Policing bill would worsen Iowa's justice system disparities

Most of the new crimes and enhanced penalties that would be established under a policing bill approved by the Iowa House would have a disparate impact on Black people, according to analysis from the nonpartisan Legislative Services Agency.

Before passing Senate File 342, Iowa House members amended what had been a narrowly-focused bill on officer discipline to include several other so-called “Back the Blue” proposals: giving law enforcement more protection against lawsuits, increasing benefits for officers, and greatly increasing the criminal penalties for some protest-related actions.

For seven of the nine crimes addressed in the “Back the Blue” bill, now pending in the Iowa Senate, the LSA found the “conviction rate for African Americans exceeds the population proportion of the State, which would lead to a racial impact if trends remain constant.”

BLACK IOWANS DISPROPORTIONATELY CHARGED WITH CRIMES IN BILL

In 2008, Iowa became the first state “to require a minority impact statement on a criminal justice bill before a measure can be debated on the floor of either chamber.” Passed with overwhelming bipartisan support, the initiative spearheaded by then State Representative Wayne Ford was designed to address longstanding racial disparities in Iowa’s incarceration rates, by warning lawmakers if the bill they were considering could disproportionately send people of color to prison.

House Republicans didn’t wait for that analysis before bringing Senate File 342 and a 33-page amendment to the floor on April 14 (more on that below). But the Legislative Services Agency did prepare a correctional impact statement later, as part of fiscal notes on the revised bill.

The full text of the most recent fiscal note is enclosed at the end of this post. For each crime where enforcement was expanded or penalties enhanced, the LSA compared statistics on recent convictions for that offense with the proportion of white and Black people in Iowa’s adult population (89.9 percent and 4.1 percent, respectively).

Eluding: The bill “expands eluding law enforcement to include eluding law enforcement in an unmarked vehicle, or an officer who is not in uniform.” In fiscal year 2020 (which ran from July 2019 through June 2020), 284 Iowans were convicted under that code section: 74.2 percent were Caucasian, and 19.0 percent were African American. Last year, Iowa lawmakers approved and Governor Kim Reynolds signed a bill enhancing penalties for eluding to aggravated misdemeanors or felonies. The minority impact statement on that bill noted that 66.9 percent of Iowans convicted for eluding in fiscal year 2019 were white, while 19.6 percent were African American.

Improper Use of Median, Curb, or Access Facility: The bill sets a fine of $135 “for operating a bicycle, skateboard, or other pedestrian conveyance on a fully controlled-access facility.” LSA found 65.0 percent of Iowans convicted for that violation in fiscal year 2020 were white and 11.1 percent were Black.

Assault: One part of the bill broadens the definition of assault to include “intentionally pointing a laser emitting a visible light beam at another person with the intent to cause pain or injury to another.” A leader of the Des Moines Black Liberation Movement was arrested last August and charged with crimes (some later dismissed) after allegedly shining a laser into the eyes of University of Iowa police officers.

Another section “[a]dds civilian employee of law enforcement agencies or fire departments to the list of persons engaged in certain occupations against whom an assault is subject to an increased criminal penalty,” ranging from aggravated misdemeanor to a Class D felony. LSA found that in fiscal year 2020, 75.0 percent of Iowans “admitted to correctional supervision for assault offenses” were white, and 16.0 percent were Black.

Harassment: The bill expands first degree harassment (an aggravated misdemeanor) “to include harassment against another person in a place of lawful public accommodation.” The racial breakdown of Iowans “admitted to correctional supervision” under this code section in fiscal year 2020 was 73.0 percent white and 19.0 percent Black.

Criminal mischief: Under Senate File 342, “acts that damage, deface, alter, or destroy any publicly owned property, including monuments and statues” could be prosecuted as criminal mischief in the second degree, a Class D felony. Iowans “admitted to correctional supervision for criminal mischief in the second degree” during fiscal year 2020 were 74.0 percent white and 21.0 percent Black. Activists protesting systemic racism and police violence against Black people were arrested last summer for vandalizing a police car in Des Moines. A statue of legendary athlete Nile Kinnick was spray painted during an Iowa City protest, after former players described a racist culture within the University of Iowa football program.

Disorderly conduct: Obstructing any public roadway would be a serious misdemeanor, and obstructing or attempting to obstruct an interstate highway would be an aggravated misdemeanor. (A separate section exempts drivers from civil liability if their vehicle strikes and injures someone participating in a protest or who is blocking traffic on a public roadway.) Iowans “admitted to correctional supervision for disorderly conduct” in the last fiscal year were 56.0 percent white and 30.0 percent Black. Protesters in Des Moines and Iowa City marched toward interstates during some of last summer’s protests.

