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.

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

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.

Posted in General | Tagged , , | 1 Comment

What Have You Got to Hide?

Posted on September 27, 2010 by Marty Ryan

“What have you got to hide?”  This question comes up too often.  In other cases, it doesn’t come up enough.  Mostly, it’s asked by police when wanting to search a vehicle, home, or even a person, without a search warrant.

The annual Iowa Freedom of Information Council’s luncheon and program was held last Friday, September 24.  The speaker, Karen Kaiser, the Associated Press’s in-house lawyer, turned the table and encouraged those in attendance (primarily media representatives) to ask the question of government officials and staff.  It gets tougher all the time to obtain information from elected leaders and the people they employ to operate “our” government.  What have they got to hide?

During the question and answer period, KCCI-TV News Director Dave Busiek referred to the difficulty news outlets have in obtaining information that is perhaps irrelevant to an investigation. It’s almost funny how law enforcement agencies hesitate to produce in-dash camera videos from police cars, but when the agency has a promo piece it wants to hit all corners of the earth it expects the media to print or broadcast its news release without delay.

Iowa’s public records laws, Iowa Code Chapter 22, has been around for almost 40 years.  In the beginning, there were 11 exceptions to the chapter’s requirements for government to produce records to the public upon request.  Today, there are over 60 exceptions carved into the law.

Here’s something to consider.  When a bill is presented in the Iowa Legislature that pertains to Chapter 22, or Chapter 21 (Open Meetings), a group of about 25-30 people will gather around a table.  Three of the group will most likely be legislators; 3 others will be those of us from the outside (lobbyists representing newspapers, broadcasters, or Fawkes-Lee & Ryan subscribers); and the remaining people at the table are paid by government entities.  Those people are paid to deny you access to your records.

Fawkes-Lee and Ryan will be at the table this upcoming session working diligently to prevent the expansion of the exceptions list.

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

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

Photo ID Required?

Posted on September 23, 2010 by Marty & Stephanie

It isn’t broke, so why break it?  Iowa has a great voting system.  There isn’t a problem, except for encouraging more people to vote.  Active voters strengthen our democracy.  Eagar candidates needing to win votes have to listen to a variety of groups and diverse interests.  Requiring a photo ID weakens our system.

It costs money to have a photo ID.  When you get on this road standards need to be set, only certain IDs are accepted.  It is the very voter that needs representation that gets eliminated by what amounts to a poll tax.

Why only make small unconstitutional changes to an excellent system?  We could require a test before people vote.  Educated voters would vote in the “right” candidates.  As long as we’re looking at education, how about requiring a high school diploma—that would encourage and reward young voters to remain in high school.  But, do young people even have enough life experience to vote?  The “wrong” candidates keep getting elected.  Why not go back to being age 21 to vote?  As long as we’re going back—was it really a very good idea to let women vote?  It is just another annoying demographic that candidates have to support.  Since we’re exploring difficult demographics, older voters are a pain.  With retirement comes way too much time on their hands.  They tend to get involved politically.  There should also be a ceiling on the voting age requirement.  After all, some of these voters may have Alzheimer’s or dementia.  This would explain why the wrong people keep get elected.  It was so much easier when only white male landowners could vote.

But Seriously…

Photo identification is a needless accompaniment to the voting process, and insisting that Iowa have a law requiring a photo ID is just as needless.  We have no rampant voting fraud in this state.

In 2008, the United States Supreme Court upheld an Indiana law that required photo identification at the polls.  In Crawford v. Marion County Election Bd., 553 US ____ (2008), Justice Kennedy turned down a facial challenge to a law passed by the Indiana Legislature that required a voter to present a photo ID in order to vote.  (A facial challenge is one in which a law is questioned on its face, as opposed to one that is challenged in an “as applied” situation.)

Justice Kennedy and the majority on the Court did not take into account some of the impractical implications of this absurd requirement.  A married couple, one of whom is an election official at the polls, will be required to insist that the spouse show identification when voting.  But what’s worse is that that same election official will have to ask friends for identification.  Can you imagine the hurt feelings, the accusations, and the humility that will surface because of this?  “She just wanted to check my age!”  “He’s known me since the 1st grade.  “The nerve of her asking me for identification. I don’t want to vote anymore if I have to show an ID.  It’s degrading.”

The trust of the American voting system is at risk here.  Voting is not a security risk.  Voting cannot be compared to buying beer, boarding an airplane, or cashing a check.  Voting is a fundamental right, like worshipping in a church, synagogue or mosque of your choice.  Government intrusion into our fundamental rights has gone far enough as it is.

There are so many hurdles a person must jump in order to vote under Indiana law.  In his dissent, Justice Souter covers a long list.  The concept of some who think this is no big deal (obtaining photo identification) is out-of-touch with the reality of the situation.

In Souter’s closing statement he states that “the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor and old.”  Justice Souter would have held the law unconstitutional.

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

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