As a Matter of Fact

Posted on November 17, 2010 by Marty Ryan

By now, almost every Iowan knows that two senseless deaths occurred in northern Iowa earlier this week.  Two women who worked in convenience stores, one in Algona and the other in Humboldt, were shot to death after being held up by a gunman who had the loot in hand but took their lives anyway.

Often, this type of murder has mounted cries for the death penalty.  It’s not a news story – not yet that I have noticed – but I suspect it will be in a matter of time.  Many people commenting on the story in the Cedar Rapids Gazette are calling for a death penalty.  State 29, a conservative blog site, has already come out with a post asking Culver where the death penalty is that he promised.  I don’t recall Culver promising enactment of reinstatement of capital punishment in Iowa.  He supported it, but never promoted it.  That was always Governor-elect Branstad.

One reason why the issue of the death penalty has not popped up in major newscasts or other media accounts, nor should it, is that the U.S. Supreme Court has ruled that it is unconstitutional to execute a minor.  The alleged killer in these two crimes is a 17-year-old from St. Louis Park, MN.  In the U.S. Supreme Court decision of Roper v. Simmons, 543 US 551, (2005), Justice Kennedy wrote “the death penalty is disproportionate punishment for offenders under 18” and the Court “finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”  Roper at 575.

Not just for juveniles, but for all murderers, reinstatement of capital punishment is no longer a viable issue in Iowa and across the country.  In the past few years, New Jersey and New Mexico repealed their respective death penalty statutes without a lot of political fallout.  In my estimation, it never was a decisive factor in determining whether a person supported or opposed a candidate for elective office.  Now, it appears as though there may be truth in that.

The Death Penalty Information Center (DPIC), a nonprofit, nonpartisan research organization, has issued a report* that suggests voters are rethinking their attitudes about capital punishment and they expect policymakers to do so as well.

Among the report’s findings:

  • In death penalty states, most voters said it would make no difference in their vote if a representative supported death penalty repeal. Thirty-eight percent said that it would make no difference; 24% said they would be more likely to vote for such a representative. This suggests that politicians who look critically at the death penalty and support repeal might even have a slight advantage.
  • The poll confirms that the public wants straight-talk, not “tough talk” about how lawmakers propose to keep families and communities safe from crime. It suggests that the public wants legislators who will devise policies that not only hold offenders accountable for the harm that they do, but will also provide more services and support for families of murder victims.

Among the other top concerns expressed by poll respondents about the death penalty are:

  • The risk of wrongful convictions and executions of innocent people.
  • The death penalty is applied unevenly and unfairly.
  • The collateral damage the death penalty causes to families of murder victims, law enforcement professionals, and others.
  • A majority of respondents said the costs of capital punishment are an important concern, given the state of the nation’s economy. They ranked job creation, emergency services, schools and libraries, public health care services, police and crime prevention, and roads and transportation as higher budget priorities.

Legislators and criminal justice professionals should note that most individuals surveyed for the report do not believe the death penalty protects them from violent crime.  Asked to respond to the statement, “The death penalty makes me personally feel safer,” 46% of respondents from death penalty states, and 47% from non-death penalty states, disagreed.

These findings are consistent with a growing bi-partisan segment of the public, ranging in views from liberal to conservative that question the utility and effectiveness of capital punishment.  They join many who have expressed religious and moral concerns about the practice.

The message is clear: The public wants sound decisions based on the facts.  And if that’s the standard, the death penalty is truly not long for this world.

*For a detailed breakdown of the study, including the geographic regions where respondents were interviewed, responses by gender and ethnic group, and other information which you can incorporate in your communications and public education work, visit DPIC’s webpage concerning the results at http://www.deathpenaltyinfo.org/pollresults.  The study was conducted by Lake Research Partners of Washington, D.C.

© Copyright 2010 Fawkes-Lee & Ryan.  All rights reserved.

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Government Proves Nuns Wrong

Posted on November 9, 2010 by Marty Ryan

As a young student in Catholic grade school, I was taught that only God could be in two places at the same time.  I had doubts at the time because I could swear my mother’s ears were in several places simultaneously.  Superman could get from one place to another in a matter of seconds, but it wasn’t the same as being here and there all at once.

