Note

Discrimination, Discretion, and Iowa’s Packed Prisons

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 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 system.10 In Part III, this Note evaluates the hard data on convictions in eight of Iowa’s largest counties to draw conclusions about how prosecutors in different jurisdictions are exercising their discretion.11 Finally, in Part IV, this Note discusses the possibility for reform through electoral politics, the need for comprehensive data collection, and the role other authorities in Iowa could play in ending the disproportionate incarceration of African-Americans.12

II.     Iowa’s Prison Problem

This Part provides an overview of Iowa’s criminal justice system, then proceeds to break down the historical, sociological, and philosophical factors that undergird the status quo. Iowa’s prison system has operated above its capacity for over a decade13—unchanging despite high-profile organizations’ condemnation of the incarceration rate14 for the state’s modest proportion of African-American residents.15 In Black Hawk County, the jurisdiction that contributes most heavily to this discrepancy,16 a history of racial tension dating back to early twentieth century labor disputes17 has exacerbated poverty18 and crime.19 Still, mass incarceration was not widespread in Iowa prior to the nationwide push to crack down on drug abuse and gun violence.20 The implementation of state-level mandatory minimums for these kinds of crimes highlights the prosecutor’s role as key decisionmaker at the critical intersection of crime and punishment.21 Legal scholars and practitioners disagree about the normative policies prosecutors should adopt in responding to systematic pressures, thereby placing the exercise of discretion at the forefront of the debate over ongoing injustice and the potential for future reform.22

A.     Disparities of Race and Place

1.     An Outlier in Composition, Capacity, and Cost

Iowa is a largely rural state23 composed of just over three million people.24 As of the 2010 Census, the vast majority of residents are white, with the largest exceptions being the roughly 6 percent who are Hispanic or Latino and the 4 percent who are African American.25 In Iowa’s prisons, however, one in every four inmates is black.26 This figure is “noteworthy,” per the Iowa Department of Human Rights, in that it has “remained stable” for at least a decade.27 In fact, this discrepancy has much deeper roots: In a report published in 1997, the Iowa Criminal and Juvenile Justice Plan took care to emphasize that “[i]n May of 1990, 22.5% of Iowa’s inmate population were African American.”28 At the time, only 1.6 percent of Iowa’s residents were black.29

When limited to prisoners convicted for offenses with mandatory minimums, the proportion of incarcerated African Americans rises to one in every three.30 Indeed, advocacy groups and public officials laid the blame on mandatory minimum sentences in 2007,31 after The Sentencing Project found that Iowa had “the highest black-to-white ratio” of all state prisons, with a rate “of 13.6-to-1.”32 Nearly a decade later, Iowa’s black incarceration rate was still among the worst in the nation at 17-to-1.33 Professor Russell Lovell, “a retired Drake University Law School professor who works with the Iowa and Nebraska branch of the NAACP,” attributed that figure to “broad-based, systemic issues,” noting that “Iowa is one of 20 states without any racial-profiling laws.”34

In combination with the length of sentences, the disparity in race-based incarceration rates has a powerful impact on Iowa’s prison population. The mean average length of stay for an Iowa prison inmate was about 21 months in the 2016 fiscal year.35 But, there have been about 9,000 felony convictions in the state per year for the last ten fiscal years, and the average sentence for people convicted of a felony offense tends to be much higher.36 The requirement that an offender serve at least 70 percent of his or her sentence attaches to class B felony offenses, offenses listed in the Violent Crime Initiative, and (often) drug trafficking offenses.37 Of those required to serve the 70 percent mandatory minimum sentence, “35.8% were African-American” in the 2017 Fiscal Year.38

