Marty Ryan of Des Moines lobbied the Iowa legislature for 27 years and now blogs weekly. -promoted by Laura Belin
The Iowa quarter, printed in the latter part of 2004, is based upon a Grant Wood painting depicting a group of students and their teacher planting a tree outside of a county school. The statement on the coin says, “Foundation In Education.” For many decades, Iowa was noted for its first-in-the-nation education status. Likewise, Iowa has been a consistent leader in civil rights.
In fact, Iowa established some standards of equality long before the federal government or other states.
But racial disparities continue to affect Iowans in many areas of life. A reform the Democratic-controlled legislature enacted more than a decade ago has only slightly mitigated the problem.
A proud history
The first written opinion handed down by the Iowa Supreme Court was In Re: Ralph, decided in 1839, before Iowa was officially a state. In Re: Ralph held that "no man in this territory can be reduced to slavery." A slave owner from Missouri sent bounty hunters to Iowa to capture Ralph and bring him back to Missouri because Ralph defaulted on a loan to the slave owner, which was overdue. The loan was to purchase Ralph’s freedom.
The U.S. Supreme Court faced a similar question 18 years later when it decided the infamous Dred Scott (1857) case. However, unlike the Iowa Supreme Court's ruling in Ralph, the U.S. Supreme Court decision maintained the rights of the slave holder and ordered the slave returned. The issue of slavery would not be settled until the Civil War.
From the Iowa Judicial Branch summary of early civil rights cases:
In 1868, the Iowa Supreme Court decided the landmark Clark v. The Board of Directors. The case involved a 12-year-old girl who had been denied admission to her neighborhood school because of her race. The court held that segregated schools were inherently unequal when it stated that "the law makes no distinction as to the right of children … to attend the common schools." To do otherwise, the court held, would violate the spirit of our laws and perpetuate racial strife. It took 85 years for the U.S. Supreme Court to rule against segregated schools-- which it did in Brown v. Board of Education (1954).
In 1873, the court heard Coger v. The North Western Union Packet Co. This case centered on a woman who, because of her African descent, was forcibly removed from the dining car of the steamboat on which she was traveling. The woman had an unrestricted meal ticket. The Iowa Supreme Court held that the woman was entitled to the same rights and privileges as white passengers. The same conclusion was not reached by the U.S. Supreme Court until Heart of Atlanta Motel, Inc. v. United States (1964), a case that upheld the 1964 Civil Rights Act.
Iowa was also first in the nation when Arabella A. Mansfield was the first woman anywhere in the United States admitted to practice law.
In search of a solution to a modern-day problem
In light of that history, it’s shameful to say that Iowa has more recently led the nation in racial disparities associated with the criminal justice system.
The Sentencing Project, an internationally known nonprofit organization based in Washington, DC, published a 2007 report by Marc Mauer and Ryan S. King called "Uneven Justice: State Rates of Incarceration By Race and Ethnicity." Their research showed Iowa placed first among all states exhibiting “substantial variation in the ratio of black-to-white incarceration." As of 2005, about 309 white Iowans were incarcerated for every 100,000 population, while the comparable figure was 4,200 per 100,000--nearly fourteen times higher--for African Americans.
That statistic bothered Democratic State Representative Wayne Ford of Des Moines, and he set out to do something about it.
Ford visited The Sentencing Project to learn more about its research and what he, as a legislator, could do to address the disparities. Collaborating minds came up with a possible solution. Minority impact statements, modeled after environmental impact statements and correctional impact statements, could serve as a warning to legislators that they might be enacting legislation that could increase the number of minorities incarcerated in Iowa’s correctional facilities.
In 2008, Ford authored a bill “requiring a minority impact statement," with assistance from fellow Iowa House Democrats Kurt Swaim, who chaired the Judiciary Committee, and Mark Smith, who led the Human Resources Committee. House File 2393 required impact statements attached to legislation affecting minorities whenever a law “creates a public offense, significantly changes an existing public offense or the penalty for an existing offense, or changes existing sentencing, parole, or probation procedures.” Iowa House members unanimously approved the bill.
The Iowa Senate approved it by 47 votes to two (Republicans Brad Zaun and Jerry Behn cast the no votes).
