Invasion of the Judicial and Legislative Branches

Posted on July 26, 2012 by Marty Ryan

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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Jumping Off Perfectly Good Bridges

Posted on July 11, 2012 by Marty Ryan

Chucky Lewis jumped off the Boyer River Bridge when I was a kid.  Perhaps more of us kids in town would have jumped as well, but the Boyer River running alongside the town of Vail is only about a foot deep most of the year and the jump is at least thirty feet from the bridge railing to the water’s surface.  Chucky didn’t do it just because he was nuts; a few kids in town told him everyone did it.  So, being the gullible bully he was, he tried it.  Thankfully, he didn’t get hurt.

Unfortunately, on Tuesday, July 3, a boy in Linn County, Iowa wasn’t as lucky.  He broke his leg jumping off the Paris Road Bridge near Central City into the Wapsipinicon River.  This sport, if it’s all right to call it a sport, is dangerous.  An official with the Linn County Sheriff’s Office made a point when he said that bridge jumping could lead to a spinal injury, and the jumper would never be able to swim back to shore.  That’s possible.  But is that a reason to prohibit the activity?  Driving a car can be dangerous, but we don’t prohibit driving because someone may get killed or seriously injured.  Jogging can lead to injury, but we don’t regulate the sport.

A year ago, the Linn County sheriff wanted a county ordinance to make bridge jumping illegal.  He based his intentions on the potential hazards and several complaints from citizens. Some jurisdictions throughout the United States and the world have ordinances or statutes prohibiting bridge jumping, so his desire for the prohibition was nothing new. The Linn County Board of Supervisors considered the ordinance, but voted it down.

The proposed ordinance would have fined a juvenile $100, while an adult’s penalty would cost $650 and a possible 30-day jail term.  John Harris, a supervisor from Palo, questioned the practicality of the ordinance by noting that it’s “going to be very difficult to enforce.  By the time the sheriff’s deputy arrives, they’ll be picnicking on the sandbar, and there will be no activity to cite.”  He’s correct.  Another supervisor, Brent Oleson from Marion, stated that he didn’t see a concern, “as long as they’re not hurting others.”

The supervisors took a sensible approach.  There is not much that can be accomplished by banning fads, especially when a thrill is involved.  I was a kid, and I was thrill seeker.  I know that to get around this you set up a couple of others to watch for law enforcement.  If a sheriff’s deputy comes along you give a signal, and everyone goes to the sandbar for a picnic.  Creating a law prohibiting such activity makes the activity more enticing.  The activity becomes the forbidden fruit.  It’s not just a thrill to jump off the bridge, but because it’s prohibited, the thrill is enhanced.  And thrill seeking is what bridge jumping is all about.  As if jumping from a bridge into the water below isn’t enough of a thrill, it can be recorded and broadcast all over the Internet via YouTube.  The excitement of having others across the world view the feat of what has been accomplished is an additional pleasure.  Make it illegal and it adds a few drops of adrenaline to the blood stream.

People have probably been jumping off bridges since the first one was built.  If an ordinance had been adopted last year in Linn County, would kids who were with the boy who broke his leg run from the scene to avoid a $100 fine?  Very likely, remember, they’re kids, not adults.  Reactive laws can lead to greater tragedies.

Kids used to break legs and arms all the time.  It was like wearing a plaque, a medal, or a trophy.  The alternative is to prohibit any activity that may be hazardous to kids and watch them get fat sitting at home watching the “tube”, or today, “YouTube”.

Fawkes-Lee & Ryan is committed to preventing reactive statutes from becoming law.  But it’s a difficult job trying to prevent law enforcement from protecting everyone from themselves.  That’s our challenge.

Many people who have written about bridge jumping have included the old cliché:  “If everyone else was jumping off the bridge, would you?”  I guess that many mothers have questioned their children in this way.  Mine didn’t.  Maybe she knew about Chucky Lewis.

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Falsity and Nothing More

Posted on June 28, 2012 by Marty Ryan

While most Americans were looking forward to what the United States Supreme Court had to say about the Affordable Health Care Act (ObamaCare), another significant case was handed down a few minutes earlier.  United States v. Alvarez didn’t receive as much attention, probably because everyone can relate to health care; not many can relate to a liar being punished for claiming he is something he is not.

Associate Justice Kennedy, in his opening statement of the case, wrote that “[l]ying was his habit.”  He was referring to Xavier Alvarez, who told a few whoppers in his life, like playing hockey for the Detroit Red Wings (not true), and marrying a starlet in Mexico (not true), but none quite like the stretch that he told a water board to which he was recently appointed.  Alvarez claimed that he was 25-year Marine, was wounded by the same guy more than once and that he “was awarded the Congressional Medal of Honor” in 1987.  That lie got him a federal charge of stealing valor.

Is lying protected by the First Amendment?  Well, yes and no.  In this case, Chief Justice Roberts agreed with Justices Kennedy, Ginsberg, Sotomayor, Breyer, and Kagan (Breyer & Kagan concurring in the judgment) that “prior decisions have not confronted a measure like the Stolen Valor Act, that targets falsity and nothing more.”

