CRIMINAL SENTENCING STUDY COMMITTEE

MINUTES

November 21, 1997 - Second Meeting of Two

MEMBERS PRESENT

MEETING IN BRIEF

Minutes prepared by Jan Simmons, Legal Counsel
Organizational staffing by Leslie Hickey, Sr. Legal Counsel

  1. Administrative Matters.
  2. Sex Offender Registry: Department of Public Safety.
  3. Judicial Perspective: Judge Van Zimmer, Sixth Judicial District.
  4. Sexually Violent Predators: Attorney General Tom Miller.
  5. Committee Discussion.
  6. Committee Recommendations.
  7. Documents on File With the Legislative Service Bureau.

COMMITTEE BUSINESS

1. Administrative Matters.
Call to Order. Co-chairperson McKean called the meeting to order at 10:15 a.m.
Approval of Minutes. A motion was made and seconded that the minutes be approved as presented. The motion passed unanimously.
Opening Remarks. Co-chairperson McKean gave an overview of the agenda, noting that he and Co-chairperson Lamberti had attended a criminal sentencing conference in San Diego, and would be discussing some of the things they had heard there during the course of the meeting. Co-chairperson McKean also observed that criminal sentencing is a very complicated issue, and cannot be resolved in just two meetings.
Adjournment. The Committee adjourned at 2:23 p.m.
2. Sex Offender Registry: Department of Public Safety.
Betsy Dittemore and Steve Conlon spoke on behalf of the Department of Public Safety (DPS), presenting the Department's recommendations regarding the Sex Offender Registry.
Currently, there are over 2,000 registrants. Most are registered by sheriff's offices. Over 11,000 inquiries have been made by law enforcement regarding the registry.
The Department intends to propose that risk assessments be performed on everyone who is required to register. Responsibility for performing the risk assessments would be split among several departments. DPS's proposal would require that the Department of Corrections (DOC) or the Department of Human Services (DHS) be responsible for performing risk assessments on incarcerated persons who are subject to registration requirements. The Department of Criminal Investigations (DCI) would be responsible for performing risk assessments on those persons who are subject to registration requirements among the following groups: persons who move to Iowa, persons who are under federal supervision, and persons who are released from court or county jail.
DPS has not yet defined how often the risk assessment needs to be updated.
Any appropriate public notification would occur after risk assessment, and would occur in consultation with all county officials. The registrant would be notified of the manner and scope of notification. DPS's proposal also addresses the procedure for subsequent notifications.
Special Agent Conlon then reviewed some current projections regarding the Sex Offender Registry. He first noted that the registry has three components of activity: (1) maintenance of the database, (2) verification and noncompliance determinations, and (3) assessment and notification.
He further noted that there has historically been low compliance with efforts to verify addresses of registrants, and that the percentage of registrants who change their address is high. The Department has made projections regarding the number of address changes in the future, according to historical percentages. During the last four months, address changes have averaged 142 per month, which is a figure higher than the amount used for the projection, which is an overall average. Under the Iowa Code, some verifications are quarterly, some are annual. As a result, the quantity of verifications is difficult to project.
This same projection process was also applied to risk assessment projections made by the Department. Issues related to risk assessment are the availability of information (an issue experienced especially with new residents) and multiple points of contact.
With regard to projected noncompliance with registration requirements, it is anticipated that a certain percentage will require a full investigation.
Public Safety. Senator Hammond asked Special Agent Conlon whether the public would be any safer with the proposed expanded program, and he responded that it was difficult to answer that question. He stated that he believes that persons hiring people to work with children would probably indicate that it would be safer. There have already been some persons on the registry who have attempted to become employed in jobs where children are involved.
Senator Hammond then observed that registrants seem to move frequently, and queried whether this fact made verification more difficult, and whether the proposed risk assessments would be available in presentence investigation reports. Special Agent Conlon indicated that the verification process is difficult, and that the Department is working with the Department of Corrections and others regarding the availability of risk assessments for various purposes. Senator Hammond stated that she was concerned that persons are lulled into a false sense of security by the mere existence of the registry, and she does not believe that registrants are being rehabilitated. Therefore, it is her belief that the Legislature should be thinking about these issues in the presentence context and locking convicted persons up for longer time periods. Special Agent Conlon indicated that the proposed legislation addresses some of those issues.
Unfunded Mandates. Senator Rehberg asked about the costs to local entities under the Department's proposal, indicating her concern that there could be unfunded mandates with respect to equipment and related requirements. Special Agent Conlon indicated that the costs were mostly taken care of, because the registry information can be accessed on existing equipment. The notification process may include some additional expenses related to overtime, copying, and similar expenses, however. He also noted that some areas with higher population have already had to dedicate an employee to registry inquiries.