The sheer number of offenders funneled into Iowa’s prison system also poses administrative and budgetary problems. As of the end of the 2017 Fiscal Year, Iowa’s prison population was 8,314, exceeding the state prisons’ capacity of 7,288.39 Although this number may seem striking, it is nothing new; since at least 2008, Iowa’s prisons have almost always operated at more than 110 percent capacity—the one exception was the 109.3 percent capacity rate in the 2014 Fiscal Year.40 As of 2014, Iowa ranked among fewer than ten states “holding a prison population equal to more than 110 percent of capacity.”41 Furthermore, the Iowa Department of Human Rights expects those numbers to swell “by about 24% over [a] ten-year period,” with “an estimated 10,396 inmates on June 30, 2027.”42

Of course, Iowa has long paid dearly to maintain its current prison system. Lawmakers attempted to manage costs in 1993, requiring that “a correctional impact statement” be issued to detail “the fiscal impact of confining persons pursuant to” any attempt to “create[] . . . [or] significantly change[] an existing public offense . . . or change[] existing sentencing, parole, or probation procedures.”43 At the time, the total budget for corrections facilities was $92,165,914.44 In the 2017 Fiscal Year, spending on corrections facilities was estimated at over $289 million.45 This expenditure swallowed up 56 percent of the state’s $512 million in expenditures for the justice system as a whole.46

To put these large abstract numbers in human terms, Iowa’s prisons cost $95.85 per inmate per day in the 2017 Fiscal Year.47 At that level of spending, the state would save $71,194,983.75 each year if it reduced the prison incarceration rate of African-Americans to the rate of white incarceration.48 Those savings would be greater than Iowa’s general fund appropriations for Agriculture and Natural Resources ($37,786,995), Economic Development ($43,744,465), the Public Defender system ($58,784,172), and The College Student Aid Commission ($64,776,888) in the 2016 Fiscal Year.49

2.     Imbalances Among County Contributions to State Prisons

The variation in countywide contributions to the state prison population hints at possible causes for the persistent overrepresentation of African-Americans in Iowa’s prisons. Due to the positive correlation between population density and crime rate,50 it would be reasonable to expect that jurisdictions with the biggest cities sentence the most people to prison. Indeed, as of March 27, 2018, nearly one in every four Iowa prisoners have been convicted in Polk County,51 which is the most populous in the state.52 If this pattern were to hold, the next-largest proportions of inmates would have been convicted by: Linn County, Scott County, Black Hawk County, Johnson County, Woodbury County, Dubuque County, and then, finally, Pottawattamie County.53 But, as the chart below illustrates, that is not the case.54

Figure 1. Contributions to Iowa Prison Population by County

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The second-largest number of black convictions—about one in every ten inmates55—comes from Black Hawk, the fourth-largest county with an estimated population of only 131,090.56 Furthermore, although only about nine percent of Black Hawk residents are “[b]lack or African-American,”57 they make up 51 percent of the people that the county has sent to Iowa prisons.58 This staggering figure is almost totally unparalleled among Iowa’s largest jurisdictions; only Scott County comes close, as 49 percent of current Iowa inmates it has convicted are black.59 Still, even though Scott County has about 35,000 more residents,60 its total prison system contribution of 641 people pales in comparison to Black Hawk’s 767.61 Put simply, despite being home to about 10 percent of Iowa’s total black population,62 Black Hawk County has effectively convicted one in every five of all African-Americans currently in Iowa’s prisons.63

Much like the gap between the prison and statewide populations generally,64 the disproportionate rate of convictions of Black Hawk County also has deep roots. A report by the Iowa Supreme Court’s “Equality in the Courts Task Force,” published in 1993, found that not only were “there . . . unexplained differences [in charging, pretrial, and sentencing outcomes in Iowa] which are not associated with any known factor but race,” but also that the variation was “most strongly noticeable in one county, Black Hawk, which is the Iowa county with the highest concentration of African[-]American defendants.”65

