We Have a Problem

Posted on September 12, 2011 by Marty Ryan

The Department of Corrections (DOC) is recalculating sentences for approximately 3,444 offenders in Iowa prisons after the Iowa Supreme Court ruled in Anderson v. State that a probationer may count the time in which he was “committed to the DCS [Department of Correctional Services] for electronic monitoring and home supervision” as earned time.  Earned time is that amount of days that is subtracted from an inmate’s sentence for good behavior.  It appears as though the DOC had been requiring probationers to start their sentences all over again once probation was revoked and the violator entered prison.

3,444 inmates must have their sentences recalculated.  There are approximately 8,800 Iowa prisoners incarcerated in the various correctional facilities across Iowa.  You can do the math, but it amounts to roughly 40% of the offenders that may have their sentences reduced.  The DOC, county attorneys, and others are screaming that “the sky is falling”.  They’re concerned that these offenders might be released into society.  I hate to bring this up, but wasn’t the offender a threat to society when he or she was on probation?  What’s different?

A huge concern for the DOC is the fact that many of these offenders will be released without supervision, without rehabilitation, and without services.  Shall we blame the courts for a problem that exists with our prison system?  When I began this essay with the statement that “we have a problem” I wasn’t referring to the problem seen by DOC, the county attorneys, etc.  No, I’m claiming that the problem is with the manner in which services are provided to offenders lying in waste within the walls of our state’s correctional facilities. 

There are three primary reasons for incarcerating offenders: Punishment; rehabilitation; and societal protection.  The first and third reasons are no-brainers.  Rehabilitation should be a constant goal because over 90% of offenders will be released back into society at some time.  The DOC’s mission statement states that:

Offenders under our supervision participate in rehabilitative programming, including basic education, mental health and substance abuse treatment, life skills, victim empathy, and work experiences. Beginning with their first day in prison to their last day of community supervision, our reentry planning and coordination is designed to assist offenders’ successful reentry into society and to reduce the likelihood of future victims.

The statement says that this all takes place from the first day in prison.  But that’s not true.  If it was true, why would the sky be falling?  Most programs are placed on hold until the offender gets nearer to a release date.  True, some educational and life skills programs are available once an offender has been transitioned into the system.  But often, substance abuse treatment and especially work experience programs are delayed until an inmate is closer to being released from incarceration.  Therein lies a problem. 

Rehabilitation, including substance abuse and alcohol abuse issues need to be addressed up front – from the beginning.  A person who is going to be incarcerated for five years will claim that they don’t have a problem after 3 years.  “I don’t have a problem; I haven’t used for 3 years!”  One of the first steps toward recovery is an acknowledgement that a person has a drug or alcohol problem.  Waiting until a person is about to be released before being admitted to a rehabilitation program can only serve as fertilizer for denial.  Treatment needs to be addressed immediately if it is to be effective.  If those 3,444 offenders who may be released earlier than expected had been receiving treatment, life skills, and victim empathy from the first day they entered the Oakdale facility, the job of rehabilitation would be complete (or near complete) and protecting society would fall into order.  

Yes, we have a problem.  It needs to be fixed from the inside.  It’s time to quit blaming the courts and the legislature and perform the mission as stated.  “Beginning from the first day . . . “

 

© Copyright 2011  Fawkes-Lee & Ryan.  All rights reserved. 

Posted in Criminal Justice, Issues | Tagged , , , , | 1 Comment

A Wise Decision

Posted on September 1, 2011 by Marty Ryan

Lawyer jokes exist because almost everyone has had to reach out to an attorney at some time in their life to settle differences, defend their honor, or interpret a legal matter.  Attorneys are a part of life.  Almost everyone can relate to an experience with a lawyer, and the familiarity and wide scope of services offered by attorneys breeds a fertile playground for jokes. But attorneys take a bad rap.  The standard for ethical conduct required of lawyers is the strictest of any profession.  Iowa’s Code of Professional Responsibility for attorneys sets a high bar (no pun intended).

