Involuntary Servitude

Section 23 of Article I of the Constitution of the State of Iowa reads as follows: "There shall be no slavery in this state; nor shall there be involuntary servitude, unless for the punishment of crime." I am not sure of the distinction between slavery and involuntary servitude, but I expect a distinction existed at the time the Iowa constitution was written and adopted. What the founders of this state did not foresee was, everyone has become a criminal, and therefore, subject to involuntary servitude. This may seem an exaggeration but there is nothing illogical nor irrational about this statement. One can not go about one's business on any given day without committing a crime. Traffic violations are crimes. Without including traffic violations, the statement probably is an exaggeration; but the fact remains-a person is subject to involuntary servitude in this state as punishment for crime. Involuntary servitude may have meant the forced labor, imprisonment, or peonage of a person for the satisfaction of a debt. A criminal offense necessarily means a debt to the state in the form of court costs, fines, dare fees, law enforcement initiatives (whatever they may be), and repayment of court appointed attorney fees. We have managed to avert the literal interpretation of involuntary servitude by declaring that a person does not go to jail for failing to pay the state its due, the person goes to jail for failing to follow a court order. To those who go to jail, this is a distinction without a difference. It really doesn't matter whether a person goes to jail because he didn't pay or because he failed to do what he was told to do. Additionally the state will take the driver's license of those who do not pay. This was meant to ensure that everyone pays their fines, court costs, etc. It does not; it means that numerous people drive without licenses, ergo committing more crimes. Ironically as a few activities are no longer considered criminal such as mixed marriages and homosexuality, they are replaced by other activities. We now have hate crimes, violation of civil rights, theft of services, and numerous others. It seems we must have criminals and lots of them to make the rest of us feel good about ourselves. And yes we do have involuntary servitude--its call Prison Industries. True, most who work in and for prison industries, or are farmed out, would rather be working than sitting in a cell, but involuntary servitude it is. Because it is a preferable alternative does not exempt it from what it is.

Sex Offender Registry

The Iowa Court of Appeals has fended off another attack on the sex offender registry in State v. Iowa District Court for Story County, No. 2-998/12-0024, filed 9 January 2013. In this case the District Court modified a sex offender registry requirement and the State of Iowa filed a petition for a writ of certiorari asking the appellate courts to find the district court's act illegal--which it did. Having been involved in sex offender registry cases, with a case on appeal at the moment, this issue is of interest. The appeal courts of this state to date have rebuffed all challenges to the sex offender registry using various arguments and upholding the legislation passed by our esteemed legislature. It is clear to me being familiar with many judges and various district courts in the fifth judicial district that there is a conflict between the district courts and the appeal courts on the issue of the sex offender registry. The district courts and the attorneys practicing criminal law in them are well aware that the sex offender registry is dysfunctional, mean, and ineffective. As an example, we have had one case in Jasper County where a man was arrested because he lived within 2,000 feet of a school. The sheriff went to his door and arrested him, taking him to jail, and charging him with a violation of the requirement that he not live within 2,000 feet of a school or other place designated in the Iowa Code. The man is confined to a wheelchair. In other instances we have men attempting to live in tents at various spots in the county, because, in Newton, if the 2,000 foot rule applies to you, you cannot live within the city limits. Those of us who are actually interacting with the people restricted from living within 2,000 of a kiddy facility know full well that this law causes an unwarranted hardship on those subject to it, causes an extremely high degree of bitterness from those to which it applies, and is ineffective. In Polk County the registration requirement has created ghettos of sex offenders most of whom are harmless and burdens them with one more impediment to living a normal life which presumably is the goal of all penal legislation (normal meaning crime free). The courts should begin chipping away at these sexual offender registry statutes. This may be difficult considering the level of fear that has permeated the public over sex offenders, but it would be the right thing to do.