B.     Racial Tension, Marginalization, and Crime in Black Hawk County

It would be folly to speculate about the cause of the disparity in Black Hawk County’s criminal convictions without first stepping back to examine the underlying forces that made the area what it is today. The history of racial tension in Black Hawk County dates back to the early twentieth century, when the nascent beginnings of the Great Migration intersected with ongoing Northern industrial labor disputes.66 In 1911, when a strike at the Illinois Central Railroad Corporation threatened “to shutdown [sic] operations . . . in the entire Midwest,” the company’s management quickly “recruited African-American men in the vicinity of its Watervalley, Mississippi plant for . . . unskilled positions.”67 Despite assurance that they would be led to “the promised land,”68 the arriving black workers encountered hostility. “Local journalists argued that the rising black population brought lawlessness,” thereby expounding on the racist trope that black people are predisposed to committing crimes.69 As a direct result, “[r]estrictive covenants and the informal practices of realtors” severely limited available housing to a small area surrounding the railyard.70 Still, the number of African-Americans in Waterloo—the largest city in the county—“jumped from only 24 in 1910 to 837 in 1920.”71 That small neighborhood adjacent to the tracks, or “Smokey Row,” as it came to be known, “remains the low-income African-American community to this day.”72

Over the span of several decades, Waterloo’s black working class slowly became ingratiated with some of the area’s influential labor unions; however, the nationwide struggle for civil rights began to pose new challenges for race relations in this corner of eastern Iowa.73 Unions experienced some initial success at breaking down small barriers to equality, for example, by boycotting “local restaurants who refused services to blacks” and convincing “the newspaper to stop publishing the race of alleged criminals.”74 Still, racial tensions in Waterloo were so substantial that they had the potential to cause full-fledged riots. In 1967 and 1968, conflicts between police and young black men sparked extended periods of “civil disorder” that escalated into brawls with police and, in the latter instance, multiple arsons.75 Even though “[t]he Iowa Supreme Court outlawed school segregation in 1868,”76 housing restrictions from the early Smokey Row days “created racial segregation with the city’s schools.”77 Subpar education enabled more discrimination from employers at the exact time many of the largest factories in the area began to shut down.78 Through the 1970s and ‘80s, African-Americans of means around the county relocated from big cities in pursuit of better schools and more stable employment,79 thereby exacerbating poverty and unemployment in places like Waterloo.

These endemic barriers to progress and prosperity continue to plague Waterloo’s black community today. According to the most recent Census Bureau estimates, fewer than one in every four of the city’s residents have a Bachelor’s or graduate degree.80 The per capita income in 2017 was only $25,149.81 These general statistics appear to have an outsized effect on African-Americans. People of color own only 11.6 percent of businesses in Waterloo—despite the state-high proportion of black residents and their storied role in the community.82

The unfortunate corollary to systemic disenfranchisement is that many types of crime occur at a higher rate in Waterloo than in Iowa’s other cities. Although the overall crime index rate of 3,870.31 per 100,000 people is similar to that of Cedar Rapids in neighboring Linn County, the rate of some specific offenses is striking.83 The Waterloo Police Department reported offenses categorized as “violent crime” occurred at a rate of 736.09 per 100,000, higher than any of Iowa’s other big cities.84 The unparalleled rate of aggravated assaults, at 563.75 per 100,000, surely bolsters that rate for “violent crime” overall.85 Oddly, there were fewer murders—seemingly the desired end result of many of aggravated assaults, under the FBI’s Uniform Crime Reporting definition86—in Waterloo in 2016 than there were in Cedar Rapids, Des Moines, Council Bluffs, or Davenport. This apparent discrepancy invites an important qualification: that “[a] crime index must be based . . . on that fraction of the total criminality which is recorded by public authorities who come into contact with the crime.”87 In Part III, infra, this Note will explore the possibility that policies or norms in a prosecutor’s office may influence police behavior in a way that exaggerates the incidences of some offenses, especially those with mandatory minimum sentences.

