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the question of whether the defendant, Michael Anderson, should receive credit for time served after his probation had been revoked.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  Anderson’s probation was revoked after a naked 16-year-old girl was found under a bed in his home.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. 

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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

Another Wonderful Date

Posted on July 14, 2011 by Marty & Stephanie

One of our first dates was visiting the state’s maximum security prison in Fort Madison, the oldest operating prison west of the Mississippi River.  Actually, we were there because one of Iowa’s best wardens was retiring.  The tour of the prison was the icing on the cake.  We have visited or toured many of Iowa’s correctional facilities since, and we have been invited to tour or visit a few Iowa jails, also. 

Last week, we had the opportunity to spend 2 ½ hours in the Story County Jail.  Again, we were not arrested for a violation of an Iowa or federal law, city or county ordinance, or any other criminal sanction.  We were guests of Story County Sheriff Paul Fitzgerald and his staff.

Sheriff Fitzgerald has a vita that goes on forever.  He and his staff have been innovators of various programs and project.  The first thing he told us as we entered his office was that the Story County Sheriff’s Office was going to do something that has never been done before.  He rarely speaks in the first person, most often including his staff in mentioning an idea or accomplishment.  The plan was to expand the jail by twice the size in order to create a program for the mentally ill.  Unfortunately, jail is not where mental health treatment should occur, but what the heck, that’s where they land.

The expansion wouldn’t be dedicated solely to the needs of mentally ill offenders; the pod would also have options for ICE holds (ICE is the Immigration and Customs Enforcement division of Homeland Security) and federal marshal holds, along with something that might be acceptable for juveniles.  The current jail was completed in 2001 as part of an overall improvement in Story County’s Justice Center.  It was designed to add segments of more space in three specific areas of justice and service to citizens as the need arose. 

Currently, the county jail has a mental health professional on hand, and contracts with an out-of-state psychiatrist who sees inmate patients via Skype.  However, Sheriff Fitzgerald’s dream is to have this service expanded and offer telepsychiatry and telemedicine more often to those in need, as well as increasing the mental health professionals on site.

While we appreciate Sheriff Fitzgerald’s proactive response to the social issues of substance abuse and mental illness, a correctional facility is not an appropriate environment for addressing these problems.  As policymakers and stakeholders passively sit around running countless meetings discussing the problem, Fitzgerald is stepping up to actively help people.  Corrections and treatment should be polar opposites.  There is clearly a fairness violation as society continues to expect correctional facilities to meet the needs of the mentally ill and chemically dependent.

We’re grateful to Sheriff Fitzgerald and his staff for a very in-depth tour of the jail, including the kitchen, where Marty was offered two of the best oatmeal butterscotch cookies he had ever tasted.  They’re good, but not good enough to want to taste them on a daily basis.

©  Copyright 2011.  Fawkes-Lee & Ryan

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Fad Legislation

Posted on July 4, 2011 by Marty Ryan

 Several years ago, 2005 to be exact, there was a piece of legislation introduced in the Iowa House of Representatives that would have made it illegal to display “spinning hubcaps” on a moving vehicle.  A subcommittee was convened to actually consider this bill.  Yes, those hubcaps designed to spin when the car stops can be annoying.  But they’re not as annoying as legislation that is introduced (and sometimes enacted) to deal with a fad.

Most legislation prohibiting the use, display, or possession of a fad is synonymous with clothing and drugs.  In 1942, the War Production Board banned the manufacture of zoot suits.  Supposedly, the suits required too much material, which could be used for other things, like parachutes.  Off the record, Americans feared the Latinos and African-Americans who wore them.  The Los Angeles City Council also banned the zoot suits after the Zoot Suit Riots in 1943.    

 It was fear that led to the prohibition of clothing, and it’s fear that becomes the heaviest factor in banning certain designer drugs.  Toward the end of this past Iowa Legislative Session, the Senate agreed with the House to ban a few fad drugs, among them: salvia (salvia divinorum), K2 (Spice), and bath salts.  Fawkes-Lee & Ryan opposed this legislation for several reasons, but the most important reason is the precedents of having the Legislature determine which drugs are to be prohibited and which drugs are safe to use.  This is a function of the Board of Pharmacy and it should be delegated wholly to the BOP.  It’s hard to believe that any legislator today can tell me what this means: 4-methylmethcathinone,(RS)-2-methylamino-l-(4-methylphenyl).

