Paying Attention

Posted on May 5, 2011 by Marty Ryan

Twenty-one years ago this week, Florida executed Jesse Tafero in the electric chair.  The significance of this state-sanctioned murder is that it was a continuing example of what can go wrong and why change was needed.  Unfortunately, the change made was not the change needed.  Tafero was tortured as the electric chair malfunctioned three times.  Tafero was still alive as flames jumped from his head.  Florida eventually ceased using the electric chair and began executing defendants with lethal injection.  The method doesn’t determine what is and isn’t humane – the death itself is not humane; it’s barbaric.

Perhaps politicians are beginning to understand the gruesome practice for what it is.  There were no bills introduced this legislative session in Iowa that would have reinstated capital punishment.  The death penalty was supposed to be a defining issue in political races of the past.  It’s not now, and it never was.

Governor Tom Vilsack proved that opposition to the death penalty is not a weight around the neck when running for public office.  Senator Vilsack strongly opposed the death penalty, and offered to filibuster on the floor of the Iowa Senate in 1995 to prevent House File 2 from being enacted.  It wasn’t necessary; there were more than enough votes to defeat the measure that year.

However, years later Vilsack ran for governor and the issue was nothing more than a minor mention during the campaign.  He didn’t hide the fact that he was a strong opponent of capital punishment.  With that in mind, he went on to win two terms as governor.  During the time he was governor, everyone knew that pushing a death penalty bill through the Iowa Legislature was a futile effort because Vilsack promised to veto such a bill.

You know what?  Tom Vilsack never once said the word “veto” in the same sentence as “death penalty”.  I cautiously watched for eight years.  Never did Governor Vilsack promise to veto a death penalty bill.  He did say, however, that he wouldn’t sign a bill reinstating the death penalty.

Today, Iowans should be proud that we held back those efforts in 1995.  Since that year, several states have abolished the practice for a number of reasons.  It’s too expensive.  It is not administered justly.  It is inhumane!  It is discriminatory in practice, and evidence is emerging that indicates some people who have been executed may have been innocent.

I’m proud to live in a state that does not tinker with the machinery of death, as former Associate Justice Harry Blackmun called it.

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

Posted in Death Penalty, Issues | Tagged , , , | 1 Comment

A Stunning Development

Posted on April 26, 2011 by Marty Ryan

An electronic control device, better known as a stun gun – or Taser™, is a dangerous weapon.  The Iowa Department of Corrections has introduced a proposed rule that will allow sheriffs or detention facility administrators to use discretion in arming jailers with stun guns.  Changing the definition of what a weapon is or is not in an administrative rule does not change the fact that the Iowa Code defines an electronic control device as a dangerous weapon, “capable of inflicting death upon a human being.”

A federal district court in California came to the “conclusion that use of the X26 Taser and similar devices in dart mode constitutes an “intermediate, significant level of force that must be justified by the governmental interest involved,” The court pointed out that its holding “falls well within the national mainstream of the decisions which have examined the nature and quality of the intrusion posed by Tasers.”

Present language in the rule offers a vague description of how these weapons will be used.  The rule states that the weapons will have a “primary intended use”.  If there is a primary intended use then it must be argued that there will be a secondary intended use.  We hope not.  This is troublesome language, especially since the Code section in which this rule is designed to implement states that “[a] violation of a rule does not permit any civil action to recover damages against the state of Iowa, its departments, agents, or employees or any county, its agents or employees, or any city, its agents or employees.”  But what if it’s the department, an agent, employee or county, etc. that is the one that violates the rule?  Unfortunately for the detainee, the enabling statute covers only the possibility that an inmate will violate the rule.  The statute lacks protection for an detainee or inmate where a government body or government employee is the violator and is entitled to a qualified immunity defense.  “The doctrine of qualified immunity protects government officials from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” If this rule is adopted, the burden of proof shifts to the offender who is quite likely the victim as a result of a rule violation in this instance.

We hope that the Department takes notice that the federal government has joined a suit in Franklin County, Ohio, to stop the misuse of stun guns in that county’s jail.  “Franklin County (home of the state’s capital – Columbus) jailers [used] the guns to shock naked and restrained prisoners and to punish inmates for routine rule violations.”  If misuse can happen in Ohio, it’s possible for misuse to happen in Iowa.  Granting discretion to sheriffs and facility administrators without requiring the need for training, and/or some sort of consequence, will lead to federal suits in Iowa.