C.     Potential Prejudice and Professional Standards

There is no quick fix for the systematic hardships undergirding heightened crime in cities like Waterloo. To be sure, widespread violent crime and the distribution of dangerous narcotics can only tear away at the shaky foundations of a long-vulnerable community. Yet prioritizing retribution for and deterrence from these crimes above all else has resulted in an injustice that has been obvious for decades:88 the disproportionate mass incarceration of the very population that was vulnerable in the first place. Long a topic of academic debate,89 reformers are increasingly asking the general public to rethink the role of the prosecutor in the criminal justice system—and in some cases, they are winning.90 Their policy platforms and electoral successes create an opportunity to recontextualize well-trodden grounds in legal scholarship to address problems that are not just normative, but also practical. Section II.C.1 discusses the role conscious and unconscious bias plays in prosecutors’ decision-making process. Section II.C.2 discusses contemporary reformers’ proposals for mitigating and eliminating that bias.

1.     Prejudice and Prosecutorial Discretion

It is widely-acknowledged that the prosecutor has an unmatched and seemingly boundless power to exercise discretion over whether and how to pursue a criminal charge.91 That discretion has its greatest practical importance at two junctures: when deciding to file initial charges, and during the negotiation of a plea deal.92 Similarly, it is perhaps unsurprising that “the potential for, and the reality of, abuse” is greatest when the prosecutor’s power is at its maxim.93 There is substantial statistical evidence to suggest that prosecutors’ own prejudice can and does shape this abuse. Perhaps the best-known example comes from an exhaustive study94 by former Iowa Law Professor David C. Baldus, which found that Georgia prosecutors were significantly more likely to seek the death penalty when the defendant was black and the victim was white.95 Lesser known but similarly rigorous studies “revealed a pattern of discriminatory charging against black and Hispanic defendants” in Los Angeles; found Florida prosecutors more willing to “upgrade” homicide charges in cases with “white victims and black offenders;” and found “that racial composition clearly influenced felony screening as well as determinations of charge seriousness” in an unspecified large midwestern city.96

Moreover, prosecutorial misconduct need not even be conscious. Past studies on implicit bias strongly suggest that many charging decisions, particularly those that “require[] an instinctual judgment,” may effectively be made in the absence of affirmative thought.97 In addition, the implicit bias of other actors—such as legislators, police, and sentencing judges—may create a sort of construct in which a prosecutor’s charging decision is effectively predetermined regardless of his or her own biases.98 For example, when a prosecutor evaluates potential charges prior to an arrest, he or she “is generally seeing things unfold through the lens of the police or investigator . . . .”99 Conversely, when the prosecutor weighs potential charges after an arrest, “the defendant’s . . . common and expected reaction[] to being in jail . . . may leave an unfavorable impression with the prosecutor.”100 To the credit of many prosecutors’ associations, there have been many deliberate and organized efforts to guard their members against the undue influence of implicit racial bias.101

2.     Normative Approaches to the Role of the Prosecutor

A prosecutor’s view of his or her own role in the criminal justice system has substantial potential to either heighten or hinder the potential for racial bias to determine the outcome of a given case. The conventional adversarial model, in which the prosecutor “is a partisan lawyer tasked with obtaining and preserving convictions,” tends to do the former.102 In contrast, alternative non-adversarial models of prosecution hinder the influence of racial bias by “call[ing] on prosecutors to step outside narrow partisanship and consider how a just system should operate” in light of “systemic concerns.”103

For its part, the Iowa County Attorneys Association (“ICAA”) maintains a set of prosecutorial standards intended to promote common goals among the 99 state offices, such as “to encourage respect for the law” and keep the “respect and trust of . . . the public.”104 These standards emphasize that “[t]he primary responsibility of the prosecutor is to seek and obtain justice.”105 In so doing, they encourage prosecutors to use their “discretion . . . to eliminate those cases from the criminal justice system in which prosecution is not justified,” to “utilize appropriate diversionary programs when . . . the effects of such diversion would be beneficial to the community and to the offender,” and “to present only those charges which [are] . . . consistent with the best interests of justice.”106 These standards are substantially similar to those of the National District Attorneys Association and to the role outlined in the ABA’s Model Rules.107