Legislative Proposal. Betsy Dittemore, Legislative Liaison for DPS, next outlined key points of the legislative proposal. She first noted that it actually contained limited changes, because many issues are dealt with in rules, rather than statute, and many changes were already made to comply with the federal mandates in that is commonly referred to as Megan's Law.
The key points of the legislative proposal are as follows:
  1. Remove certain crimes under the sexually violent predator category (telephone dissemination; video; exposure) to a new category. The proposed change involves crimes that do not have a requisite degree of physical contact to qualify truly as "sexually violent."
  2. Impose a new registration requirement for persons moving to Iowa who were required to be registered in their state.
  3. Require lifetime registration for a second or subsequent offense.
  4. Require notification to DCI if a juvenile court order regarding registration is modified.
  5. Provide for the "tolling" of the registration period: If an offender has his or her probation or parole revoked for an action unrelated to the Sex Offender Registry requirements, the 10-year registration period would be halted while the person is incarcerated for the violation.
  6. Require notice of any change of name of any registrant.
  7. Authorize sheriffs to notify other states when a registrant moves. Sometimes a person moves and does not register in the other state.
  8. Expand the list of personal identifiers (name, address, date of birth) that can be used to verify that an individual is listed on the registry.
  9. Authorize the release of an "at-risk" list of registrants in the county by the sheriff and the police.
  10. Provide for changes regarding which department is responsible for performing the risk assessment, as previously detailed.
  11. Codify Session Law language from 1995.
Questions Regarding Details of the Proposal. Senator Halvorson asked if the proposal would require registration by a person who has been required to register in any previous state of residence and not just the immediately previous state of residence. Special Agent Conlon indicated that was the intent of the proposal. Senator Halvorson also asked how the "at-risk" recommendation differs from the present law. Special Agent Conlon indicated that a person would be able to go to a sheriff's office and request to view the list of at-risk offenders. "At-risk" determinations are made during risk assessment. The Department does not know currently what percentage of the list is "at-risk," because currently there are no personnel to perform risk assessments.
Representative Richardson asked if the registry database could be coordinated with the Department of Transportation (DOT) databases, in order to better track changes. Special Agent Conlon indicated that it is not necessarily easy to use DOT information, and that federal requirements pertaining to the Sex Offender Registry require annual verifications anyway.
Senator Black inquired about the penalty for not updating a registration. A first offense is an aggravated misdemeanor, a second offense is a class "D" felony, or a class "C" felony if the person commits another sex crime while not registered.
Senator Halvorson asked whether a reporter can look at an "at-risk" list and disclose its contents in a newspaper. Special Agent Conlon answered in the affirmative.
3. Judicial Perspective: Judge Van Zimmer, Sixth Judicial District.
Judge Van Zimmer introduced himself, noting that he has served as a district court judge for 12 years. Previously, he was in private practice for six years and in public practice prior to that.
OWI Statute. He commented on his concern about certain changes in made in the Operating While Intoxicated (OWI) statute during the last session. He believes there is a need for probationary sentences, especially for second sentences, because they can be used to address substance abuse problems. He understands the legislative intent to provide for uniform application of the OWI penalties.
He also noted that the change in Iowa Code section 321J.21 makes it a crime to drive under suspension, but questions why it does not provide the opportunity for the judge to impose a jail sentence. He believes the issue should be looked at on a policy basis, because it is a serious matter, and he believes that those are people who ought to be going to jail.
In addition, another change in the OWI statute appears to create a punishment of a class "B" felony with no probation for causing a death (or a serious injury) in the course of an OWI violation. Such a sentence may be an appropriate punishment for a multiple offender, but maybe not for a young first offender, for example. He would prefer that the judge have discretion in imposing a punishment.
85 Percent Rule. The new requirement requiring persons convicted of certain crimes to serve 85 percent of their sentence as a mandatory minimum effectively requires a life sentence in some cases, and affects the plea-bargaining capability of the county attorney. There is also a vast disparity in punishments between some burglary and robbery crimes, because the 85 Percent Rule applies to some robbery crimes, but not to burglary. This difference can make the punishments disproportionate for very similar crimes. However, the most serious issue that will arise from the 85 Percent Rule is what happens when persons with very long sentences have no opportunity to reduce their sentence through good behavior: They have nothing to lose because of bad behavior.
Driving Without a Valid License. The change in Iowa Code section 321.218 has had a dramatic effect on associate judges' caseloads, because serious misdemeanors (it was previously a simple misdemeanor) require a court-appointed attorney. This change has been costly to the judiciary in time and money. In addition, there are so many different ways to have a license suspended under law (possibly as many as 53), that it is difficult for the public to know what the license consequence of a crime may be. This whole issue should be reviewed, with an eye toward making the issue clearer to judges and to the public.
