Discrimination, Discretion, and Iowa's Packed Prisons

• Author: Derek W. Miller
• Position: J.D. Candidate, The University of Iowa College of Law, 2020; B.A., University of Illinois at Urbana-Champaign, 2014
• Pages: 901-946

901

Discrimination, Discretion, and

Iowa’s Packed Prisons

Derek W. Miller*

ABSTRACT: For decades, the racial disparity in Iowa’s prison system has

persistently been one of the worst in the nation—despite the fact that the state

is home to relatively few people of color. This Note submits that Iowa’s County

Attorneys may play an outsized role in perpetuating this state of affairs by

charging and convicting disproportionate numbers of African-Americans

with more serious offenses at extraordinarily high rates. A descriptive analysis

of statistical data on charges and convictions in Iowa’s largest counties

suggests that some prosecutors’ practices contribute more heavily to this

disparity than others. Although establishing the precise scope of the problem

will require more thorough data collection and analysis, the state’s legal and

political authorities already have the power to eradicate this manifest

injustice. They need only to use it.

I. INTRODUCTION ............................................................................. 902

II.IOWA’S PRISON PROBLEM.............................................................. 904

A.DISPARITIES OF RACE AND PLACE ............................................. 905

1.An Outlier in Composition, Capacity, and Cost ......... 905

2.Imbalances Among County Contributions to

State Prisons ................................................................... 908

B.RACIAL TENSION, MARGINALIZATION, AND CRIME IN

BLACK HAWK COUNTY ............................................................ 910

C.POTENTIAL PREJUDICE AND PROFESSIONAL STANDARDS ............. 912

1.Prejudice and Prosecutorial Discretion ....................... 913

2.Normative Approaches to the Role of the

Prosecutor ...................................................................... 915

III.COUNTY-BY-COUNTY COMPARISON ............................................... 916

A.OFFENSE TYPES ....................................................................... 917

B.OFFENSE CLASSES .................................................................... 921

C.OFFENSES WITH MANDATORY MINIMUM SENTENCES ................. 925

*

J.D. Candidate, The University of Iowa College of Law, 2020; B.A., University of Illinois

at Urbana-Champaign, 2014.

902 IOWA LAW REVIEW [Vol. 105:901

IV.NEW MECHANISMS FOR OVERSIGHT AND ENFORCEMENT ............. 931

A.ELECTORAL POLITICS AS A PARTIAL REMEDY ............................ 931

B.GREATER REFORM THROUGH LEGISLATIVE AND JUDICIAL

OVERSIGHT ............................................................................. 934

1.Data for Progress ........................................................... 935

2.Substantive Proposals to Guard Against Bias .............. 937

V.CONCLUSION ................................................................................ 939

APPENDIX A .................................................................................. 940

APPENDIX B ................................................................................... 941

APPENDIX C .................................................................................. 944

APPENDIX D .................................................................................. 945

APPENDIX E ................................................................................... 946

I. INTRODUCTION

The State of Texas carried out more than one third of all executions since

1976,1 when the Supreme Court ruled that capital punishment did not

necessarily violate the Eighth Amendment.2 It is not so surprising that some

critics gave the Lone Star State a new moniker: “Death Penalty Capital of the

World.”3 Much more remarkable is the extent to which a single jurisdiction

contributed to Texas’s notoriety. Harris County is responsible for 23 percent

of all executions in Texas as of December 16, 2017—a far greater share than

any other county.4 But to stop at this statistic would understate its significance.

Having put 126 prisoners to death, this single county in Texas has executed

more people than any state in the nation.5 Perhaps the most striking aspect of

this aberration in justice is the banality of its cause: this county sent dozens to

1. James Jeffrey, How US Death Penalty Capital Changed Its Mind, BBC NEWS (Feb. 11, 2018),

https://www.bbc.com/news/world-us-canada-42984170 [https://perma.cc/8ZJZ-JP8G] (“Since

1976 and the US Supreme Court upholding capital punishment, 1,468 people have been

executed in the US—548 in Texas.”).