Much like the nationally-accepted standards, the practical reality that prosecutors “are the chief law enforcement officials of” their jurisdictions is inherent in the ICAA guidelines.108 That inescapable fact creates a “profound tension” between the pursuit of justice and the perceived need to effectively enforce the law by obtaining convictions.109 The ICAA attempts to reconcile this tension by narrowing the prosecutor’s “independent professional judgment . . . to [the confines of] the Iowa Rules of Professional Conduct” (“IRPC”).110

The IRPC is somewhat more restrictive on some areas, as the rules require prosecutors to “refrain from prosecuting a charge that the prosecutor knows or reasonably should know is not supported by probable cause;” “make reasonable efforts to” promote the defendant’s rights, and “make timely disclosure . . . of all . . . information . . . that tends to negate the guilt of the accused or mitigates the offense.”111 The efficacy of this ethical framework in constraining prosecutorial misconduct is the subject of Part IV.112

III.     County-by-County Comparison

This Part scrutinizes critical junctures in the adjudicative process to distinguish prosecutors’ decision-making from that of other actors with discretion in the criminal justice system (e.g., police, judges, and juries). Because the clearest exercise of prosecutorial discretion is in deciding which charges to file and how to resolve them,113 this Part assesses patterns of filing charges and obtaining convictions to compare the exercise of discretion. The use of the word “dispositions” differs from its ordinary meaning in that it refers to the charges a prosecutor originally files against a given defendant.114 The meaning of the word “convictions” includes not only those secured at trial, but also those negotiated in the course of a plea deal.115 Unlike Professor Baldus’s aforementioned full-scale statistical analysis,116 this Part merely engages in a descriptive analysis of the available data from Iowa’s Easy Access to Adult Criminal Data program (“EZAACD”).117 In so doing, this Part limits the scope of the inquiry to the eight most-populous counties in Iowa as of the 2010 census: Polk, Linn, Scott, Black Hawk, Johnson, Woodbury, Dubuque, and Pottawattamie.118 This Section is further limited in that it only compares the criminal justice system’s treatment of black and white people in those counties from 2010 to 2017.119

Section III.A is a high-level overview of convictions by EZAACD’s four types of offenses: Violent, Property, Drug, and Public Order. Section III.B breaks down the statutory class of offenses—felonies, misdemeanors, and all subdivisions thereof—to reveal apparent discrepancies in the seriousness of an offense and the race of the accused. Finally, Section III.C discusses disproportionate patterns of charging and convicting African-Americans on two of Iowa’s mandatory minimum offenses: Drug Trafficking and Robbery.

A.     Offense Types

Two clear patterns are apparent upon reviewing the charges and convictions sorted by the type of offense. First, African-Americans are significantly overrepresented, relative to their proportion of the overall population, in the numbers of those accused and convicted of nearly every type of crime in nearly every county. Second, more so than any of Iowa’s other large counties, Black Hawk County disproportionately brings charges against and secures the conviction of black defendants. A brief assessment of the raw numbers will likely help fit the following percentages into context. In every category of offense, Black Hawk County convicted the second-largest number of African-Americans.120 Despite Black Hawk being the fourth-largest county in the 2010 census, only Polk County—a jurisdiction with more than three times as many people121—convicted more black defendants.122

Beyond the raw numbers, there are striking disparities in the proportion of African-Americans charged and convicted, as well as the rate at which they are convicted. Half of the charges the Black Hawk County Attorney sought for violent offenses were against black defendants.123 Similarly, the defendants were black in half of the county’s convictions for violent offenses.124 The racial disparity between disposed charges and convictions remains consistent in most (but not all) categories; however, the rate of conviction is striking.