The government can be in two places at the same time, but that’s a collective government.  The Internet has allowed many of us to be in one place while “virtually” being in another place at the same time.  So, I’ve established that it’s physically impossible to be in two places at the same time.

Well, the government proved me and those nuns wrong.  If you look in the Iowa Code, you will find marijuana in two places at the same time.  I’m not referring to just the word; the manner in which it is described defies all logic.  Marijuana is a Schedule I substance.  To be included in Schedule I a substance is considered to have a “high potential for abuse; and it has “no accepted medical use in treatment in the United States”.  Now, keeping that in mind, you will find that marijuana is also located in Schedule II substances.  A substance listed in Schedule II is one that “has high potential for abuse” and “has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions”.

There are some caveats, you know, like when the language under Schedule I says stuff like “Tetrahydrocannabinols, except as otherwise provided by rules of the board for medicinal purposes,” but the point is there.  And therein lies the problem.  Marijuana has and has not accepted medical use – at the same time.  Under both schedules, there is language providing that if the board [of pharmacy] “ finds that any substance included in [either schedule] does not meet these criteria, it shall recommend that the general assembly place the substance in a different schedule or remove it from the list of controlled substances, as appropriate.”

Last week, as the Iowa Board of Pharmacy met in a regularly scheduled meeting, one of the items on the agenda was the continuing matter of medical marijuana.  Carl Olsen was there and taped the pertinent part of the meeting.  You can listen to a little over 20 minutes of the discussion here:  Audio Recording of November 2, 2010, Iowa Board of Pharmacy hearing (19 MB).  To summarize, the Board knows it has a dilemma.  It wants to communicate with the Iowa Legislature about a recommendation, but it doesn’t necessarily know what it wants to communicate or recommend.  At the beginning of the recording you can hear Lloyd Jensen, executive director of the Board, ask the members if they would like to write a letter to the Iowa Legislature, pre-file a bill, or both.

Discussion got off track as soon as Mr. Jensen mentioned the proposed rule that Carl Olsen had submitted for the Board’s consideration.  Several Board members wanted to wash their hands of the issue by suggesting that the Board of Medicine write a rule.  Uh-uh, the law says Board of Pharmacy must make any rules under Chapter 124 – the Code chapter that lists, defines, and categorizes controlled substances.

There was genuine concern about the FDA and DEA.  You could almost hear the wringing of hands.  However, the voice of reason – Lloyd Jensen – led them back to reality by informing them that they could just put everything into a bill.  “The legislators will pick and choose what they want to keep or throw out, if they do anything at all.”

One Board member made a motion to have the Legislative Rules Review Committee look at it and have them (sic) craft language.  The motion carried.  I hate to inform the Board that the LRRC does not craft language.  “Review” is basically all that committee can do.  It has other things that it can do, but it does not write rules.

Carl’s petition for rulemaking was shot down.  The reason for rejection may have been one or more reasons put forth to the Board by the Board’s attorney.  1)  It can’t be done; 2) it’s unclear; 3) it’s moot because the Board is making a recommendation to the Legislature; 4) refer to the previous order (which was issued last summer for another proposed rule); or, 5) deny it on the grounds that the Board doesn’t have the authority to negate criminal law.  There was some suggestion that the Board could draft a rule that wouldn’t take effect until some other rule, a statute, or federal movement occurred.  In effect, it would be sort of a “what if” rule.

At that point, after denying Carl’s petition for rulemaking for whatever reason (if there was one), the Board considered the matter done for the day and took a break.  The audio recording was over and I was left empty.  The Board never did come to a conclusion about how it was going to communicate to the Legislature, or what it was going to recommend.  I spoke with Carl later and he assured me that something will be done [by the Board].  I’m not holding my breath for this Legislature to do anything.

We encourage you to learn much more about this issue.  It’s one in which our readers can have a substantial edge of knowledge – more than most members of the Board of Pharmacy.  We’ll be exposing more inexperience on the Pharmacy Board, and offering additional information in the future.  Contact your legislators and urge them to “eliminate marijuana from Schedule I of the Controlled Substances Chapter, Chapter 124.”  Only God should be able to be in two places at one time.