Plea Bargains

As the United States Supreme Court has recently acknowledged, 97% of all criminal charges, give or take a percentage or two, are resolved through plea bargaining. Plea bargaining is the process of dickering with the county attorney over what the defendant should plead to and what the sentence should be realizing that the court does not have to follow a sentencing recommendation. Defense attorneys often initiate plea negotiations early in the process, acquiesce quickly to any reasonably sounding offer, convince their client it is the best deal he will get, and voila, done and out. Never take the first offer. You may not get a better offer, but you don't know that. Tell the prosecutor that you and your client will have to discuss it. If the case is a triable one, or if the client is in jail, don't waive speedy trial. In Iowa the State has 90 days to try a defendant from the date of the filing of the trial information. It is not unheard of that the closer the 90-day deadline approaches the better the offer becomes. Defense attorneys must realize that prosecutors are overworked. Just look at the amount of crime they must deal with--its overwhelming. On the day set for trial, it is possible that a prosecutor may have several trials scheduled. He or she can't try them all. Interestingly, female prosecutors are often more difficult to deal with than male prosecutors. This does not seem to hold true for judges. But back to plea bargaining, at some point during the process defense counsel should tell the prosecutor what his client will plead to and the penalty that the prosecutor should recommend to the court in return for the plea. All the while plan on trying the case. Have it set for trial and do the things necessary to try it. A defendant can always plead guilty, even in the middle of a trial. The court can not not take a guilty plea. No need to be in a hurry about any of this, justice is slow and time is always on the side of the defendant. Don't be afraid to try a case even if you know you will lose. There are several reasons for this. First, the prosecutors learn quickly that you aren't bluffing when you say you will go to trial. Secondly, they may not be giving you anything with the offer they have made. At trial, the defendant becomes a person in the eyes of the court, not just another file. The judge relating to the defendant as a person can often have salutary effects. It is not unheard of that a court give a defendant less of a sentence after trial than it would have with an agreed upon disposition. Third, trials are fun. So, before you take a deal, sit on it for awhile. Maybe you will get a better one.

Prove It!

We forget that the issue for the prosecution in a criminal case is whether the charge can be proven. Contrary to those who wish to improve the jury system, prosecutors without enough to do, and defense attorneys who don't properly represent their clients, whether the defendant did it, commit the act charged, is not the issue. The issue is whether the government can prove it. Innumerable times I have witnessed defendants plead guilty to some charge, such as domestic assault, where no sensible jury would convict him. Usually this is done after counsel has advised client that it is the best deal he is going to get. Simply because your client committed he crime he is charged with, is not a reason to plead him guilty. You, as his defense counsel, don't care whether he did it or not-the issue is whether the state can prove it. When defense counsel begins to judge his client, to categorize him in the pantheon of evil doers, he is no longer acting as defense counsel. It is not the job of the attorney to see to it that his client gets substance abuse counseling or anger management classes. These concerns are those of social workers who are paid to make us all better human beings. It is not the concern of the defense attorney to encourage the moral improvement of those he or she represents. I have often been harangued by prosecutors stating unequivocally that my client was guilty and needed some sort of therapy. One can only respond to these harangues by the retort of "So what?" "He may or may not need counseling for drug addiction or 24 classes to show him the error of his ways when he pops his girlfriend, but first you have to prove he did it." This response normally brings out the worst in prosecutors who now think you, as defense attorney, are also a moral reprobate and are acting irresponsibly in not acquiescing in the improvement of the defendant as a human being. I often speak disparagingly of prosecutors, but some actually do act like attorneys, not social workers. They understand that if they can not prove a charge, it should be dismissed. There are no stern lectures on the failings of the defendant or that he needs to find some way to earn money without selling illegal substances. They are fully aware that they will get him next time--its just a matter of time. They tell us every person charged with a crime deserves a lawyer so let us give them one. Tell the prosecutor the defendant isn't taking a deal and is planning on trial. You will be surprised how many charges just go away.

The Right to Counsel

One of the great fictions of our time is that each of us if ensnared in the criminal justice system has the constitutional right to competent legal counsel. After all this is embedded in the Constitution of the United States, 6th Amendment; in Iowa, we find it in Section 10, Article I of the Constitution of the State of Iowa. The courts have uniformly held that counsel means competent counsel. An attorney's Code of Ethics requires that an attorney represent a client diligently and energetically. With all this in mind, one would think that the average citizen brought before the court on a criminal charge would have at his disposal competent legal assistance. Our law schools do their best to provide us with competent and professional lawyers; it is not an easy matter to be admitted to law school or do the work required while there. With all this in mind, one would think that the average citizen would be adequately represented when indicted for a crime. Unfortunately this is not so; and, it is not necessarily the fault of the lawyer. The criminal justice system is just what it purports to be-a system. The list of occupations and professions involved are almost too numerous to mention, but an attenuated list would include the following: law enforcement, lawyers, judges, clerks, jailers and prison guards, probation and parole officers, court administration personnel, pathologists, handwriting experts, DNA technicians, finger print analysts, investigators, and the hangers-on such as drug and alcohol addiction counselors, sex abuse counselors, social workers, psychologists, psychiatrists, victim advocates, all of whom are paid better than the attorney representing the defendant. Court appointed attorneys in Iowa are paid from $60 to $70 per hour to represent a criminal defendant. To someone never having been employed anywhere but Subway, this seems a significant reimbursement. It is not. The legislature is not interested in criminal defendants; they as the general public, believe them generally to be nuisances who must be dealt with as expeditiously and cheaply as possible. Most criminal defendants do not vote, especially if they are felons. Most criminal defendants are indigent. Sure there are those that have money but the general run do not. Consequently, the majority of those brought before the court on charges serious or not rely on what we in the business call "court appointed attorneys" or those hired by and working for the State Public Defender's office. In order for an attorney to make a living at representing criminal defendants, he or she must work his or her butt off. Those working for the State Public Defender's office have more cases than they can properly handle. In either case, the time, effort, and attention an attorney representing criminal defendants can reasonably spend on one client is not necessarily the amount of time, energy, and attention required to aggressively represent. There is no solution. Of all the aforementioned occupations and professions, the criminal defense attorney is the one who does not pass judgment upon the defendant and whose job it is to help the defendant to escape the clutches of all the others-a difficult and demanding job even for the best. The defendant is usually snared somewhere in the system, somewhere in the system someone has grab him to either punish him or rehabilitate him. The unfortunate part of this is that for many defense attorneys this is a perfectly acceptable disposition. Ok, the defendant escapes conviction, but is subject to supervision for two years by a person who decides where he is to live, with whom he can associate, where he can go, and what he can't drink. All the defendant wants is to be left alone. When the defense attorney joins the crowd, which happens daily, and believes that his client should be rehabilitated by therapy, counseling, or supervision, the defense attorney has become part of the system and is representing that system not the defendant.

