{"id":1157,"date":"2012-07-26T20:10:09","date_gmt":"2012-07-27T01:10:09","guid":{"rendered":"https:\/\/iowappa.com\/?p=1157"},"modified":"2012-07-26T20:10:09","modified_gmt":"2012-07-27T01:10:09","slug":"invasion-of-the-judicial-and-legislative-branches","status":"publish","type":"post","link":"https:\/\/iowappa.com\/?p=1157","title":{"rendered":"Invasion of the Judicial and Legislative Branches"},"content":{"rendered":"

\"\"<\/a>On Monday, July 16, Governor Terry Branstad issued a commutation to 38 of Iowa\u2019s lifers.\u00a0 That group of lifers consists of those felons who are serving a sentence of life without the possibility of parole for crimes they committed as juveniles.<\/p>\n

In a sweeping motion, the governor commuted the life sentences of all 38 individuals to a minimum term of sixty years, with no possibility of parole during that initial 60-year sentence.\u00a0 Immediately, the decision raised questions that keep coming.<\/p>\n

Can he do that?\u00a0 That will be up to the courts to determine, and the governor\u2019s decision will be challenged.\u00a0 The Iowa Constitution gives the governor the power to commute a life sentence to a number of years, and it is backed up by statutory law.\u00a0 However, that\u2019s about where agreement on the governor\u2019s limitations ends and the questions begin.<\/p>\n

A Des Moines Register editorial said that the governor took the power \u201cto be judge, jury and sentencing court all in a single act.\u201d\u00a0 He did more than that.\u00a0 He created a new punishment \u2013 minimum sixty-year sentence without the possibility of parole.\u00a0 He created a sentencing scheme that disallows a former juvenile to serve anything but a life sentence.<\/p>\n

To begin with, nowhere in the Iowa Code is there a sentence of sixty years. In creating the 60-year term Governor Branstad usurped the power of the Legislature.\u00a0 This determinate sentencing scheme is a power left solely to the Legislature.\u00a0 Where did the governor come up with 60 years?\u00a0 This is a discussion that must be left to the general assembly.<\/p>\n

Next, the governor has the power to commute life sentences to a term of years, but there is no provision that allows him to place a caveat on that sentence, such as a limitation on how much time must be served before the Parole Board may consider releasing the individual.\u00a0 In this regard, he has usurped the power of the Legislature, the courts, and tied the hands of his own Parole Board.<\/p>\n

\u201cThe power of the governor under the Constitution of the State of Iowa to grant a . . . \u00a0commutation of sentence . . . \u00a0shall not be impaired.\u201d\u00a0 Yet, the Legislature has placed limitations on that power.\u00a0 It has required that a person may \u201cno more frequently than once every ten years, make an application to the governor requesting that the person’s sentence be commuted to a term of years.\u201d\u00a0 And, the Legislature has defined a process for commutation.\u00a0 The governor ignored the process in delivering his commutations.\u00a0 \u201cThe director of the Iowa department of corrections may make a request to the governor.\u201d\u00a0 \u201c[T]he governor shall send a copy of the request to the Iowa board of parole for investigation and recommendations as to whether the person should be considered for commutation.\u201d\u00a0 And Parole Board must \u201cconduct an interview of the class “A” felon and shall make a report of its findings and recommendations to the governor.\u201d<\/p>\n

That entire process was deliberately ignored as the governor conducted a political sidestep in which his only basis for commuting the sentences was for the safety of Iowans and to ease the pain of victims.\u00a0 Neither of these reasons is included in the statutory process under Iowa Code Chapters 81, 331, 902, 904A, and 914.<\/p>\n

In Miller v. Alabama<\/a>, the United States Supreme Court held:\u00a0 \u201cBy requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard\u00adless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment\u2019s ban on cruel and unusual pun\u00adishment.\u201d\u00a0 Governor Branstad looked only at the first part of the holding \u2013 lifetime incarceration.\u00a0 He failed to take into account that the decision also requires a process.\u00a0 Iowa has that process.<\/p>\n

\u201cGraham<\/em>, Roper<\/em>, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.\u201d\u00a0 The governor, playing the role of judge or jury, has failed to consider individualized mitigating circumstances before he made his sweeping motion of commutation before any of the offenders had a real opportunity for commutation as it is designed in the Iowa Code.\u00a0 He broke the spirit of the law, and the spirit of many lifetime offenders who had a ray of hope.\u00a0 Not all of these offenders are \u201cdangerous\u201d, as Branstad proclaimed.\u00a0 Some are; others have made a real effort at rehabilitation.\u00a0 There should be a distinction made on the merits of each case as presented to the Board of Parole.<\/p>\n

Serving a minimum of sixty years means that one of these targeted offenders must have to be in their mid to late 70s to even begin the process of parole.\u00a0 In Iowa, the typical lifer who leaves the Iowa prison system (by death or other means including appeal) leaves after 16 years (median) of incarceration.\u00a0 The average lifer who dies in prison, dies at a median age of 56.\u00a0 So a sixty-year sentence is really nothing more than a life sentence.<\/p>\n

Governor Branstad did nothing to comply with the United States Supreme Court.\u00a0 He did everything to promote his prospect for reelection.<\/p>\n

Citations to the Iowa law mentioned above are available by sending an email to:\u00a0 insight@iowappa and placing \u201cCitations please\u201d in the subject line.<\/span><\/p>\n

\u00a9 Copyright 2012.\u00a0 Fawkes-Lee & Ryan.\u00a0 All rights reserved.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

On Monday, July 16, Governor Terry Branstad issued a commutation to 38 of Iowa\u2019s lifers.\u00a0 That group of lifers consists of those felons who are serving a sentence of life without the possibility of parole for crimes they committed as … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[42,264,17,281],"tags":[440,436,439,435,48,437,350,204,438,441,230],"class_list":["post-1157","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-fairness","category-issues","category-youth","tag-cruel-and-unusual-punishment","tag-des-moines-registser","tag-eighth-amendment","tag-governor-terry-branstad","tag-graham-v-florida","tag-iowa-board-of-parole","tag-iowa-constitution","tag-iowa-legislature","tag-miller-v-alabama","tag-roper-v-simmons","tag-united-states-supreme-court"],"_links":{"self":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1157","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1157"}],"version-history":[{"count":1,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1157\/revisions"}],"predecessor-version":[{"id":1158,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1157\/revisions\/1158"}],"wp:attachment":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1157"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1157"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1157"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}