In any case, the use of electronic control devices should not be allowed until personnel who intend to use it are trained in several areas.  The proposed rule is limited to giving a sheriff (or facility administrator) the discretion to allow staff to use the stun guns.  The rule addresses nothing about training or misuse of the weapons.  This is a bad idea that should be stricken from an otherwise decent rule.

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

 

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Advisory Or Enforcement?

Posted on April 4, 2011 by Marty Ryan

Public records are public.  Government does not own them, but manages them.  However, it’s difficult to understand who owns these records by listening to government lobbyists at the Iowa Capitol.  It’s almost funny, and certainly shameful, to see several government representatives oppose a bill that expands the enforcement and oversight of government compliance with the two chapters of the Iowa Code that pertains to public records and open meetings.

A bill is moving through the legislative process (SF 430) that creates an enforcement board to ensure compliance with the open meetings/public records chapters – Chapter 21 & Chapter 22.  For years, there has been a back and forth argument between the Senate and House about whether the matter of compliance should be overseen by an advisory committee or an enforcement board.  The enforcement board appears to have won out.  But that’s not the end of the argument.  Lobbyists for political subdivisions of the state want an advisory committee, and they don’t seem to want to stop complaining until they get one.

The problem with an advisory committee is that it becomes another tentacle of state bureaucracy.  The committee is filled with wise people saying brilliant things, but in the end, it’s the staffing that makes all of the decisions.  This has been repeated far too many times.  In a word search of the Iowa Code the word “advisory” shows up 384 times.  The phrase “advisory board” shows up 180 times, and the phrase “advisory committee” appears 138 times.  Advisory bodies are a dime a dozen and seldom are they taken seriously.

The staff prepares the agenda with the chair’s help.  Staff does all the research, makes suggestions for recommendations, and performs most of the work before and after meetings.  The committee members show up and discuss matters for hours, often leaving with a lack of any accomplishment.  The attendance at so many of these types of meetings is poor, especially if there is very little to do but approve items that will be included in a report that no one notices – or reads.

The current situation is not the ideal setup for improving the expectations the public wants or needs as it pertains to open meetings/public records.  In most instances, the enforcement is provided by the county attorney, the top law enforcement official in each county.  The appearance of a conflict of interest is exposed each and every time a matter of a possible violation comes up in a political subdivision of the state.

There are 940 communities in Iowa.  There are 99 counties.  Each has its own legal counsel.  That means there are potentially 1,039 different opinions on issues involving public records and open meetings.  Enforcement, education, compilation of complaints, and compliance with the law needs to be centralized in one place.  The ongoing effort of the Citizens’ Aide/Ombudsman and Attorney General is admired, but it scatters these essential efforts and promotes duplication.  One body, speaking one language, is necessary to the perseverance and equal application of Iowa’s dedication to openness in government.

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

Posted in Issues, Open Meetings/Public Records | Tagged , , , , , | 2 Comments

From License Plates To Toilet Paper

Posted on March 18, 2011 by Marty Ryan

Ever since I was a young boy I knew that license plates were made in prison.  However, as I grew older I wanted to know what happened when there are no license plates to make.  I found out about 10 or 15 years ago when I was introduced to the director of Iowa Prison industries (IPI), Roger Baysden.  Roger retired a few months ago, but his development of IPI has made a difference in the lives of many.

The business of manufacturing license plates in Iowa is conducted by the Iowa Prison Industries (IPI).  But IPI is much more than an occasional license plate maker.  IPI is a program within the Iowa Department of Corrections that provides inmates with meaningful jobs “to develop within those inmates willing to accept and persevere in such work;

  • Positive attitudes which will enable them to eventually function as law-abiding, self-supporting members of the community;
  • Good work habits that will assist them in eventually securing and holding gainful employment outside the correctional system; and
  • To the extent feasible, marketable skills that can lead directly to gainful employment upon release from a correctional institution.”

I realized this week that IPI is a very misunderstood segment of the Iowa correctional system.  My realization stemmed from a very unusual bill that popped up.  The bill, House Study Bill 218 by House Committee on Government Oversight, has 4 parts to it.  The first section of the bill requires the IPI to file reports.  That’s no problem: it’s been filing reports for quite some time now.  The second section requires the IPI to receive authorization from the Legislature before spending an amount of over $250,000 for a capital expenditure.  That’s not too much of a problem – it doesn’t happen often  Section four of the bill pertains to the effective date – not a problem at all.  But section three of the bill is a bit controversial.

It seems as though a wholesaler within the state may have been upset that sales of toilet paper to state correctional institutions would be drastically reduced, taking a cut from the wholesalers’ profits.  An educated guess will tell an experienced lobbyist that this is the impetus for the bill.  The bill’s 3rd section requires the IPI director to prepare and submit a report to the Government Oversight Committee “regarding the merits of the processing of toilet paper by IPI”.