Governor Chet Culver signed the bill on April 17, 2008, at the inner-city Des Moines YMCA, making Iowa the first state in the union to require a minority impact statement on a criminal justice bill before a measure can be debated on the floor of either chamber. Once again, Iowa made history on a civil rights matter.
Since 2008, Connecticut, Oregon and New Jersey have implemented similar legislation. In fact, signing that law was one of Republican Chris Christie's final acts as governor of New Jersey.
A report issued by The Sentencing Project in June 2016 found that New Jersey [had] the largest gap between black and white incarceration rates of any state in the country. While New Jersey [had] been a national leader in reducing its prison population generally, the report found that black residents are still incarcerated at 12 times the rate of white residents. Additionally, the report highlighted that, while New Jersey’s overall population is less than 15 percent black, its prison population is more than 60 percent black.
Compare New Jersey’s 12:1 ratio with the 13:1 ratio Iowa had nine years earlier. Iowa no longer has the widest gap between white and black incarceration rates, but it still remains high. Minority impact statements are intended to lower that gap further.
Minnesota and Florida have added procedures, not through the legislative process, but by rule or commission, that require racial impact statements.
Several other states have introduced legislation to require racial impact statements, including Arkansas, Illinois, Kentucky, Minnesota, Mississippi, New York, Oklahoma, and Wisconsin. This year, Arizona and Maryland have joined the ranks of introducing legislation. And the movement continues.
A minority impact statement is a significant portion of a fiscal note prepared by the Fiscal Division of the nonpartisan Iowa Legislative Services Agency. In cooperation with the Division of Criminal and Juvenile Justice Planning of the Department of Human Rights, the Fiscal Division analyzes legislation to determine if the legislation will have any impact on minorities (negative or positive).
Because Iowa has a staggering racial disparity in incarceration rates, it is important for legislators to take the time to look at these fiscal notes. When considering minority impact statements, legislators should examine whether there might be a better method of achieving the same goals while reducing the imbalance of disproportionate incarceration.
Is anybody listening?
In 2015, Wayne called me to ask if anyone was paying any attention to minority impact statements. The short answer: No.
Stephanie Fawkes-Lee and I, the public policy advocates behind Fawkes-Lee & Ryan, visited with Republican State Representative Chip Baltimore, who then chaired the House Judiciary Committee. Lobbyists often meet with committee chairs before the session in order to discuss bills that are a priority. We asked for one thing during our half-hour meeting with Baltimore. We would like to see a non-partisan person speak to the House Judiciary Committee members, ideally with lobbyists and staff present, about the appropriate use of fiscal notes, and in particular minority impact statements.
Baltimore brought up a very good argument, saying fiscal notes can be used to shame legislators into opposing otherwise good bills. Yes, we agree. That is why it would be worthwhile to have a committee meeting dedicated to explaining their usefulness and proper place in the legislative process.
After giving it some thought, Baltimore decided it would be a good idea, given the number of newly elected legislators assigned to his committee. Likewise, we discussed the idea with GOP State Representative Clel Baudler, chair of the House Public Safety Committee. He was warm to the idea of a presentation for his committee, as well.
We also met with Democratic State Senator Steve Sodders, who took to heart our request to hold a meeting on minority impact statements. He invited three presenters: Beth Lenstra from the Legislative Services Agency's Fiscal Services Division; Sarah Johnson, a Justice System Analyst from the Criminal and Justice Planning Division of the Iowa Department of Human Rights; and Lettie Prell, Research Director for the Iowa Department of Corrections. Lenstra started the presentation with a similar overview that was given in the House Public Safety Committee and House Judiciary Committee. She had been told by the House to keep the presentation short. There was no restriction set in the Senate.
Johnson followed with a handout explaining her division's work and how staff can help with data; prison population forecasting (is it projected to grow or decline based on facts and projections); and correctional/fiscal impact statements. Simulation tools can estimate what would happen when penalties are increased or decreased. She also discussed the Public Safety Advisory Board and its purpose. (Note: The Public Safety Advisory Board has merged with two other councils and is now the Justice Advisory Board.)
Prell finished the presentation with a handout presented at the Iowa Summit on Justice and Disparities the previous fall. She stated that 2011 showed the highest number of African-American inmates in Iowa. On the day she spoke, there were 2,118 African Americans incarcerated in the Iowa correctional prison system, about 26 percent of the prison population. That was hugely disproportionate, since African Americans compromised only 3.1 percent of Iowa’s population. Prell stated that the two crimes that contribute most to the problem are drug offenses and robbery, both carrying mandatory minimum sentences.