Yes, the Court has determined previously that there are times in which lying is a crime.  Take perjury, for instance.  But those other circumstances are not in the best interest of justice, are for pecuniary gain, or damage the reputation of a particular individual.   “Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. . . . Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”

The Court addressed the patriotic concerns, also.  It recognized the Medal of Honor as an award held “in its highest respect and esteem [to] those who, in the course of carrying out the ‘supreme and noble duty of contributing to the defense of the rights and honor of the nation’ have acted with extraordinary honor.”  But the Court properly noted that fundamental “constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.”  This acknowledgement is a concept that is lost on so many who believe that being patriotic means upholding the Constitution only when it’s convenient for the majority.

“The remedy for speech that is false is speech that is true.”  Not a law by the government prohibiting false speech.  “This is the ordinary course in a free society.  The response to the unreasoned is the rational; to the unin­formed, the enlightened; to the straight-out lie, the simple truth.”  “The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,”

The decision left a lot of thought for the intellect:  “Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth.  Truth needs neither handcuffs nor a badge for its vindication.”  We should be proud of our society and our republic.  We have the collective sense to understand that once the government that can punish you for lying about a matter such as being awarded the Medal of Honor; it can begin to punish politicians for not telling the “absolute” truth.  You may think that’s funny.  But seriously, our government is so huge that it is impossible for a single member of Congress to know everything, much less the President of the United States.  And on some occasions, the truth may be stretched as it comes from a lowly researcher up the ranks to the top advisors.  It’s happened – with all Presidents.

Kennedy closed the opinion with this powerful statement:  “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find re­spondent’s statements anything but contemptible, his right to make those statements is protected by the Consti­tution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.”

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Education: The Next Generation

Posted on June 7, 2012 by Gregg Marxen

Eight states have recently been approved to receive waivers from the No Child Left Behind Act, bringing the total states to 19 with an additional 18 applications still under review. Why would states need waivers from the No Child Left Behind Act? Maybe it has something to do with the fact that it has been extremely ineffective. Not only has it significantly restricted teachers from educating children, but test scores in the United States have still lagged behind other nations since its inception. This should come as no surprise to most of us. Requiring ridiculous standards to test children is clearly not a solution to education. We should focus our attention on the methods being used to educate children.

In the 21st century, with the advent of the Internet, computers and software, why are we still using obsolete methods to educate our children? Textbooks are still a major way of communicating information to students. Clearly there are more efficient ways for children to learn. I believe using computer software to educate younger children is the best possible choice. This would allow children to garner more information in a shorter period of time. Computers would grade the students’ tests, freeing up teachers’ time. Students could learn geography and science with game and puzzle programs at a younger age. Teaching different languages to younger students is also a possibility.

Textbooks contain a limited amount of information that becomes outdated almost immediately, given the number of discoveries occurring every year. But computer software can contain much more information than a textbook, and also can be updated unlike a textbook and at a cheaper cost. Software allows education to be more interactive than a regular textbook. Plus it can contain videos, games, assignments and links to informative websites for children to carry out additional learning. Imagine biology classrooms having kids explore human anatomy, or learn about the inner workings of DNA and the human cell by using visually interactive software. Computer programs offer so much more than textbooks and standard teaching methods.

Using Skype to link classrooms in the U.S. with classrooms in other participating countries could open up a whole new avenue for learning. Envision children being taught by teachers in other countries and interacting with children in those countries. Translation software can allow children in the U.S. to communicate with children in other countries. This would allow students to experience the beliefs and culture of other countries making them more informed about these countries.

Computer software would become the primary tool for educating students in the United States. This has the advantage of making education more enjoyable for children, and allowing schools to store much more educational information in a smaller space. School media centers would no longer carry physical books, but computers, discs and other electronic forms of storing information. Students could checkout books online from their school library and download them onto their computer or iPad from home.

In the age of computers and the Internet, it is ridiculous to think that we are still using such primitive methods to educate our children. Thick, heavy textbooks are filled with information that could be more efficiently contained electronically.  Scantrons (which are already obsolete) would be a thing of the past, as well as cumbersome textbooks. Teachers would have more time to devote to students and answering any questions they have about the material being taught. It’s time we stop thinking about the amount of money we spend on education and instead think about where that money should be spent. Computers offer a much more effective means to educate students and I think investing money in them will bring better results.

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

 

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Suicide by Cop; The Sequel

Posted on May 29, 2012 by Marty Ryan

One of the first blogs written by us [Fawkes-Lee & Ryan] (two years ago) was entitled “Suicide by Cop”.  It garnered more comments than anything we have written since.

The blog is about three incidents in which law enforcement came close to emptying their ammo cartridges on a particular suspect.  One of those suspects was Randall D. Kimsey, 50, Ogden, IA.  This past week his family filed a lawsuit against the police who killed him.

In 2010 we wrote:

This past May police were called to a residence in Ogden, IA after a neighbor accused the man in the residence of making harassing phone calls.  When police arrived at the residence in question, the accused answered the door with a handgun.  The reactive police force went into panic mode and cordoned off the house, evacuated neighbors, and after a ceremonial waiting period, entered the house.