Figure 2. Charges and Convictions for Violent-Type Offenses

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Black Hawk County convicted on 63.68 percent of its violent-type charges overall, and 65.20 percent of violent-type charges against black defendants.125 Linn County had the second-highest conviction rate: 56.23 percent overall, 56.70 percent against African-Americans.126 All other Iowa counties convicted on violent-type crimes overall at a rate of 50 percent or lower.127 Although the Black Hawk County Attorney’s Office is pursuing charges against equal amounts of white and black defendants and convicting them at the same rate, the heightened rate of conviction appears to exaggerate racial disparities in incarceration when combined with the low overall proportion of black residents—again, only about nine percent.128

Turning to drug offenses, Black Hawk County convicted the second-highest proportion of African-Americans in this category (34.17 percent), but it did so at the highest rate: 69.24 percent.129 As the chart below illustrates, the overall rate of conviction for drug offenses in Black Hawk County was 55.84 percent, and only 50.74 percent for white defendants.130

Figure 3. Charges and Convictions for Drug-Type Offenses

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The data reflect similar conviction-rate discrepancies in Dubuque County (48.73 percent overall, 64.09 percent against black defendants); Linn County (49.68 percent overall, 60.23 percent against black defendants); and Woodbury County (52.47 percent overall, 58.18 percent against black defendants).131 Nonetheless, the disparity in Black Hawk County is more pronounced in the sheer proportion of African-American defendants, as well as the higher rate of conviction.

Black Hawk County’s proportion and rate of conviction for property offenses is remarkably similar to the data for drug-type offenses. Here, the Black Hawk County Attorney’s Office convicted the third-largest proportion of African-Americans, 38.12 percent, at a rate of 74.85 percent.132 The relative percentages of charges and convictions in this category are therefore the mildest relative to other large counties.133

Figure 4. Charges and Convictions for Property-Type Offenses

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Moreover, as the above chart outlines, the conviction rate for black defendants in Black Hawk County is only about ten percent higher than the mean average134—in contrast, the gap in black conviction rates between Black Hawk County and the average of other counties is roughly 20 percent for violent and drug offenses.135 That there are larger raw numbers of property convictions136 at an elevated rate137 across all counties in this comparison suggests that prosecutors statewide prioritize the deterrence of property crime.

For public-order offenses,138 white defendants in Black Hawk County were convicted at a substantially higher rate: 81.83 percent of disposed charges against whites resulted in convictions, in contrast to 73.79 percent for black defendants.139

Figure 5. Charges and Convictions for Public Order Type Offenses

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Still, Black Hawk County’s conspicuously low conviction rate of African-Americans, the third-lowest in this category,140 could cut one of two ways. On the one hand, the fact that many charges for public-order offenses (which tend to be low-level offenses) do not result in a conviction could show that the County Attorney’s Office evaluates cases carefully and drops charges rather than taking them to trial. On the other hand, the lower rate could indicate that the prosecutors are doing the opposite: taking all cases to trial regardless of merit, and therefore securing convictions in relatively fewer cases.

B.     Offense Classes

Variations in the number and rate of convictions of serious offenses between Iowa’s eight largest counties compound the racial disparities already apparent from the offense-type breakdown. Black Hawk County convicted 27 percent of all African-American defendants found guilty of felonies in the state between 2010 and 2017.141 Over the same period, that county’s prosecutors were responsible for 18 percent of Iowa’s black misdemeanor convictions.142 These numbers are a close second only to Polk County, which was responsible for 28 percent of African-Americans convicted of felonies and 28 percent of those convicted of misdemeanors.143 Again, given that Polk County’s total population triples that of Black Hawk County, the nearly-identical number of felony convictions alone is enough to raise eyebrows.144

Figure 6. Charges and Convictions for Felony Offenses

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Figure 7. Charges and Convictions for Misdemeanor Offenses