© Copyright 2010 Fawkes-Lee & Ryan.  All rights reserved.

Posted in Issues, Medical Cannabis | Tagged , , , , , , , , , | 1 Comment

Facts Can Be Irrelevant

Posted on November 1, 2010 by Marty Ryan

When it comes to passing legislation that creates or enhances penalties for drug possession, Congress rarely cares about facts.  The Marijuana Tax Act of 1937 was one of the first laws passed by Congress based on anything but facts.  It was, matter-of-factly, based upon sensationalized editorials written by William Randolph Hearst, owner of a huge chain of newspapers.  Hearst was more than the grandfather of infamous Patty Hearst; he was the granddaddy of “yellow journalism”, an approach to journalism that uses fake stories and interviews, phony photos, and the distortion of real events.

Almost 50 years later, Congress passed the Anti-Drug Abuse Act of 1986.  The law created a 100:1 ratio in the disparity in sentencing between crack and powder cocaine.  Again, the basis of this ridiculous ratio between two versions of the same drug was rumor, innuendo, fabrication, and political hyperbole.  Crack cocaine is made from powder cocaine.  It materializes after a process known as freebasing, removing the hydrochloride, a water soluble salt, to make powder into a solid chunk or rock.  Smoking crack will get you higher faster than snorting cocaine, but snorting the powder will last a heck of a lot longer.

Iowa was one of a few states that adopted the federal ratio of 100:1.  It wasn’t until 2003 that Iowa legislators reduced the ratio from 100:1 to 10:1.  It is possible that the outlandish ratio is one of the causes of Iowa’s disproportionate imprisonment of African-Americans.  Although it is believed that the percentage of drug users across ethnic and cultural lines is basically equal, African-Americans and Latinos are incarcerated at higher rates than their white counterparts, especially in Iowa.

So, to begin, a crack dealer needs cocaine.  The dealer heats the cocaine with baking soda and recovers the chemical reaction that rises to the top.  That solid piece of what remains is the crack. “According to the DEA and Sentencing Commission, one gram of cocaine powder converts/reduces to 0.89 gram cocaine base.”  http://edocket.access.gpo.gov/2010/2010-24648.htm.  In other words, beginning with 100 grams of cocaine powder (about the weight of a half roll of quarters, the dealer can produce approximately 89 grams of crack (take a couple of quarters out of that ½ roll).  Before the chemical transformation, the penalty for possessing those 100 grams of cocaine in Iowa would be a class “C” felony, ten years in prison.  After the transformation, the possession of the 89 grams of crack in Iowa is a Super class “B” felony, 50 years in prison.  “This disparity means that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.”  Kimbrough v. US, 128 S.Ct. 558, 566 (2007).

Last week, a committee of the state’s Public Safety Advisory Board (PSAB) discussed this matter for almost 3 hours.  The Iowa Department of Corrections presented a proposal to equalize the sentences for equal amounts of cocaine/crack since “numerous studies have shown that the physiological and psychotropic effects of crack and powder cocaine are the same, and the drugs are now widely acknowledged as pharmacologically identical.”  Unfortunately, the department was willing to compromise as a result of pressure from law enforcement agencies.  The proposed compromise reduces the disparity to a couple of different percentages pulled out of mid-air, but it remains far from equalization.

Some would like to see the criminal sanctions for powder cocaine raised to match that of crack.  However, there are several problems with that reaction.  First, adjusting thresholds for powder cocaine will make a point that cocaine is a more troublesome drug than heroin, or meth.  Second, decreasing a threshold for amounts of powder possessed, bringing it down to current crack levels, will increase the population of Iowa’s prisons – already over capacity; thereby increasing the dollar costs to maintain those prisons.  Legislators are not about to frivolously spend money on additional prison beds in this grim economy.