Senators asked a number of good questions following the presentations. We have no answers to these questions. Perhaps it’s time again to have someone research these questions to find answers to some of the most pressing.
Democrat Janet Petersen asked if there was any data on African Americans hiring an attorney.
Democrat Rob Hogg wanted to know if they were tracking data on other risk factors such as education level and mental illness. Hogg pointed out that the previous statement about the peak of African Americans in 2011 was inaccurate. People were not being paroled at that time and the numbers in prison were in excess of 9,000 compared to approximately 8,000 now. In reality, it was not proportional, the number of African-Americans has gone up. It seems that 26 percent has been the steady disproportionate number for the last three or four years.
Sodders wanted to know if the Criminal and Justice Planning Division could break down the data from the handout on felony convictions. Were these violent felonies?
Democrat Herman Quirmbach wanted to know if they ever went back to check the accuracy of the prison forecasts.
Sodders asked Prell, “What is causing the disparity?” She said it was drug trafficking. Specifically, marijuana. They found that African Americans are more likely to go to prison for possessing less marijuana than whites. This created a moment of shocked silence.
Democrat Kevin Kinney asked about the criminal history.
Republican Julian Garrett asked if the differences in sentences could be attributed to other factors, such as jurisdictions.
Fellow Republican Zaun brought up an issue that his constituents were reportedly concerned about. A particular fellow that had been in the news over repeated OWIs only got his hand slapped because he had more resources. It bothers the senator that people are treated differently.
What can they do as a legislative body to address the disproportionate incarceration?
Prell responded that she had been doing this since 1981. Iowa could do what Minnesota was doing for sentencing guidelines, but the state probably was not ready.
Here's the relevant part of the Minnesota Sentencing Guidelines:
“The Sentencing Guidelines embody the goals of the criminal justice system as determined by the citizens of the state through their elected representatives. This system promotes uniform and proportional sentences for convicted felons and helps to ensure that sentencing decisions are not influenced by factors such as race, gender, or the exercise of constitutional rights by the defendant. The Guidelines serve as a model for the criminal justice system as a whole to aspire to, as well as provide a standard to measure how well the system is working.”
Are sentencing guidelines really necessary?
As for what legislators can do to address racially imbalanced incarceration rates, the obvious answer is to look closely at minority impact statements. Pay attention to the statistics and determine whether the proposed legislation is the only way to address a problem; or more importantly, is necessary at all.
Is the proposed legislation the result of a knee-jerk reaction to one or two cases? Is the legislation redundant? Will it be used for the practice of plea bargaining? The statistics and projections in a minority impact statement are more important than persuasive argument by county attorneys, law enforcement, and yes, victims.
Lobbyists need to step up, also. When legislators reject an argument about minority impact statements, and they do – often – lobbyists need to refuse to back down.
For some legislators, the concept of a minority impact is foreign to them. Many will argue that justice is blind; the law is designed without color of skin in mind; that “if you can’t do the time, don’t do the crime.” Legislators need to understand the reasoning behind minority impact statements, and a lobbyist can and should explain that impact statements do not mean that you scrap a bill or an idea. It means that you have to get out of the box and explore why more people of color commit certain crimes. Are there statutes in the code that address the issue already? What alternatives are available to prevent the disproportionate incarceration of minorities? It’s a conversation starter; not a death warrant to the bill.
The important answer to addressing disproportionality in the criminal justice system has been the elephant in the room for far too long. Why is it that young African-American men (and women now, too) are disproportionately facing prison terms more than their white counterparts? Why? Let’s do something about that.
Is it working?
In 2015, Ryan Foley reported for the Associated Press that minority impact statements in Iowa “appear to be having a modest effect." A review of 61 impact statements issued since 2009 suggested that the policy has been “helping to defeat some legislation that could have exacerbated disparities and providing a smoother path to passage for measures deemed neutral or beneficial to minorities.”
[O]nly 6 out of 26 bills seen as having a disproportionate effect on minorities passed both chambers and became law. Meanwhile, bills that were rated as having no effect or a positive effect on minority incarceration rates were nearly twice as likely to pass. Fourteen out of 35 such proposals became law.