Intermediate Sanctions. Judge Van Zimmer requested that the Committee and the Legislature continue to look at intermediate sanctions. Availability of such sanctions would increase a judge's discretion and allow the judge to craft a punishment to fit the circumstances of particular crimes.
The judge thanked the Committee for the opportunity to address the Committee. He emphasized that judicial discretion is important because every case is different, and the sentence should fit the crime.
Indeterminate Sentences. Senator Halvorson asked about the judge's reference to the sentence for second degree murder. Judge Van Zimmer replied that the term used to be indeterminate, not to exceed 50 years. In such cases, the Parole Board determines the time of release. Now, because of the 85 Percent Rule, the sentence must be a 50-year term, but the prisoner must actually serve 85 percent of that sentence in prison. The judge has no discretion to impose a lesser sentence. Under Iowa law, basically all sentences are indeterminate, with a few exceptions, such as when there is no probation or there is a mandatory minimum or another enhancement.
Sentencing Guidelines. Co-chairperson McKean asked the judge about his opinion on the use of sentencing guidelines as a method of adding uniformity to the imposition of sentences. The judge indicated that such guidelines have been used with mixed success. The North Carolina system looks promising, but the federal system has not worked well. Minnesota has a system that is worth a look, too.
The use of sentencing guidelines is a very complicated area. If a judge has no discretion, a judge's job is certainly easier. But the results of limiting judicial discretion are not always "just." Moreover, you cannot entirely eliminate discretion within the criminal justice system by simply eliminating judicial discretion, because a prosecutor can decide whether and what to charge, and the police have the same discretion regarding the arrest.
Representative Richardson responded that society wants to know what punishment will result from a certain crime. Disparities in application, however, lead to problems in the public's perception of the justice system. The effect of the OWI change has influenced behavior: Young drinkers now have a designated driver, because they know the consequences are certain.
The judge agreed that it is important for young persons to know consequences, but judges still need discretion.
4. Sexually Violent Predators: Attorney General Tom Miller.
Attorney General Miller indicated that his office had prefiled a Sexually Violent Predator Act, a proposal that would provide for the civil commitment of mentally ill violators after the completion of their criminal sentences.
History of Sexually Violent Predator Act. The original Iowa statute addressing the commitment of sexually violent predators was modeled after a statute in Washington. It contained a delayed effective date, first to 1995, then to 1996. Meanwhile, the issue was studied, with the following conclusions: (1) sexual predators pose a significant risk to the public because of their inability to control their acts, (2) longer sentences were needed, and (3) the law needed to address prisoners already in incarceration.
Recent United States Supreme Court Decision. When the former law was repealed in 1996, sentences for repeat sexually violent offenders were lengthened. The concern at the time of the repeal was the constitutionality of committing persons after they had served a criminal sentence. However, this summer, the U.S. Supreme Court decided Kansas v. Hendricks, which upheld such a procedure, indicating that the state had an interest in keeping the public safe from this type of person. However, the Court was clear that there are restrictions which must be in place in order for such a statute to be constitutional. Civil commitment is permissible, but the process cannot be a sham procedure for further incarceration, and procedural safeguards must be in place.
Legislative Proposal. The Attorney General's Office has updated its report on sexually violent predators. The projected cost of enforcing such a law will be high. The prefiled bill requires a screening process before release, with 140 such screenings estimated to be needed each year. The proposal entails a joint effort between local law enforcement and state agencies, with approximately 14 to 28 cases referred each year to the Attorney General's Office for a determination on whether to file for civil commitment. If such a decision is made, a petition would be filed and a probable cause hearing would be held within 72 hours. The sex offender would have the right to counsel. A court-ordered mental health evaluation would occur within 45 days. A civil trial would be held on the commitment issue, with a reasonable doubt standard. An agency other than the Department of Corrections would have custody of persons committed under such a process. The appropriations issues related to this proposal have not been entirely resolved.
Facilities to Be Used. Representative Richardson asked whether it is the Attorney General's intent to use existing facilities. Attorney General Miller indicated that that possibility is being looked at, and it would help hold the cost of the proposal down. The facility would, however, have to be separate from, or segregated from, existing DOC-controlled facilities in order to pass constitutional muster. Representative Richardson asked if the facility would also be separate from existing state schools, and whether juveniles and adults could be housed together. Attorney General Miller stated that his office is looking at all options, but had not yet focused on juvenile placement. There would have to be sight and sound separation between juveniles and adults. Juveniles would be kept until age 18.
Staffing. Senator Halvorson asked if there could be sharing of staff with DOC. Attorney General Miller indicated that it could not be done directly. Perhaps there could be a separate wing in a DOC facility where DHS would be in control.
Senator Hammond stated that there is already joint control at Mt. Pleasant, so that a shared arrangement would make sense. She also asked if sexually violent predators are always mentally ill. The Attorney General indicated that the most dangerous ones would probably be considered so, but clarified that it is a different kind of mental illness than the kind of mental illness that leads to a verdict of not guilty by reason of insanity.