Disenfranchisement

The Fall 2012 issue of Sentencing Times reports that as of the 2012 elections 5.85 million Americans could not vote because of felony convictions. The Republicans are winning. Unfortunately one can't blame just the Republicans; the Democrats share responsibility. Prohibiting a convicted felon from voting is discrimination of the most blatant kind; we simply don't call it discrimination. Why is it that a convicted felon can not vote? Are folks who have a felony drunk driving conviction, have been caught producing methamphetamine, or selling crack not subject to the same laws, responsibilities, use the same roads, pay the same taxes as those of us who do not have felony convictions? Or, is it simply punishment? In my view it is simply that if a person will not do what he is told to do, he won't be able to vote. There isn't much more to it than this. It is clear why the Republicans don't want these people to vote; they will not support the idea of being tough on crime and usually they are receiving some sort of government support which indicates they are morally deficient. Morally deficient people should not be given assistance; it merely engenders more moral deficiency. Moral deficiency is loosely translated as those who can not support themselves, who require disability payments, food stamps, housing assistance, free medical care, etc. Those who wish all forms of public assistance be terminated to not know what they wish; and besides, not one dollar of public assistance does not eventually end up on the pocket of those who do not receive any. It is the trickle up effect. I have had the notion at various, idle moments that at some point in the life of this country, the land of the free and the home of the brave, that we will all be required to take our turn in jail. It will be a sort of mandatory thing that all will be required to do somewhat like military subscription was at one time for all men. As more and more of us will become felons, the number of people disenfranchised will increase until the powers that be have just the people they want electing them. They will not be Romney's 47%; they will be, rather, those who have spent their lives acquiring wealth and living in gated communities having contact with the rabble only when shopping. There is nothing about this process that is catastrophic or sudden which would draw the attention of those paid to report the news; it is incremental-slow and steady. Every legislative session we create more felons; it is an annual event. There must be a big poster nailed somewhere on the halls of government reminding those elected to do our business that it is time to disenfranchise another group of citizens. Elections have become way too costly; too many people must be convinced to vote for a particular person. The fewer people who can vote, the less it will cost and the less time and effort it will take.

Education Reform Part II

I am reminded of what Carl Sagan said of a person, probably a theologian, that he was educated beyond his intelligence. This idea has stuck with me. Aristotle, and those subsequent, when putting together his manuals had no intention of publishing them in a paperback version allowing the public access. Not only did the general public have no business reading them, they would not have understood them if they had. We seem to have this underlying assumption that mankind has changed in the last two thousand years. Not so. Public schools in American throughout their history have had the job of acculturation not education. An educated high school graduate may be, in some rare instances, a happy by-product. We, as a civilization, meaning the western industrial world, have learned to operate an advanced, complicated society with idiots. Very little thought needs to be given to one's job. McDonalds and Walmart are only two examples. Once a few elementary duties are learned, nothing further is required. The further up the job echelon a person travels, the more duties one must master. No thought is required once those duties are learned. The surest method not to be hired for a position is to be over qualified. The assistant manager of Burger King has no intention of hiring someone more intelligent than him or herself. I have spoken often of the myriad of rules governing our lives. The number of rules, regulations, and laws enacted by our various governments and administrative agencies are numberless. This plethora of rules are enacted for one of two reasons: either those enacting them have the opinion that those for whom they are enacted have no ability to think for themselves or they are of the opinion that those for whom they are enacted should not think for themselves. Television and radio merely reinforce this idea. Fox News, CNN, MSNBC, the national news, and the local news all give their audience catastrophic events, accidents, sport scores, or what the weather was today. Radio bombasts either country western music, teenage angst, or ancient rock 'n roll. For a large number of citizens there is nothing upon graduation from high school that requires an education; so when someone tells a kid that they need an education, it is a falsehood. Just do what your are told and you will get along fine. Although, it would be beneficial if they could put a sentence together and speak with some semblance of grammatical correctness.