The committee has not agreed to the compromise at this time; the Iowa Criminal and Juvenile Justice Planning Commission (CJJP) of the Iowa Department of Human Rights is going to conduct further research on projected results.  Nonetheless, even if the committee recommends a proposal to the PSAB, it may mean very little in terms of accomplishing the enactment of legislation this year that will address the disparity in sentencing between two pharmacologically identical drugs.  A committee proposal/compromise to the full PSAB may be shot down.  Even if it’s accepted by the PSAB, it may be rejected by the Iowa Legislature.  Either way, it’s nice to see people talking about this discrepancy rather than brushing it off as a political hot potato.

It’s funny how Congress and the State of Iowa can create a law based on thin air, but once facts are produced, explained, and emphasized, it is extremely difficult to change minds and hearts – and especially the law.

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© Copyright 2010.  Fawkes-Lee & Ryan.  All rights reserved.

Posted in Criminal Justice, Issues | Tagged , , , , , , , , , , | Leave a comment

This Year’s Missing Argument

Posted on October 24, 2010 by Marty Ryan

What’s missing from this election year rhetoric that dominated every other election year in which Terry Branstad was a candidate?  The talk of reinstating capital punishment in Iowa.  However, it goes much further than that.  There has been little or no discussion of enhancing penalties, creating new crimes, cracking down on certain drug dealers (no pun intended), or the criminal justice system in general.

What has kept the death penalty and criminal sanctions out of discussion this time around?  As far as the death penalty is concerned, both Governor Culver and Branstad favor the concept of state-sanctioned death for committing capital murder.  If Culver is re-elected, we will probably hear the end of the issue for at least four years.  Although Culver is a proponent of the death penalty, he doesn’t initiate the cry for legislation.  If Branstad is elected (or would we say re-elected, as well), we can expect several instances throughout his term in which he will tout the need for reinstating the death penalty in Iowa after a half century of living fine without it.

Setting the death penalty aside, it’s difficult to find any trace of “tough on crime” issues in debates, advertisements, or mud-slinging.  To emphasize this fact, I never thought I would see the day in which the campaign for Iowa’s attorney general came down to gay marriage, consumer protection, and health care coverage?  When competition for the top law enforcement office in the state becomes a battle of social issues, we shouldn’t expect the campaign for the office of governor to focus on criminal issues.

The lack of proving who’s tougher on crime this election cycle might indicate that Iowa has passed all the laws necessary to deal with every crime imaginable, or that Iowa’s punishments for crimes are just, or perhaps all the nasty perpetrators are locked up and can no longer offend society.  Realistically, it could be that, because it costs a lot of money to incarcerate felons, no one wants to explain how the state can afford to spend more tax dollars in order to be tougher on crime.  If an increase in spending is realized each year to offset crime, shouldn’t there be a point in which enough has been spent to curtail the increase in crime?  Surely, we must have hit that saturation point by now.

There are a lot of unanswered questions.  Fawkes-Lee & Ryan is committed to working toward sensible sentencing practices.  No matter who comes out on top on November 2, our dedication to ensuring common sense approaches to sentencing structure is based upon factors that rehabilitate the offender, protect society, and take the financial cost to the taxpayer into consideration.  The death penalty does none of this.  It’s a relief to know that this year’s debate on crime and punishment is not as prevalent as it has been in previous elections.

It’s time for Iowa policy makers to sit back and examine the sentencing structure in place and do some fine-tuning.  Some of that tinkering should include decreasing the thresholds of punishment for a few sentences that were created or enhanced in the past 40 years, mostly based upon emotion and political posturing.  We think the time is right for a practical approach for change.

Copyright © 2010 Fawkes-Lee & Ryan.  All rights reserved.

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Another Election Issue to Consider

Posted on October 15, 2010 by Marty Ryan

If our tax dollars go to nonprofit organizations that are formed and ran by government, it makes sense that those particular non-profits should be subjected to the transparency we all expect from governmental bodies.

During the 2010 session of Iowa’s General Assembly, Rep. Geri Huser (D-Altoona) introduced an amendment to the Education Appropriations bill, which was intended to have nonprofit organizations that are run by government entities subject to the Iowa Open Meeting and Public Records laws.  The amendment, H-8533 to Senate File 2376, was adopted 98-0 by the House on March 22.  It was taken out of the bill by a Senate amendment on a party-line vote 29-18 on March 25.  Unfortunately, the concept was incorporated into the final bill, but only as it pertains to reporting requirements of local school boards to the Iowa Association of School Boards.