Riot crimes: Participating in a riot (a group of three or more people who are using unlawful force or violence or causing property damage) is an aggravated misdemeanor under current Iowa law but would be a Class D felony under Senate File 342. LSA found that just 29.0 percent of Iowans “admitted to correctional supervision for riot crime offenses” during the last fiscal year were white, while 71.0 percent were Black. Those massive disparities presumably stemmed from arrests related to demonstrations in May and June 2020, protesting police violence following George Floyd’s murder.

Unlawful assembly: This crime would be enhanced from a simple misdemeanor to an aggravated misdemeanor. Only two Iowans were incarcerated under that code section in fiscal year 2020, so the LSA concluded, “Due to low numbers of convictions of unlawful assembly, the minority impact on those populations cannot be assessed.”

One new crime created under Senate File 342 was not expected to have a racially disparate impact: a simple misdemeanor offense related to filing fraudulent financial statements.

“I WONDER WHO THIS IS AIMED AT”

Several Democrats spoke against the revised bill during the House debate on Senate File 342. State Representative Mary Wolfe (a criminal defense attorney by trade) spent the most time discussing the racially disparate impacts. I pulled this clip from her remarks before the vote on final passage.

Wolfe expressed regret that instead of combining some good provisions on protecting law enforcement with criminal justice reform proposals, Republicans added language targeting people who protest police misconduct and violence. She said new or enhanced crimes with “arbitrarily selected penalties” would not make Iowa safer or help officers. Instead, it would likely result in protesters being charged with aggravated misdemeanors or felonies.

Wolfe explained how some of the new crimes created in the bill might produce unintended consequences. For example, there were no exceptions for emergencies in language making it a crime to be on an interstate (including the shoulder) as a pedestrian or on a bicycle. So if your car breaks down and you pull over and walk to the nearest exit, you would be in violation of this provision. Wolfe assumed the language was written to target protesters blocking traffic on the highway, but it would criminalize a lot of other behavior too.

Yelling at someone in a public place is currently simple misdemeanor harassment, but under the bill it would be an aggravated misdemeanor punishable by up to two years in prison. Damaging public property would increase from a simple misdemeanor to a class D felony, punishable by up to five years in prison. Although those sections may be aimed at protesters, the language could also be used against people for trampling a flower bed in a park. Wolfe noted that “people who look like me” would not likely be prosecuted.

Blocking a sidewalk would become a serious misdemeanor, and if you do it in a group of three or more people while yelling, and others have to walk around you, you could be charged with an aggravated misdemeanor. “Again, I wonder who this is aimed at. Probably not the kid who sets their lemonade stand up, and it kind of buts into the sidewalk and people kind of have to go around it.”

Wolfe said she wished legislators had been able to review the “mandatory, required by law correctional impact statement, because I am sure that would tell us that all of these new crimes are going to have an extremely disparate impact on Iowans of color.”

Republican State Representative Jarad Klein, the House floor manger, had alleged that the vote on this bill would indicate whether lawmakers support law enforcement. But Wolfe said that when she talked to the Clinton County sheriff and her local police chief about the “somewhat ridiculous” new crimes and penalties, they understood why “I can’t vote yes on a bill that targets a specific population of Iowans.” In her view, the bill’s purpose was “to teach them a lesson, send them a message, which is basically sit down and shut up.”

“WE ARE IN VIOLATION OF STATE LAW”

Earlier on April 14, Wolfe had argued that the entire House debate on the policing bill was illegal. Here’s that speech.

Wolfe pointed out that Iowa Code Chapter 2.56 requires correctional impact statements to be prepared “prior to debate on the floor” of the House or Senate on any bill or amendment that creates a new criminal offense or significantly changes the penalties for existing offenses.

Senate File 342 did not have a correctional impact statement, because the original draft did not create new crimes or enhance penalties. It was mostly about protecting law enforcement officers “from being discharged, disciplined, or threatened with discharge” solely because the officer’s name was on a “Brady list” (denoting someone who has provided unreliable information). The Iowa Senate approved the bill unanimously in March.

Wolfe doesn’t serve on the House Public Safety committee, so wasn’t aware of plans to change the uncontroversial bill. When she learned about the planned amendment, she requested a correctional impact statement. By considering a bill without waiting for that analysis, Wolfe argued, “we will be jeopardizing the integrity” of the entire bill, not just the new crimes created but also benefits for law enforcement officers, spelled out in other sections.