“Randall D. Kimsey 50, had been suicidal in the past and authorities were worried that he had taken prescription drugs,” The standard operating procedure for a suicidal citizen appears to be what occurred next.  A SWAT team entered his home in full gear and shot Kimsey to death.  Police took the moral road of shooting Kimsey to protect him from committing suicide.

In a recent Des Moines Register article, more facts come to the surface.  When a sheriff’s deputy went to the door to make the contact about harassing phone calls, Randall Kimsey was asleep. The deputy “demanded” that Kimsey’s wife wake him up.  When Kimsey came to the door one of the officers yelled, “gun!”  Kimsey went back to bed.

This entire episode was ridiculous if it hadn’t been for the death of Randall Kimsey.  Kimsey’s wife, who obviously didn’t feel in danger, was persuaded to leave the house and “was taken into custody”.  The neighborhood was evacuated.  Law enforcement attempted to negotiate with Kimsey.  Why?  The man has every right to own a gun.  All he did was come to the door with a gun in his hand.  Maybe I’m missing all the facts, but there was no need for law enforcement to enter the house (without a warrant – there was certainly enough time to acquire one) and set off percussion flash bombs – several, and expect a man to not be afraid for his life.  I really believe anyone in that predicament might shift into a survival mode.

The SWAT team went upstairs and deployed another flash bomb and Kimsey came out of the bedroom while “allegedly carrying a gun.”  He suffered 14 bullet wounds.  “Six officers left at least 33 shell casings at the scene.”  Maybe this is not a good choice of words, but it was definitely “overkill”!

I hope Lori Kimsey wins this lawsuit.  Probably, it will be settled out of court.  But law enforcement training and decision-making needs improvement.  The CATO Institute has published a booklet [white paper] entitled “Overkill:  The Rise of Paramilitary Police Raids in America.”  I don’t expect everyone to run out and purchase a copy, but the opening paragraph in the Executive Summary says most of what you may already know:

Americans have long maintained that a man’s home is his castle and that he has the right to defend it from unlawful intruders.  Unfortunately, that aright may be disappearing.  Over the last 25 years, America has seen a disturbing militarization of its civilian law enforcement, along with a dramatic and unsettling rise in the use of paramilitary police units (most commonly called Special Weapons and Tactics, or SWAT) for routine police work.

There is so much wrong with this story.  And the sheriff doesn’t help himself by stating that he shouldn’t comment at this point, but that he has “a lot of things that come right to my head based on what you’re telling me.”  It almost sounds premeditated.

I said it in 2010, and I’ll say it again:  “Today’s modern police officer has a Glock in the holster, mace, flashlight, handcuffs, radio, tactical gloves, ammo, combat knives, and batons.  SWAT teams are not afraid to use those “tools’ when communication breaks down.  It’s too bad that patience is not strapped to that utility belt as well.”

The 2010 blog is posted online yet at:  https://iowappa.com/?p=103 Suicide by Cop

 

 

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Anslinger’s Allies

Posted on May 16, 2012 by Marty Ryan

Shortly after being elected, President Obama instructed the Department of Justice to stop going after people who were using marijuana for medicinal purposes.  That directive didn’t last very long.  Today, the Drug Enforcement Agency is busier than ever hauling in otherwise innocent people for doing something that their state law allows – relieving their pain with the aid of a natural herb.

Representative Dana Rohrabacher [R – CA46] introduced an amendment to H.R. 5326, the Commerce, Justice, Science, and Related Agencies Appropriations Act, which would “prohibit the use of funds to be used with respect to preventing the States of Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”  Rep. Rohrabacher was joined in sponsoring the amendment with Rep. Maurice Hinchey [D – NY22], Rep. Tom McClintock [R – CA4], and Rep. Sam Farr [D – CA17].  Urban, rural, Republican and Democrat.

The amendment had nonpartisan and diverse flavor.  It failed to pass 163 – 262 (Roll no. 238).  The only member of the Iowa delegation to vote in favor of the amendment was Rep. Dave Loebsack [D – IA2].  Reps. Bruce Braley [D – IA1], Tom Latham [R – IA4], Leonard Boswell [D – IA3], and Steve King [R – IA5] voted against the amendment.

Sixteen states and the District of Columbia have approved marijuana for medicinal purposes.  Two other states have legislation pending before their governors (New Hampshire and Connecticut).  Polls have shown repeatedly that approving marijuana for medical purposes run in favor of the concept, from 51% to 80%.

What is it that 4 out of 5 members of Congress from Iowa don’t get?  Do they actually approve of tax-payers’ dollars going to the armed DEA raids that bust a middle-aged woman with multiple sclerosis?  Do they still think that marijuana will do all the things that Harry Anslinger claimed?

There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, results from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.  – Harry Anslinger, 1937 testimony before Congress.

Rohrabacher’s amendment was nothing more than telling the DEA that it should quit wasting time and money going after individuals and small businesses who are abiding by their respective state laws.

Perhaps the money would be better spent training the DEA about a certain document called the U.S. Constitution, particularly Amendment X:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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