Changing a molecule in most of the designer drugs makes a different substance that may have the same effect as the one that was just banned.  However, because a molecule has been altered, removed, or added, it’s not the same and therefore, most likely, legal.  The Legislature cannot keep up with the task of determining what is harmful, what will go away quietly, and what is innocuous.  Often, banning a product gives it the “forbidden fruit” label, which means that it must be good and worth the trouble of trying it. 

“Banned in Boston” is an outdated slogan that encouraged people elsewhere throughout the country to check it out.  The Puritanical roots of Boston weighed heavily on the local authorities power to prohibit the sale or possession of offensive materials, or the performance of plays that may have contained sexual innuendo or foul language.  In that sense, banning a product often leads to its popularity.

It’s ironic that the recent effort to ban the designer drugs of today (Spice, salvia, etc.) also included removing benzylfentanyl and thenylfentanyl from the Schedule I drugs, meaning that they had no medical usefulness and were subject to potential abuse.  The “DEA determined that these compounds were both essentially inactive, with no evidence of abuse potential. As such, these compounds are no longer schedule I controlled substances and all references to these compounds are being deleted from DEA regulations.” 

 

Zoot Suit

Zoot Suit

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I Vote For The Person

Posted on June 20, 2011 by Marty Ryan

“I vote for the person.”  How many times have you heard that?  How many times have you said it yourself?  Unfortunately, this statement is a thing of the past.  No matter how many times you think you’re voting for the best candidate, you’re probably voting for the best marketer.

 Lately, I’ve read with interest some of the statements and seen some of the antics that are occurring during this pre-caucus season.  For instance, presidential candidate Gary Johnson, a former New Mexico governor, wants to legalize marijuana.  Sounds good to those who literally want to take the high road, but let’s face it, he would have to get Congress to pass legislation before he could approve it.  That’s not realistic.

President Obama offered change, but as you can see, change is hard to come by when you’re acting alone.  You can lead, but you can’t create an action unless you have a willingness of others to go along.  This is where so many people get taken in and believe that they have been deceived by a candidate.  Most often, the candidate has been deceived by the business.

Yes, politics is a business.  And it’s no longer a small business.  The money that is raised to win an election is only the tip of the business plan.  Like a multi-national company, those at the top make all the decisions. So, when you vote for the person, you’re really voting for the message that the people in leadership positions have concluded will be the issue(s) in an election.  Everything else is a marketing message. 

So the next time you think you’re voting for a person with great ideas and ideals, you might want to check to see how true that candidate is to her/his party politics.  In any case, don’t throw your vote away by not voting. 

Posted in Issues, Voting Rights | Tagged , | 1 Comment

Parental Rights and Wrongs

Posted on June 1, 2011 by Marty Ryan

Camreta v. Greene, involves parental rights as seen through the Fourth and Fourteenth Amendments.  Well, sort of.  That’s what the issue was at the district court level.  By the time it arrived in the Supreme Court it was a different matter.  Not only was the matter moot, but there was no case or controversy, a virtual requirement for any court to hear a matter.

Bob Camreta is a child protective services caseworker in central Oregon.  He heard through the rumor mill that a father had been sexually abusing his daughter.  Camreta, along with a county deputy sheriff, went to the elementary school where the 9-year-old girl was enrolled to interview her.  She denied that her father was abusing her, but after persistent questioning from Camreta (the time is disputed, but the court determined it was 2 hours), she finally acquiesced.  The interview occurred at the school without a warrant, probable cause, exigent circumstances, and without the permission of her parents.  Her father was charged eventually, but the charges were dropped after a jury could not come to a verdict.  Her mother filed suit against Camreta and the sheriff’s deputy, James Alford.