As a paralegal, I must know and abide by those same canons listed, with a small departure on the ones that pertain to lawyers only.  Because I’m familiar with the integrity of the profession, it came as a shock to me when the Office of Professional Regulation recommended a proposal to allow attorneys to voluntarily suspend their licenses and keep the reasons for doing so a complete secret.

On Friday, August 26, 2011, the Iowa Supreme Court announced that it had considered the recommendation of the Office of Professional Regulation (allowing an attorney to voluntarily suspend his or her license to practice law and keep the information about the suspension confidential).  The Court considered the proposal, but rejected it; and rightfully so.

There are numerous reasons why an attorney may want to voluntarily suspend a license to practice law.  The attorney may want to go into business with a non-lawyer, and the business may border on a legal practice without actually practicing. 

An attorney may enter into another field of employment and maintaining a law license may be impractical.  The attorney may not wish to attend the required continuing legal education, a requirement that could be costly amount to sacrificing several hours of time.  Attorneys also have to pay fees to the Client Security Fund.  But a lawyer may choose to suspend a license that could have an adverse effect on the public. 

A lawyer may choose to suspend his or her license for reasons that the public has a right to know.  The most dangerous reason for wanting to keep a voluntary suspension quiet is to avoid publicity of a disciplinary prosecution.  The public has a right to know when lawyers are being punished, and for the grounds surrounding that punishment, even if the punishment is a slap on the wrist.

The Court made a wise move by rejecting the proposal.  We need more transparency in government – not less.  There is no need for those who practice law to be the butt of more jokes. 

 

 

Posted in Issues, Open Meetings/Public Records | Tagged , , , , | 1 Comment

Get the Lead Out or

Posted on August 22, 2011 by Marty Ryan

A Tale of Two Bills

Once upon a time there was a hunter who wanted to bring young relatives raccoon hunting.  So a law needed to be passed that allowed children to go raccoon hunting with their parents’ permission.  The Iowa Senate agreed that this would be a good law and passed a bill that would allow a resident under the age of sixteen to go raccoon hunting with any “competent adult with the consent of the minor’s parent or guardian, . . . so long as the minor is not hunting and does not carry or use a firearm or other weapon.”

The Senate passed this good law with unanimous support and sent the bill to the Iowa House for their blessing.  All appeared to be honest and good at the Iowa Capitol.

But, unknown to the trusting citizens of Iowa was a dark force at the Iowa Capitol determined to circumvent the system to pass a bill allowing hunters to shoot mourning doves with the dreaded lead shot—a deadly poison to children and wildlife including the American symbol for freedom—the Bald Eagle.  Since the Iowa House ran into obstacles for passing the coveted dove hunting bill, an evil plot developed.  The raccoon-hunting bill was amended by the Iowa House in a manner not often seen.

By using a current law that allowed for the hunting, possession, disturbance, and killing of “gray or fox squirrel, bobwhite quail, cottontail or jackrabbit, duck, snipe, pheasant, goose, woodcock, partridge, coot, rail, ruffed grouse, wild turkey, pigeons, or deer,” the dark force added the words “mourning dove” to fit right in between “partridge” and “coot”.

Wait a minute.  What happened to the hunting of raccoons?  A point of order was justifiably raised that the amendment was not germane (meaning pertinent, relevant, or related to the issue).  So, the Iowa House voted to suspend the rule in order to pass the bill.  The bill allowing a youngster to hunt raccoons with grandpa now morphed into a companion bill to SF 464, “an act allowing the establishment of an open season for hunting mourning doves.”

Using this procedural maneuver, in which the dove hunting bill from the Senate wouldn’t have to face the agony of going through another committee meeting in the House, the two companion bills become twins.  This means that the Senate legislation allowing for the open season on mourning doves can be taken up for consideration right away because there is already a bill on the House Calendar that matches it exactly.  Wow!  What a neat trick.  It’s just like magic.  You see, if the bill were to have gone through committee it may have come out with a provision that banned lead shot.  The dark forces did not like that.  Steel shot costs too much!