This bill is not going to replace any Iowa jobs.  That’s because there is no Iowa manufacturer of toilet paper.  According to “Building Bridges To Success”, a Five Year Transition & Business Plan (2011-2015) prepared by Roger Baysden for IPI, the Iowa Department of Corrections “alone purchases over 1 million rolls of tissue paper a year.  Based upon market test (3 years in Missouri prison) IPI can manufacture tissue of the same or better grade of paper for about ten cents less per roll than what DOC is paying for it now.  This is a savings of about $100,000 to the state and it will add between 40-50 offender skill training opportunities.”  I believe the preparation of the report in section 3 has been completed.

Nonetheless, it was the comments of a business lobbyist that made me realize that there exists a huge misconception that inmates learn a particular skill while incarcerated; a specific skill that can be immediately transformed to an employment opportunity once released.  That’s not necessarily so.  Inmates don’t just get placed into a prison job.  They have to apply for it.  And that’s where IPI’s hidden secret lies.

Many inmates have never had the opportunity to apply for a decent job.  Often, they lack the basic skills necessary to complete an application form.  IPI assists these offenders with everything from how to dress for an interview to explaining their criminal record to a potential employer.  As they leave an institution, offenders who have participated in the IPI Program are presented with a 44-page handbook that helps them with their transition, especially as it focuses on their employment opportunities.  The former inmates leave with 1) marketable skills; 2) the development of a sound work ethic; 3) self confidence and pride of accomplishment; 4) a possible savings and family support; and 5) the handbook that will help them in their search for meaningful employment.

While incarcerated, participants have paid taxes, restitution, Victims’ Compensation, and reimbursed the General Fund of Iowa.  “IPI inmates paid more in child support in 2009 than all of the Iowa inmates combined earned in 1997.”

Here are some key points of IPI that go virtually unnoticed:

“IPI employs over six hundred offenders and generates over 25 million dollars in annual sales;

“IPI provides over 1.6 million hours of hands-on offender work skill training at no cost to the taxpayer;

“IPI receives no appropriations from the general fund [of Iowa];

“IPI hires staff and pays their salaries from the profit on sales of goods and services;

“IPI has plant operations at eight of the nine Iowa Prisons.”

Stephanie and I toured the woodworking shop of IPI inside the Iowa Penitentiary at Fort Madison.  We were in awe.  Some of the most beautiful handcrafted wood products are being produced daily.  We invite you to check into the IPI further.  Products created by IPI inmates are of high quality and virtually flawless.

Some of the products made by IPI inmates include solid hardwood desks, chairs and furniture; dolls; signs; toys; jail cells; and many other items almost too numerous to mention.  The IPI has a showroom, built and maintained without tax-payers’ dollars, located at 1445 East Grand Avenue in Des Moines.  The building is easily accessible right off I-235 on Grand between 14th and 15th Streets.  You may also take a quick look at IPI’s success by accessing its website at:  http://www.iaprisonind.com/

House Study Bill 218 is more than a profit loss to a toilet paper wholesaler; it’s an opportunity for education.

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

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

Turf Wars

Posted on March 7, 2011 by Marty Ryan

For several years there has been a battle between the Iowa House of Representatives and the Iowa Senate over which direction to take in improving Iowa’s public records and open meeting laws.   The battle is much more than just language changes in the two chapters that control access to records and availability of public participation in meetings.  There needs to be a method of ensuring compliance, and there are three ways to go.

The Senate leans toward creating an enforcement board, while the House tends to favor an advisory committee.  Granted, the Senate version will cost more.  But this is one area in which the adage “you get what you pay for” holds true.   The third option is to keep the status quo, which is slightly controversial, and the possible reason why there is a needed change.

The proposed enforcement board, suggested by the Senate, is not just an entity that will throw its weight around, punishing people for violating the law.  It will advise and educate also.  The proposed board will have a concerted effort at oversight and mediation.  It is an idea whose time has come.

The Senate has held on to its belief with consistency over the years.  The House has jumped all over a group of proposed amendments in an attempt to please everyone, but no one in particular.  In the process, a large group of governmental lobbyists follow every meeting anticipating a wedge to get an exception in here or there.  At present, the amendment attached to the current house is a bill that failed to be accepted by the Senate two years ago.