The Supreme Court doesn’t get into too many of the details because it focuses on the technical issues of precedent, whether the case is moot, and why it accepted it in the first place.  But the point remains, what the Court did will have an effect on the control of parents over their children when the government decides to get involved.

According to the background facts in the case below, “Camreta thought the school would be a good place for the interview because it is a place where children feel safe and would allow him ‘to conduct the interview away from the potential influence of suspects, including parents.’”  What didn’t occur to Camreta is that when you remove children from a classroom the other students want to know why. It’s embarrassing, it’s noticeable, and it causes emotional turmoil without the added pressure of being interviewed for two hours.

“Throughout the interview Camreta was accompanied by Deputy Sheriff Alford.”  Alford never participated in the interview and remained silent throughout the entire two hours.  His uniform included a visible firearm.  You have to wonder why he was there.  The facts in the case never reveal an answer to that question.  It’s bad enough to have your children interviewed by an unknown government representative who is asking questions about you as a parent, but to have a law enforcement officer present gives an added sense of danger, fear, and intimidation.  It’s evident in the remaining facts.

“Upon arriving at the school, Camreta told school officials that he and Alford were there to interview [the child] and requested use of a private office. Terry Friesen, a counselor at the elementary school, visited [the child] in her classroom and told the child that someone was there to talk with her. Friesen took [the girl] to the room where Camreta and Alford were waiting and left.”  Later, when telling her mother of the incident, the child “stated that she was “scared” when Friesen left her with Camreta and Alford, although she did not ask to call home, did not ask to have Friesen or her parents with her, and did not cry.”

Parents have a right to know about the qualifications of a teacher in a public school; they have a right to know about how a physician is treating their children; and they have a right to be informed by law enforcement if the child has allegedly committed a delinquent act.  Surely, parents have the right to be notified that a government official is talking to your child – about YOU!  But that’s not the way it is, according to the recent decision.

The federal district court granted summary judgment to Camreta and Alford as it pertained to the girl’s Fourth Amendment claims (the mother sued on behalf of her child).  The Ninth Circuit Court of Appeals affirmed the district court’s summary judgment on the basis of the qualified immunity.  Here comes the strange part. Camreta and Alford are the prevailing parties to this suit, yet they appealed the Circuit Court’s decision to the United States Supreme Court.  Stranger yet, the SCOTUS granted certiorari (a writ whereby the High Court accepts to hear a case from a court below).

It’s unheard of for the winner in a lawsuit to appeal.  However, it has happened, as the Court pointed out in two cases.  But the successful parties who appealed in those two cases were appealing the judgments.  As Justice Kennedy explained in his dissent, a party may have been asking for $1,000 in damages and received only $500.  That can be appealed.  But in this case, the prevailing party is appealing what is known as dicta.  Dicta (the plural), or dictum, is not legally binding.  It’s just a writer’s (judge or justice) reasoning or editorializing.  Nonetheless, this is what got a few justices’ ire up.

The Ninth Circuit Court of Appeals did exactly what it was supposed to do, and the SCOTUS agreed.  So why did it have to hear the moot case to decide that it didn’t like what the 9th Circuit did?  It’s not a case that is going to be plastered all over every daily newspaper in the county, but it’s so strange that even the strange Justice Antonin Scalia concurred in the opinion of the majority by saying: “I join the Court’s opinion, which reasonably applies our precedents, strange though they may be.”

In its opinion, the 9th Circuit didn’t stop at granting qualified immunity, it provided dictum that “government officials investigating allegations of child abuse should cease operating on the assumption that a “special need” automatically justifies dispensing with traditional Fourth Amendment protections” as it did in this case.

So, what does this mean?  I’m not an attorney, a law professor, or a government teacher, but I think it means that the Court wanted to take away the 9th Circuit’s hand-slapping it did to government officials who try to push the envelope right up to the ledge of qualified immunity.  Government officials can step over that edge, and they have.  In this case they didn’t.  The United States Supreme Court wanted to make sure that the finger pointing was taken away.  It’s sort of like a judge saying “the jury will disregard that comment.”

Meanwhile, Camreta will continue to improperly interview children.  Alford no longer works for the DeShultes County Sheriff’s Department.

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