Wolfe asked Klein whether he would consider deferring the bill. He declined, noting that Iowa Code states “a request for a revised correctional impact statement shall not delay action” on a bill or amendment. Wolfe pointed out, however, that she wasn’t asking for a revised statement, because one was never prepared for this bill. She reminded Klein that “the black letter of the law” requires that statement to be prepared.

AN UNUSUAL BIPARTISAN VOTE

House members approved Senate File 342 by 63 votes to 30, with an unusual partisan split. GOP lawmakers have rarely voted against any high-profile bill this year, but two House Republicans opposed this bill: Eddie Andrews and Jeff Shipley. Andrews is the only Black Republican now serving in the Iowa legislature and is married to the president of the Iowa-Nebraska chapter of the NAACP.

Eight House Democrats supported final passage of the amended policing bill: Wes Breckenridge, John Forbes, Steve Hansen, Chris Hall, Eric Gjerde, Kenan Judge, Charlie McConkey, and Dave Williams. No Democrats had crossed the aisle when the Iowa Senate passed a similar bill in March, which enhanced penalties for protest-related offenses.

WILL IOWA LAWMAKERS CARE ABOUT DISPARATE IMPACTS?

Although the LSA has spelled out the likely disparate impact on Black people, recent experience suggests such considerations won’t deter legislators from pursuing code changes in Senate File 342.

In 2015, Associated Press reporter Ryan Foley reviewed 61 minority impact statements attached to Iowa bills and found “only 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.” Former legislator Ford told the AP that the statements “made a difference” in legislative deliberations.

On the other hand, Marty Ryan has observed that few lawmakers pay attention to the data provided in minority impact statements. A longtime lobbyist (now retired) who focused on criminal justice and civil rights issues, Ryan helped organize meetings in 2015 to educate state representatives and senators about the analysis and how it might inform their decisions.

Democrats controlled both chambers when the Iowa legislature passed the bill on correctional and minority impact statements, and held a majority in the Iowa Senate through 2016. That may have increased the odds of a bill getting shelved due to concerns about disparate impacts during the period the Associated Press reviewed.

Republicans have had Iowa House and Senate majorities since 2017. Key GOP lawmakers have questioned the value of the minority impact statements, claiming that “justice is blind” or that a bill was drafted without regard to the race of offenders.

Ryan and his former lobbying partner Stephanie Fawkes-Lee wrote last June in a guest commentary for the Cedar Rapids Gazette that Iowa’s new law on eluding would have a “staggering” impact on people of color.

Minority impact statements, when used correctly, are safety nets, stop gaps. When proposed legislation projects an unfair impact on minorities, legislators and interested parties should stop, meet and discuss why minorities are convicted or impacted more by the proposed law than others. […]

The short debate that took place on Monday afternoon March 2 [2020] highlighted an attitude held by powerful legislators who don’t understand or even know the purpose of a minority impact statement.

The bill’s Senate floor manager remarked, ‘Well look, I don’t look at race for the reason we’re doing this … I don’t think race plays any part in this particular piece of legislation …”

“As far as the minority report, I can sympathize … We don’t go into code and say based on this minority, this is the penalty, based on this minority, we’re going to do something different. We apply all standards across the board.”

The problem with this narrow viewpoint is that the enforcement of the law isn’t standard across the board. Enhanced penalties are a welcome and coveted “tool in the toolbox” for prosecutors in plea bargain negotiations, but offenders who can’t afford talented defense attorneys usually serve longer sentences and stiffer fines.

During her April 21 news conference, Reynolds didn’t say whether she supported the current version of policing legislation that had cleared the Iowa House. “We’re still working through the process, and we’ll see where it goes,” she told reporters. Early this year, the governor introduced a “Back the Blue” bill that included enhanced penalties for some protests as well as a ban on racial profiling, which Republican lawmakers did not advance.

In 2019, Reynolds created a new committee with a mission to “take up the very complex issue of bias-free criminal justice in Iowa, looking at the full range of issues, including policing, prosecution, the judiciary, and corrections practices.” The committee’s recommendations on reducing racial disparities influenced the governor’s decision to advocate for a racial profiling ban. However, Iowa-Nebraska NAACP president Betty Andrews, who served on the governor’s justice reform committee, did not support the policing legislation Reynolds proposed this year.


Full text of fiscal note on Senate File 342, with correctional impact statement, published on April 23.

Top image of African American man in prison by Skyward Kick Productions, available via Shutterstock.

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