An amendment was offered that would have prohibited lead shot, but it was shot down without a vote.  The final vote was as follows:

The ayes were, 58:

Alons Anderson Arnold Baudler Byrnes Chambers Cohoon Cownie De Boef Deyoe Dolecheck Drake Forristall Fry Garrett Grassley Hagenow Hager Hall Helland Horbach Huseman Iverson Jorgensen Kaufmann Kearns Koester Lukan Lykam Massie McCarthy Miller, L. Moore Muhlbauer Olson, R. Olson, S. Paustian Pearson Quirk Rasmussen Rayhons Rogers Running-Marquardt Sands Schultz Shaw Smith, J. Soderberg Sweeney Taylor, J. Upmeyer Vander Linden Wagner Watts Windschitl Wolfe Worthan Mr. Speaker Paulsen

The nays were, 39:

Abdul-Samad Baltimore Berry Gaines Gaskill Hanson Hanusa Heaton Heddens Hein Hunter Isenhart Jacoby Kajtazovic Kelley Klein Kressig Lensing Lofgren Mascher Miller, H. Oldson Olson, T. Petersen Pettengill Raecker Schulte Smith, M. Steckman Taylor, T. Thede Thomas Tjepkes Van Engelenhoven Wenthe Wessel-Kroeschell Willems Winckler Wittneben

Absent or not voting, 3:

Brandenburg Murphy Swaim

The bill having received a constitutional majority was declared to have passed the House

-Governor Branstad signed into law.

Will there be a happy ending to this sad tale?

Fawkes-Lee & Ryan will be fighting to get the lead out of this legislation.  It falls under our new Fairness Issue.   But we need your help.  Please subscribe to this issue.

Epilogue:  On March 23, the bill allowing grandpa to take his grandson out to hunt raccoons was referred back to the House Committee on Natural Resources.

© Copyright 2011 Fawkes-Lee & Ryan.  All rights reserved.

 

 

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Time to cut the strings

Posted on August 14, 2011 by Marty Ryan

The Iowa Code is not reading material that excites even the most avid readers in the state.  You know that there is a law against murder in there somewhere, but what it says exactly, or how it applies to a particular incident is left to a prosecutor and defense attorney to argue about in front of a judge, and often – a jury.

It might interest some to know that the Iowa Department of Corrections (DOC) and the Iowa District Departments of Correctional Services (Community Based Corrections or CBCs) are not closely related.  As a matter-of-fact, these two agencies are completely distinct from each other.  Each has its own board of directors.  The DOC’s board is selected by the governor with the Iowa Senate’s approval.  The selection of CBC board members in an entirely different process that involves county supervisors and judges, and an entity known as a project advisory committee.

A  CBC must “furnish or contract for those services necessary to provide a community-based correctional program which meets the needs of that judicial district.  The district department is under the direction of a board of directors, selected as provided in section 905.3, and shall be administered by a director employed by the board.  A district department is a state agency for purposes of chapter 669.”

As you can see, there is no mention of the Iowa Department of Corrections.  It is an entirely separate agency of the state as it pertains to the state’s tort claims act (Chapter 669).

On the other hand, Iowa Code section 904.10, which defines the responsibilities of the Department of Corrections, limits the Department’s relation to the CBCs to that of accreditation and funding.

The department shall administer the institutions listed in section 904.102.  The department shall be responsible to the extent provided for by law for all of the following:

1.  Accreditation and funding of community-based corrections programs including but not limited to pretrial release, probation, residential facilities, presentence investigation, parole, and work release.

2.  Iowa state industries.

3.  Jail inspections.

4.  Other duties provided for by law.

Reading the recent Des Moines Register opinion pieces, articles and op-eds, a person can get a sense of wondering why the Legislature has neglected to provide funding for three halfway houses; one in Cedar Rapids, one in Sioux City, and another in Waterloo.  