Education Reform

It is again time for the annual reform of our educational policies to ensure our children are fit to join the adult world. This wringing of hands is an annual event. We self-flagellate over the poor results of our K-12 institutions of learning. Monumental efforts have been made to improve the education received from No Child Left Behind to continuous testing ensuring progress. The usual suspects are the teachers who are now required to be degreed, certified, and developed. No question there are bad teachers, but they are given a bad rap. It is clear from simple observation that many, if not a majority, of parents are themselves uneducated, uneducable, unconcerned giving only lip service to the idea that their children should have an education. These parents can not put together a grammatically correct sentence, have not one iota of reading material in their residence, and view the world as demonstrated by their favorite TV programs. The only discernible effort made by these parents is to schlep their children to various sporting events from the age of three where they complain to other parents that the coach practices favoritism and their kid doesn't get enough playing time or become irate at a referee or umpire who inspires an emotional tantrum. If parents don't care, the kids won't care, and the teachers will not succeed. It isn't the fault of the teachers. One can attend a school program to immediately realize that the parents and extended family of the children performing view the proceedings little differently than sitting in their living rooms, watching TV, and drinking a beer. During warm-day events such as commencements, a rather important event in the life of a youngster, the audience is dressed for the beach. More importantly, there will be a graduation party where the parents may go so far as to remodel their home; set up a collage of photographs showing their new high school graduate from birth to graduation; and invite all and sundry to celebrate their kids accomplishment. The photo array will exhibit the various athletic endeavors of the new graduate and have the usual stern visual display of the boys and the I'm-so-beautiful attempts of the girls. Whether the child can actually put a sentence together is irrelevant. Not one in ten of these newly graduated scholars are capable of having a conversation with an adult nor form an opinion based upon anything other than what they have been given. It is all rather discouraging if you believe that these children are capable of being educated which most are not.

Confessions

Little has changed over the centuries as to proof of a crime committed. The percentage of criminal defendants convicted of the crime charged is most often the result of a confession. I have often wondered why people who have committed crimes, and also those who have not, readily confess their involvement. It shows a distinct lack of character. Some would argue that criminals have poor character and we should expect nothing more than immediate capitulation. Embezzlement is an interesting example. Those who embezzle from their employer will be caught eventually. It is a certainty. Those who might escape notice are those who embezzle a little, and then quit; but this happens only rarely. Most embezzlement begins small, little amounts here and there and then over time increases until it is impossible to cover the theft. Almost without exception the embezzler admits to the crime upon confrontation. Those who use illegal drugs are another example. Time and time again, a person's vehicle will be stopped by law enforcement and upon the question of whether they have anything illegal in their vehicle, the person in the vehicle immediately blurts out that he has drugs either on his person or in the car. Or with a knock on the door of a residence, the same question is asked with the same response. It would almost seem that the person using or having possession of the illegal substances invites criminal charges to be filed. Without this immediate acquiescence many fewer convictions would result. Innumerable times defense counsel is confronted with a defendant who has confessed his sins. There is little help for him. Without the confession, the defendant would normally have some sort of defense to the charge, i.e. "I didn't know it was there.", "It was the other guy's dope.". But no, the response might as well be, "Take me to jail, I did it." I am sure there has been much written on this subject. Possibly forensic psychologists have the answer. More than likely it is a combination of fear, atonement, and stupidity. In the land of atonement, the proliferation of 12 step movements, confessing one's sins and asking forgiveness for past transgressions has become the norm. "Confession is good for the soul" has morphed from a religious practice to a recovery complex. Fear is easy to understand, but misplaced. One has more to fear by confessing than by not confessing and maybe this is where stupidity comes in. Of the three factors recognizable in confessions, stupidity is not correctable. One can not be trained, educated, or induced in any manner, not to be stupid. Without stupidity we criminal defense attorneys might starve so I guess we shouldn't complain of it.