Representative Garman asked if there was any reason that a psychiatrist could not be paid half by DHS and half by DOC, and thereby be able to see these sexually violent predator patients. The Attorney General indicated that such an arrangement would probably work.
Cost of Proposal. Co-chairperson Lamberti asked which state's statute served as the model for the Attorney General's proposal, and the Attorney General indicated that it was modeled according to the requirements set forth in the Supreme Court case. Co-chairperson Lamberti also asked about the cost of the proposal. Attorney General Miller stated that the numbers are smaller than previous estimates, but are based on the experience of similar statutes in other states.
Civil Commitment Procedure. Senator Halvorson queried whether these cases would represent the first time the Attorney General's Office would initiate a civil commitment petition. Attorney General Miller stated that he believes that it would be, but that his office would work closely with the county attorney (whose office usually initiates such petitions), and may even defer to them if they would express an interest in it. Senator Halvorson asked if the Attorney General would need new staff to implement such a law, and the Attorney General responded affirmatively. He indicated that they are working on that issue in budget estimates and talks about appropriations for this proposal.
Public Safety. Senator Hammond asked if public safety would be improved by the proposal. Attorney General Miller stated that he believes that it would, especially as part of a bigger plan to deal with these kind of offenders.
5. Committee Discussion.
Co-chairperson Lamberti stated that he looked to this Committee's short-term and long-term proposals. For the short term, the Legislature should address the Sex Offender Registry, sexually violent predators (including appropriations), and the OWI amendments. For the long term (beyond the 1998 Session), he believes that the Legislature should address overall reform of criminal sentencing in Iowa, and that this Committee should continue to exist to accomplish that, with their continued expertise.
Co-chairperson Lamberti also commented that at the criminal sentencing conference he attended in San Diego, he heard information on sentencing guidelines, intermediate sanctions, prison system impact (prison populations), and restorative justice. He did not hear a consensus there on what strategies work.
Co-chairperson McKean added that the Sex Offender Registry and sexually violent predators were the "glitzy" issues before the Committee, but the more significant contribution of the Committee in the long run may be the overhaul of sentencing in Iowa. However, now is the time to start to develop strategies. There are racial disparities in the application of sentences that must be addressed, as well as the fact that corrections costs lead state budget increases across the country.
He also felt that he heard good information in San Diego about what is working in the area of criminal sentencing, and what is not. Some ideas may be applicable to Iowa, especially the North Carolina sentencing guidelines, rather than the federal guidelines or the unsuccessful state experiences, because such guidelines are better for sentence fairness and allocation of resources. North Carolina, after three years of operating under its system, believes that there is truth in sentencing. North Carolina imposes longer sentences for violent offenders and alternative sanctions for nonviolent offenders. Incarceration in North Carolina has leveled off, and they have discovered that greater supervision results from more available resources. Public response in North Carolina has been overwhelmingly supportive. Co-chairperson McKean spoke with a judge from North Carolina who is willing to come to discuss their experience.
Co-chairperson McKean also agrees with Co-chairperson Lamberti that the Committee should continue meeting throughout the 1998 Session and afterward. The Committee should focus on developing a longer term strategy.
Co-chairperson Lamberti emphasized that the violent/nonviolent distinction is important. Nonviolent (drug) crimes is where our prison population is exploding. Violent offenders in states that use sentencing guidelines successfully go to prison. But nonviolent offenders are dealt with in more cost-efficient ways.
Senator Halvorson asked how the various states mentioned treat drug users as compared to drug dealers in their guidelines. Co-chairperson McKean stated that he does not know the specifics, but knows that they do consider criminal history.
Motion: Continuation of the Committee. Senator Hammond moved that the Committee should continue, as proposed by Co-chairpersons McKean and Lamberti, and Senator Halvorson seconded the motion. Representative Garman indicated her support for the proposal, as did Representative Richardson. Representative Richardson also stated his belief in a need to focus on certain juvenile problems involving long-term solutions, not just short-term custody by the juvenile system. A roll call vote on the motion yielded unanimous support for the proposal.
Co-chairperson McKean thanked the Committee for their efforts.
6. Committee Recommendations.
The Committee made the following recommendations:
7. Documents on File With the Legislative Service Bureau.
Backgrounder: Restorative Justice (Minnesota Department of Corrections).
Outline of DPS's Legislative Recommendations regarding the Sex Offender Registry, outline of registry statistics, a program staffing proposal outline, proposed budget figures, and a draft of the Sex Offender Registry bill.
Outline of Remarks by Attorney General Tom Miller regarding the Sexually Violent Predator Act proposal; Proposal for new Iowa Code chapter 229A regarding sexually violent predators.
CJJP Iowa Criminal & Juvenile Justice Plan (1997 Update), and cover memorandum from Dick Moore.

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