2. See Gregg v. Georgia, 428 U.S. 153, 169 (1976) (“We now hold that the punishment of

death does not invariably violate the Constitution.”).

3. Phil McCausland, Why Texas’ ‘Death Penalty Capital of the World’ Stopped Executing People,

NBC NEWS (Dec. 16, 2017, 5:07 AM), https://www.nbcnews.com/storyline/lethal-injection/

why-texas-death-penalty-capital-world-stopped-executing-people-n830276 [https://perma.cc/

4TF6-NJ42].

4. Id.

5. Id. Virginia and Oklahoma trail Texas for the second and third-most executions,

respectively, at 113 and 112. Id.

2020] IOWA’S PACKED PRISONS 903

the proverbial gallows pole simply because a single District Attorney,

exercising his discretion selectively and systematically for decades, made it so.6

If nothing else, the case of Harris County, Texas, warrants a broader

examination into the exercise of prosecutorial discretion at the local level.

Although relatively few states currently struggle with disproportionate

executions,7 the practice of mass incarceration exacerbates racial disparities

in prison populations nationwide.8 The Midwest’s most extraordinary outlier

is the State of Iowa, which in 2016 had the third-highest rate of adult black

male incarceration—one in every 17—and the fourth-worst black

incarceration rate overall.9 Just as Harris County contributed heavily to

Texas’s reputed propensity for capital punishment, could it be that a single

Iowa county is largely responsible for that state’s disparity in prison

population?

This Note suggests that the deliberate policy of the Black Hawk County

Attorney’s Office has made that county the largest disproportionate

contributor to racial disparities in Iowa prisons. If this is the case, it is an

injustice that stems from a consistent pattern of filing more serious charges

against a relatively high proportion of African-Americans and convicting on

those charges at elevated rates. Iowa’s prosecutors, legislators, and judicial

authorities have always had the power to address this ongoing issue; the

solution lies in building incentives for them to do so.

First, in Part II, this Note surveys the demographic makeup of Iowa’s

prisons relative to the state’s overall population, provides some historical

context to the largest source of the racial imbalance, and summarizes

competing perspectives on the prosecutors’ role in the criminal justice

6. See, e.g., Jeffrey, supra note 1 (attributing the decrease in ex ecutions, in part, to the

assertion that “prosecutors know juries are less willing to tolerate the pursuit of a death sentence

and the additional expense and time it involves”); McCausland, supra note 3 (profiling Harris

County’s new top prosecutor, who “ran . . . as a reformist candidate who pledged to use the death

penalty in a more judicious manner than her predecessors”); see also Marissa Cummings, No

Executions in Harris County This Year, Why?, HOUS. PUB. MEDIA (Dec. 18, 2017, 5:08 PM),

https://www.houstonpublicmedia.org/articles/news/2017/12/18/257025/no-executions-

in-harris-county-this-year-why [https://perma.cc/S2LR-5UCX] (“[T]he biggest reason for a

decrease of sentencing in Harris County comes down to the District Attorney’s office, according

to Jeff Newberry. . . . [of] the UH Law Center. . . . [T]he DA from 1979 to 2000 . . . sent more

than 200 inmates to death row.”).

7. See RICHARD C. DIETER, THE 2% DEATH PENALTY: HOW A MINORITY OF COUNTIES

PRODUCE MOST DEATH CASES AT ENORMOUS COSTS TO ALL 1 (2013), available at

https://deathpenaltyinfo.org/documents/TwoPercentReport.pdf [https://perma.cc/UF9B-

A9B2] (“Only 9 states carried out executions in 2012. Even fewer are likely to do so in 2013.

Most states have not had a single execution in over five years. Death sentences in recent years are

at their lowest level in four decades.”).

8. See generally ASHLEY NELLIS, THE COLOR OF JUSTICE: RACIAL AND ETHNIC DISPARITY IN

STATE PRISONS (2016), available at https://www.sentencingproject.org/wp-content/uploads/2016/

06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf [https://perma.cc/

FVR7-E7MW] (linking disparities of race and ethnicity to ongoing trends in mass incarceration).

9. Id. at 5.