Anderson v. State

Last week, I came face to face with a great example of why our prisons are bulging to the point of needing elastic.  A Des Moines Register article quoted Polk County Attorney John Sarcone, saying that he is going to ask the Iowa County Attorneys Association to lobby for a change in the law that will alter the way “time served” credit is given to probationers who violate the terms of their probation.  Depending upon what specific change Sarcone is seeking, it’s either benign or very bad.  The effect of the amended change that Sarcone might like to see could very well swell the prison walls beyond the point of bursting.  Here is the problem, the knee-jerk reaction, and a sensible solution.

In Anderson v. State, the Iowa Supreme Court was faced with the question of whether the defendant, Michael Anderson, should receive credit for time served after his probation had been revoked.  At the time, he was on house arrest and being monitored with an ankle bracelet.  Anderson’s probation was revoked after a naked 16-year-old girl was found under a bed in his home.  Anderson was on probation because he pled guilty to enticing a minor away back in 2004 and was sentenced to two consecutive 5-year terms.  The sentences were suspended and he was placed on probation for five years on each count.

After his sentence was handed down in 2004, Anderson spent a year undergoing sex offender treatment while residing at a treatment facility.  There were several conditions of his probation, one of which required him to stay away from children age sixteen or under.  A year after his release from the treatment facility he had contact with a sixteen-year-old girl, which eventually led to the revocation.  Anderson sought credit for the time served while on house arrest.  The district court allowed for the time served while in the treatment facility, but not while he was on house arrest.  The Iowa Supreme Court disagreed and held that the “plain language of Iowa Code section 907.3(3) entitles Anderson to sentencing credit for the period of time he was committed to the DCS [Department of Correctional Services] for electronic monitoring and home supervision.”

We’re not sure about what changes in the law Sarcone might be seeking. The newspaper article also referred to a statement made by Kevin Cmelik, the director of the criminal appeals division at the Iowa attorney general’s office.  Cmelik believes that the “ruling could result in county attorneys recommending less probation and more prison time, and longer probation periods for offenders.”  This is the knee-jerk reaction.  Changing an entire sentencing scheme based upon the actions of one bad actor is not an appropriate manner of addressing faults in the criminal justice system.      

Electronic monitoring of convicted sex offenders who have a history of offending children has never been an advisable sentence.  Uncle Bob may be at home wearing his ankle bracelet, but that might be all Uncle Bob is wearing.  I’ve said that many times over the course of lobbying these issues.  Evidently, no one listened.  But the problem is not with electronic monitoring, nor is the solution.

The problem is calling for more prison time and less probation time, which Cmelik mentioned.  We can work with the county attorneys if they address the specific issue in Anderson and refrain from seeking solutions that go beyond the minor repair that needs nothing more than a tiny plug.  What goal would be obtained by closing the opportunity for probation for many offenders based upon the stupidity of one?  Last week in this space, Stephanie Fawkes-Lee made the satirical statement of “better to lock up a hundred innocent people rather than let one guilty person go free.”  The satire continues.  They may not be innocent, but there are offenders who feel remorse, who feel guilt, and who feel abandoned by society because of the “lock ‘em up and throw away the key” mentality.  Is it better to lock up a hundred offenders rather than place one on probation?

We believe that time served should be credited to those who spent time in a treatment facility, a jail, or other detention facility, whether it’s presentence, pre-trial, or post sentence.  Time served should stop the minute a person on probation violates the provisions of the probation.  That’s all that needs to be amended.  This is not a time for grandstanding and placing an enhanced burden on our state prisons.  That is, unless the counties prefer to help pay for the cost of incarceration in our already overcrowded prisons.