The precise effect of the statements is impossible to gauge since many factors, including cost and lobbying pressure, contribute to whether a bill becomes law. But legislators say any warning that a law could send more minorities to prison or for longer sentences affects their debates.
“It’s made a difference already here in Iowa,” said former Rep. Wayne Ford, a Des Moines Democrat who wrote the law and is advising lawmakers across the country on similar legislation. “There is no doubt in my mind that what we started years ago has begun a movement, with Ferguson and all the public safety issues that we’ve got now.”
Based on an analysis of four states currently conducting racial impact analysis (Connecticut, Iowa, Minnesota, and Oregon), Jessica Erickson made three recommendations for states considering such legislation in a 2014 commentary for the Washington Law Review. First, criminal justice bills should automatically trigger racial impact statements, as states where this is not the case produce fewer impact statements. Second, states should more clearly define the scope and categories of analysis to be included in the impact statements. Finally, states should impose procedural requirements, such as public comment or comparison with alternatives, to encourage lawmakers to preempt new sources of racial disparities in the criminal justice system.
There is a fourth recommendation from those of us in Iowa. Unique among the states, Iowa has a Justice Data Warehouse.
The Justice Data Warehouse (JDW) is a central repository of key criminal and juvenile justice information from the Judicial Branch Case Management System and information from the Iowa Correctional Offender Network (ICON) system.
Much of the data used in preparing Minority Impact Statements is stored in the warehouse. The history of knowing what sort of crimes are committed by certain segments of society is essential to determining how a related crime may affect those particular portions of the population. It’s more than race; the database can also sort information by age, gender, and location.
Other states considering the implementation of a law requiring minority impact statements must design and use a system similar to Iowa's Justice Data Warehouse. Otherwise, the process may fall to guesswork, innuendo, or worse yet, a lack of trust in information.
A minority impact statement attached to a fiscal note can be a curse as well as a blessing. Law enforcement lobbyists will downplay the usefulness of a minority impact statement or a fiscal note. To them, it is a curse. Because there are so many associations and organizations represented in the Iowa rotunda, the combined voices of those entities carry a lot of weight. Law enforcement rarely brings up a minority impact statement if it estimates that there is no impact. They would rather ignore them altogether. They are consistent in this respect.
When lawmakers bring up minority impact statements during House or Senate floor debate, it can be heart-wrenching or encouraging. Lawmakers who insist that a piece of legislation is important to cut down crime, close loopholes, enhance penalties to serve as deterrents, and give law enforcement more “tools” at its disposal to use as leverage have political intentions.
Legislators who know how to use the power of the minority impact statement can be very effective spokespersons in persuading colleagues about the effects of passing legislation that may increase the disproportionate rate of minorities in the correctional system. It does come down to a "them versus us" situation in many instances. However, the sooner a minority impact statement can be produced prior to debate, the better equipped the advocates of justice will be able to prevail.
Even with the flaws in the process, Iowa’s statute on minority impacts statements is still the best model in America, Wayne Ford has said.
Fix the law, not the punishment
I have been reading Iowa Supreme Court opinions for more than 30 years. I can predict with pretty good accuracy which statutes will be amended or created in the near future based upon the state losing a case.
No county attorney would admit that the prosecution was flawed. Journalists are told that a person got off on a technicality, or that the law is not strong enough. Never will a prosecutor admit that the defendant was charged with the incorrect crime, or that the defense attorney had done a better job of preparing for the trial, or that the case should have been settled or dropped before going to trial. Unfortunately, the answer to losing cases often seems to be enhancing a penalty or creating a new law.
A technicality can be the absence of a comma, a misplaced comma, or any other piece of punctuation that makes a statute mean something different from what legislators intended. It can be that law enforcement or prosecutors violated a fundamental constitutional right. Or, it can mean that a procedural error existed; such as not following a specific provision of the Rules of Evidence, the Rules or Criminal Procedure, or any other aspect of the judicial system.
When ordinary citizens claim someone got off because of a technicality, the real reason is often a poorly worded law. I have discussed this problem on the Fawkes-Lee & Ryan blog (see here and here).
But time and again, the legislature is the first and last stop on justification. Legislators respect law enforcement and county attorneys, as we all should. That’s not a problem, but they can be fallible. Too many criminal statutes are the result of court cases that were lost.
Some code sections have never been applied. They exist because of the lost case syndrome. However, enhancing a penalty because of a lost case is a different matter.
