motion of commutation before any of the offenders had a real opportunity for commutation as it is designed in the Iowa Code.  He broke the spirit of the law, and the spirit of many lifetime offenders who had a ray of hope.  Not all of these offenders are “dangerous”, as Branstad proclaimed.  Some are; others have made a real effort at rehabilitation.  There should be a distinction made on the merits of each case as presented to the Board of Parole.

Serving a minimum of sixty years means that one of these targeted offenders must have to be in their mid to late 70s to even begin the process of parole.  In Iowa, the typical lifer who leaves the Iowa prison system (by death or other means including appeal) leaves after 16 years (median) of incarceration.  The average lifer who dies in prison, dies at a median age of 56.  So a sixty-year sentence is really nothing more than a life sentence.

Governor Branstad did nothing to comply with the United States Supreme Court.  He did everything to promote his prospect for reelection.

Citations to the Iowa law mentioned above are available by sending an email to:  insight@iowappa and placing “Citations please” in the subject line.

© Copyright 2012.  Fawkes-Lee & Ryan.  All rights reserved.

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