The idea of having non-profit organizations that are ran by government entities to be open to public scrutiny was a hot topic in March.  The Iowa Association of School Boards was being turned inside out by several critics, including, but not limited to the Des Moines Register, the Legislative Oversight Committee, and many individual legislators and other elected officials.

Representative Huser should be commended for her leadership on this issue.  It’s not just the IASB that needed oversight; all Section 501(c)(3) organizations that are funded wholly, or in large part by government entities or by government employees, need to have a watchdog overlooking their actions.  If it’s happened once, it can happen again.

Several government nonprofits conduct business as though they are private organizations.  The Iowa County Attorneys Association, the Iowa State County Treasurers Association, the Iowa League of Cities, and the Iowa State Association of Assessors are just a few examples of government-funded nonprofits that have links for “members only”.

Shouldn’t the Iowa Legislature consider enacting legislation that prevents all government nonprofits from running off course?  Shouldn’t there be openness in organizational structure that is funded with all or part of taxpayers’ dollars?  Send a message to candidates this fall.  Ask them if they will protect our interests in providing transparency beyond the normal means of access.

Copyright © 2010 Fawkes-Lee & Ryan.  All rights reserved.

Posted in Issues, Open Meetings/Public Records | Tagged , , , , , , | Leave a comment

Announcing My Nomination for Delegate

Posted on October 6, 2010 by Marty Ryan

If Iowa voters approve the Nov. 2 ballot question about whether Iowa “should convene a constitutional convention,” I want to be a delegate. The first thing the convention needs to do is remove this controversial provision that provides for a convention every 10 years.

Piecemeal, like the present method, is a better process of improving a constitution, and who knows better than executive branch agencies. In the past 15 years, most ideas for constitutional amendments have come from the Department of Transportation, the Attorney General’s Office and the Department of Natural Resources. We the people my eye.

The next big item for the convention to address is to restore the provision that people could not hold office if they were involved in a duel. I see no merit in allowing people to be elected officials if they were in a duel.

In 1998, Iowa voters amended the Constitution by removing a cap on simple misdemeanors that was set at $100. The state couldn’t collect much of the fines imposed under that limit, so the Attorney General’s Office suggested we raise the lid to get more money. The argument at the time was that $100 wasn’t a lot. It was then, and it is today. The constitutional amendment was ill-advised. In 1991, the Iowa judicial branch reported that more than $18 million in outstanding fines remained uncollected. That figure grew to $143 million in 1998, the year the constitutional amendment was adopted. However, once the cap was lifted, and fines grew exponentially, the amount of uncollected fines after another 10-year period grew to $521.4 million. That’s a 2,897 percent jump from 1991.

Following those accomplishments, I would like to convince my fellow delegates that we need to incorporate an entire article on the rights of Iowa children to have a free public education. It’s not in there.

There is language in the Iowa Constitution about education, but not in the codified version. Iowa and Alabama are the only two states that do not provide for a free public education in their respective state constitutions.

There are items that clutter up the Iowa Constitution. For instance, that burdensome article that provides for a court system. As one former candidate for governor has put it: “We need to send a message to the Iowa Supreme Court that they (sic) are accountable to the people of Iowa. The problem with judicial activism is that it thwarts the will of the Legislature and of the people of Iowa.” OK, so if interpretation of the Constitution is a problem, get rid of the people who do it now and have the Legislature decide cases. Heck, it can’t be much worse than the Taliban. Who needs to protect the minority from the tyranny of the majority?

If churches and other religious non-profit groups are going to lobby, they should lose their tax-exempt status. Freedom to practice religion does not mean that majority mainstream religions have the right to shove their dogma down my throat. The place to teach the tenets of one’s faith is in a non-taxed house of worship, not the rotunda.

This convention could go on for several years. Between now and January, I’m going to think of at least 100 more issues to bring up. But first, I throw my name out there for nomination as a delegate.

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