One interested person has called the House’s version a debate society.  I believe that’s an accurate description of what might come of the advisory committee.  The problem with an advisory committee is that it becomes another tentacle of state bureaucracy.  The committee is filled with wise people saying brilliant things, but in the end, it’s the staffing that makes all of the decisions.  I’ve seen it far too many times.

The staff prepares the agenda – with the chair’s help, of course.  Staff does all the research, makes suggestions for recommendations, and performs most of the work before and after meetings.  The committee members show up and discuss matters for hours, often leaving with a lack of any accomplishment.  The attendance at so many of these types of meetings of state government are poorly attended, especially if there is very little to do but advise.

The current situation is not the ideal setup for improving the expectations the public wants or needs as it pertains to open meetings/public records.  The enforcement is provided by the county attorney, the top law enforcement official in each county.  The appearance of a conflict of interest is exposed each and every time a matter of a possible violation comes up in a political subdivision of the state.

We need a better system.  I’m almost betting that this will eventually come down to an arm wrestling match – years from now.

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

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Every Step You Take . . .

Posted on February 24, 2011 by Marty Ryan

“On the wall outside his former residence – flat number 27B – where George Orwell [author of the novel 1984] lived until his death in 1950, an historical plaque commemorates the anti-authoritarian author. And within 200 yards of the flat, there are 32 CCTV cameras, scanning every move.”

Fawkes-Lee & Ryan strongly opposes the use of government-placed cameras on streets and street corners.  We’re also realistic.  We don’t believe the use of traffic cameras will be outlawed.  In the alternative, we believe making sense of their use is the next best option.  As it’s told, the horses are out of the corral.

Fawkes-Lee & Ryan believes that consistency is the primary purpose of legislation that attempts to regulate the use of Automated Traffic Enforcement Systems (ATES).  House Study Bill 93 is a House Transportation study bill that proposes to regulate the use of ATES.  As it is, the use of ATES is something used by cities in large metropolitan areas of the state.   It is not a sensible option for small rural communities and counties.  The potential use of these systems by smaller cities in Iowa is somewhat prohibitive based upon several factors.  Without a consistent basis with which to regulate the use of these systems, abuse is a potential reality.

Small rural counties and communities cannot realistically use these systems.  Whereas, a city such as Cedar Rapids can set a fine at $65, and keep a little over half of the proceeds of the fine for administrative costs and other variables, cities such as Carroll and Fairfield will not be able to justify the safety needs of these systems as it correlates to the costs of implementation and maintenance.   If a small community or county within Iowa should desire to install and utilize such a system, the monetary penalty for a violation would have to be considerably more than the $65 Cedar Rapids charges.  Therefore, the ceiling of $50 per penalty is an adequate amount to prevent any potential abuse.

ATES should not be used as cash cows for local authorities, as many citizens believe them to be, and HSB 93 strikes a balanced comprise.  A small due process consideration of having signs posted in a uniform manner throughout the state is not too much to ask.  The size of the sign, the distance of the sign from the ATES based upon the speed limit of a given road, the dimensions of the sign and what it says are all important facets of a consistent program that offers due process to motorists.

There are several problems with the use of ATES that require more attention from Iowa legislators.  First, if these ATES are installed truly for public safety purposes, than because there are civil penalties and not criminal penalties attached to the penalty phase, there can be no repercussions for motorists that accumulate a mass of speeding tickets.  For instance, if a law enforcement officer stops a person for speeding, the person violating the speed limit receives a criminal sanction and the offense is attached to the person’s driving record.  If that same person receives 3 of those personally presented citations in a year, that person is on the way to becoming a habitual offender.  On the other hand, if that same person speeds through a red light ten times in a month, which is part of an ATES, the only consequence is that that person is out a lot of money.  There is no threat to the privilege of possessing a driver’s license.  Unfortunately, far too many city officials fail to see that this is NOT an enhancement of public safety.

Likewise, as a city’s residents become familiar with where speed cameras are located, traffic will slow to a crawl in those stretches of the road because of the natural tendency to reduce speed as traffic comes within range of the cameras.  Already, any radio station in the area will provide a public service announcement (ahem, if that’s what we can call them) to inform residents of where the speed traps are located.  Bottlenecks will become more and more prevalent.  The likelihood of road rage will increase.  These unforeseen problems are going to have to be dealt with as ATES grow across the state.

The eeriness of Orwell’s prediction didn’t occur in a year, it took time.  Government in this country has not gone as far as England, but if we’re not vigilant, it will be a matter of time.

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

Every breath you take
And every move you make
Every bond you break
Every step you take
Ill be watching you

Sting – “I’ll be watching you.”

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