Should punishment fit the crime or the risk?

A bill intended to drastically reform punishment for domestic violence has quickly moved through the legislature this year. While good-intentioned, it opens the door for use of risk assessments in sentencing, and uses ineffective mandatory minimums.

House File 2399 passed the Iowa House in March, 82-12. It was amended by the Senate to expand the definition of stalking, include GPS monitoring as stalking and classify dating violence as domestic abuse before being passed unanimously on April 6. The Senate also included mandatory-minimum punishments for stalking, harassment and repeat offenders. The House must take up the amended version before it is passed to Gov. Terry Branstad’s desk.

The bill, according to the Legislative Services Agency, would require abusers to undergo mandatory risk assessment. The assessment would be developed and validated by the Board of Parole. Presumably this would be the same type of assessment used to determine early release of those already convicted and sentenced. They are designed to predict the likelihood of recidivism and to provide information to determine rehabilitative needs.

When validated across ethnicities and genders, assessments are effective tools for parole and early release, guiding officials’ decisions about what a specific person may need to successfully rejoin society. Used at sentencing, however, the assessments create a situation where the individual is no longer being judged only on past or present actions, but on what the assessment indicates could happen in the future.

It’s a conflict former U.S. Attorney General Eric Holder warned about in 2014 while speaking before the National Association of Criminal Defense Lawyers. Risk assessments, he said, are used in several states and include such information as a defendant’s education level, neighborhood and economic background. Using these and other data points to create statistical predictions of crime “may exacerbate unwarranted and unjust disparities that are already far too common.”

“Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant’s history of criminal conduct,” Holder said. “They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.

“Equal justice can only mean individualized justice, with charges, convictions and sentences befitting the conduct of each defendant and the particular crime he or she commits.”

Holder’s remarks about unequal justice ring true when looking at Iowa statistics on domestic violence. As the LSA notes, a third of the people convicted in fiscal year 2015 for domestic abuse were black.

“In year four of this bill’s effect, it is estimated that 71 additional inmates will be serving sentences. Of these 71, 23 (32.2 percent) are estimated to be African American. This will lead to a disproportionate minority impact, as African Americans currently make up 3.4 percent of Iowa’s population,” Holly Lyons of the LSA wrote in the agency’s fiscal note on the bill.

Under the bill, the court is allowed to order those released from their sentences to wear electronic tracking devices. If such monitoring is ordered, it must be done at the expense of the person, not the state, and is subject to wage garnishment if the person fails to pay.

It’s also worth noting that lobbyists for the Iowa Coalition Against Domestic Violence and the Iowa Coalition Against Sexual Assault have registered as opposing the measure, primarily because longer prison sentences don’t always equal safety.

“Speaking with certain victims, what we have seen is longer sentences don’t reduce recidivism,” ICADV Community Engagement Director Lindsay Pringle told the Associated Press.

On Friday Pringle told me that the group is planning to support the bill with the Senate amendments, but remains disappointed with the inclusion of mandatory minimums.

Instead of tougher punishments, many who work with abuse victims say state money would be better spent on comprehensive education and focused rehabilitation. The bill does mandate participation in a batterers’ treatment program, but with more than 200 calls each day coming into the ICADV hotline, and thousands of charges filed each year in Iowa, there is obvious room for effective preventive measures.

Tiffany Allison, who survived severe domestic assault at the hands of her boyfriend and founded the Soaring Hearts Foundation that advocates for victims of violence, has been a strong backer of stiffer penalties for repeat offenders and this bill specifically. She learned that her boyfriend had abused other women and saw him sentenced to more than two years in prison, although he was released after 10 months. Within a year of release, he had severely beaten and disfigured another woman.

No one should doubt Allison’s passion for the issue or her firsthand experience with the law. Still, her case remains one of many. What would or might have worked to limit her attacker’s ability or desire to commit another crime, may be different from what would have worked in a different case. There are too many factors and complexities in play for legislators to approve a detailed and narrow, one-size-fits-all law that strips the discretionary ability of Iowa judges to decide the existing case and circumstances before them.

This column by Lynda Waddington originally published in The Gazette on April 17, 2016.