Although CBCs are separate from the DOC, operating under separate boards and separate directors, CBCs must have their funding channeled through the DOC.  The funding for community-based corrections depends upon the lobbying efforts of the DOC.  The DOC has a lobbyist (oops!  They’re called liaisons); CBCs have no such luxury.  The CBCs must depend upon the DOC efforts at the Capitol to gain anything beyond federal funding.  Does anyone see a conflict of interest here?

The DOC is a state level agency for all the apparent reasons.  CBCs have local control intertwined within each judicial region.  Mixing these two separate and distinct entities in a process that involves discussing needs with legislators can leave the Big Bossy Brother making the final determination as to who gets the greater slice of the pie.

Fawkes-Lee & Ryan believe it’s time to cut the strings.  If CBCs are to remain individual agencies of the state for tort purposes, they should be in control of their own budgets.  CBCs should submit their budgets directly to the Joint Subcommittee on Justice Systems in the future and leave the DOC to fend for itself without the potential for leaving empty buildings all over the state.

 

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Anderson v. State

Posted on August 3, 2011 by Marty Ryan

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. 

Posted in Criminal Justice, Issues | Tagged , , , , , , , , | 2 Comments

Go Figure

Posted on July 26, 2011 by Marty Ryan

Statistics are a funny thing.  You can make statistics do just about anything you want them to do.  For instance, if I give 100 people a dollar bill and ask each of them to hold it for me for the next week; I might find the following in a week’s time: 

 

  • 16 people lost it;
  • 29 gave me a dollar bill back after the week, but it wasn’t the same one I gave them;
  • 20 will return the original bill;
  • 3 will ask for change;
  • 12 spent it and claimed they misunderstood me; and
  • I will never be able to locate the other 20. 

From that information there are people who will discover that 77% of people can’t be trusted.

I can see where someone might come up with that conclusion.  But was I looking for that outcome?  Perhaps the conclusion sought was to determine what people did with money when it was given to them, and nothing more.  Lately, I have noticed that a statistical conclusion has very little to do with the facts which were accumulated.  For instance, I read about a program in which offenders who participated in a particular substance abuse program had a ten percent recidivism rate.  That sounds impressive until you begin to ask questions.  I discovered that the results were based upon whether the participants were re-arrested in a six month period – by the same law enforcement agency.

I would hope that when participants in a substance abuse program are monitored they are monitored about whether they have remained straight and sober.  There are too many variables to conclude recidivism rates from a substance abuse program.  And six months is hardly a standard to use in creating a baseline.

Drug Policy Alliance has released a report, Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use*.  The Report focuses on the effectiveness, or rather the ineffectiveness of drug courts.  However, in the report there is a small segment that addresses the methodology of accumulating and interpreting data.  I can’t say it any better than quoting from the Report:

As one researcher testified at a congressional hearing in 2010, “Over half of the criminal justice programs designated as ‘evidence-based’ programs in the National Registry of Evidence Based Programs includes the program developer as evaluator.  The consequence is that we continue to spend large sums of money on ineffective programs (programs that do no good, and in certain circumstances actually do harm). 

It’s troubling to realize that the developer of a program is the evaluator.  I’m not a statistician, but it seems to me that there needs to be more independent oversight and analysis of programs before a practice can be called ‘evidence based’.

By the way, my conclusion to the example above is that I’ve probably made a poor investment and lost $48.  Now, that would be evidence based.  Don’t you think?

*You may obtain a printed copy of the Report by contacting the Drug Policy Alliance and requesting a copy.  Tell them Marty and Stephanie sent you.  However, clicking the link above will get it to you quicker.

Ethan Nadelmann
Executive Director
Drug Policy Alliance
70 West 36th Street, 16th Floor
New York, NY 10018

 

Posted in Criminal Justice, Issues, Substance Abuse and Alcoholism/War on Drugs | Tagged , , | 1 Comment