Enhancing penalties is one of the biggest red herrings in the lawmaking business. It looks like the legislature is doing “something” to prevent crime from occurring, but it does absolutely nothing to prevent crime. It only places a defendant in prison or jail for a longer period of time. That’s all it can do.
Enhancing penalties will not prevent crimes from being committed. Criminals do not research consequences before committing a crime, because they don't intend to get caught.
Crimes are committed under an umbrella of five factors:
• The perpetrator believes he or she will not get caught;
• The crime is committed in the heat of passion;
• The perpetrator is under the influence of drugs or alcohol;
• The perpetrator is mentally ill;
• The perpetrator is acting under duress or fear of harm or death.
What does the enhancement of a penalty do to deter a criminal act when considering the factors above? Enhancing penalties is the most ineffective manner in which to control crime, or prison population, for that matter. Unfortunately, minorities appear to be the overwhelming subjects of enhanced penalties.
Rather than creating new crimes or enhancing the penalties of laws already on the books, legislators need to look at the current law instead of the punishment. What is not working? Is the punishment too harsh for the offense?
New Iowa law likely to increase disparities
Many criminal laws are created with punishments that seem to have been pulled out of a hat. Legislation creating criminal statutes, or enhancing current statutes, appear to develop rather quickly. A few legislators do not want “their bill” watered down. And that goes for particular organizations, also. The Iowa County Attorneys Association had a bill introduced that became Senate File 2275, a bill enhancing penalties for eluding law enforcement officers.
Governor Kim Reynolds signed this bill into law on June 1. It is evident that the governor received bad information, or no information at all about the projections of the bill’s fiscal note, which states in part,
African Americans comprised 3.6% of the adult population of the State in FY 2019 and 19.6% of the convictions for Iowa Code section 321.279 offenses in FY 2019. This exceeds the population proportion of the State, which would lead to a racial impact if trends remain constant.
Governors as well as lawmakers need to pay attention to the minority impact statements when contemplating legislation with high rates of projected disproportionate rates of incarceration.
According to the Iowa Bar Association, which opposed this bill, the provisions of Senate File 2275 are redundant, unnecessary, and will do nothing to protect further the safety of Iowa citizens.
The process of developing criminal laws should be thoughtful and logical. They should not be introduced, debated, and enacted within a short period of time. Research, fact-gathering, and an extended period of hearings should precede any significant change in the law – not just for enhancing the law, but also for changing elements of the law.
The Sentencing Project's executive director Marc Mauer wrote in 2009,
Racial impact statements are particularly important for criminal justice policy because it is exceedingly difficult to reverse sentencing policies once they have been adopted. The classic example in this regard is the federal crack cocaine mandatory sentencing policies. Adopted in 1986 and 1988, at a time of widespread concern about this new form of cocaine, the laws were hastily passed by Congress with virtually no discussion of their potential racial impact. Two decades later, the results are in and they are very sobering. More than 80 percent of the prosecutions for crack (as opposed to powder cocaine) offenses have been of African Americans, far out of proportion to the degree that they use the drug, and there is broad consensus that the penalties are overly punitive.
Minority impact statements or racial impact statements are excellent guidelines to use in developing, improving, and understanding laws that have a negative impact on a certain class of citizens. Racial impact statements are more specific in focus, since they pertain only to a classification of people based upon race. Minority impact statements are broader and may cover women, persons with disabilities, and other classes of people who have been ignored, or otherwise treated differently in the criminal justice system.
Minority impact statements should be automatically attached to any legislation that affects disadvantaged groups, whether criminal laws, housing, transportation, grants, and other areas of government, local, state, or federal benefits or regulation.
We will never become equal using the scales of justice if laws continue to be made based upon knee-jerk responses. The Iron Chancellor Otto Von Bismarck said: “Laws are like sausages; it is better not to see them being made.”
As a former sausage maker, I can tell you that Bismarck’s quote is dated. Sausage made today is a clean process; the final product is much more appetizing than it was in the nineteenth century; and there are no ugly hidden ingredients, they are made in strictly sanitized facilities, and are the product of years of research and improvement.
As a former lobbyist, I can tell you that laws are still being made in the dark. That needs to change, like sausage making did.
Top image: Former State Representative Wayne Ford, author of the bill establishing minority impact statements.