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Based on the charts above, which list all felonies and all misdemeanors, it is clear that Black Hawk County again convicted African-Americans at a higher rate. There, the felony conviction rate was 65 percent for black defendants and 63 percent for white defendants.145 For misdemeanors, the rate was 73 percent for black defendants and 68 percent for white defendants.146 Black and white defendants combined, the overall conviction rates for felonies as well as misdemeanors were still higher in Black Hawk County than the overall average.147 Black Hawk County convicted on felonies at a rate of 64 percent and of misdemeanors at a rate of 70 percent;148 the mean average conviction rate was 39 percent for felonies and 64 percent for misdemeanors.149 Even when applied evenly to both black and white defendants, the elevated conviction rate has an outsize effect on prison racial disparities because of the inordinate number of black defendants relative to their per capita residency.

A closer analysis of convictions for particular classes of offenses is instructive. Turning to felonies,150 between 2010 and 2017, Black Hawk County convicted the largest raw number of African-Americans for class B and class D offenses.151 The overall conviction rates, as well as those for black defendants, were the highest among Iowa’s largest counties for all but class A felonies.152 Black Hawk County convicted 44 percent of class B offenses overall, and 41 percent of those with black defendants.153 The mean average rates of the other counties were 13 percent overall, and 12 percent for African-Americans. For class C offenses, Black Hawk County convicted at a rate of 73 percent overall, and 76 percent for black defendants.154 The average rates of the other seven were 43 percent overall, and 47 percent for black defendants. Finally, Black Hawk County convicted on class D felony charges at a rate of 63 percent overall, and 65 percent for African-Americans.155 The average for Iowa’s other large counties was a rate of 37 percent overall, and 36 percent for black defendants.156 These consistent gaps suggest the Black Hawk County Attorney is disproportionately charging black defendants with felony offenses, then convicting both black and white defendants more aggressively—resulting in a disparity in the prison population.

This anomalous pattern, in which substantial numbers of African-Americans in Black Hawk County are convicted at unusually steep rates, holds with the sub-classes of misdemeanors. Iowa’s fourth-largest county convicted the second-greatest raw number of black defendants for aggravated and serious misdemeanors.157 Again, Black Hawk County’s conviction rates for aggravated misdemeanors (79 percent overall, 78 percent for black defendants) were the highest among Iowa’s large counties. For serious misdemeanors, the conviction rates were second-highest within the same group (67 percent overall, 73 percent for black defendants).158 By contrast, the average rates for the other seven counties combined were 63 percent overall and 64 percent for black defendants on aggravated misdemeanor charges; for serious misdemeanors, 57 percent overall and 61 percent for black defendants.159 Given that the defendants in these cases are facing similarly-serious offenses, it is difficult to imagine how anything other than the prosecutor’s use of discretion could cause persistent racial disparities in conviction rates in one particular county.

Figure 8. Charges and Convictions for Simple Misdemeanor Offenses

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The chart shows, however, there is a break in the aforementioned pattern in one crucial area: The conviction rates for simple misdemeanors in Black Hawk County were among the lowest in Iowa’s large counties. Black Hawk County secured convictions for this class of offenses at an overall rate of only 66 percent, in contrast the 72 percent average at which the county convicted on charges of any class.160 The other counties convicted African-Americans at a higher average rate of 76 percent; however, Black Hawk County’s corresponding black conviction rate, at 69 percent, is noticeably lower.161 Stated plainly: Those accused of the lowest class of offense in Black Hawk County are convicted at a relatively low rate compared to other counties, while those accused of every more serious class of offense are convicted at a relatively higher rate.162

Although there are possible alternative explanations for the pattern established above—like higher crime, better policing, or more effective prosecutors—they are unlikely to justify this discrepancy. More crime suggests more simple misdemeanor offenses, as they are the most common type of offense.163 Better policing would be better at detecting the most common offenses, which, again, ought to result in many more simple misdemeanors.164 A County Attorney’s office that charges appropriately and secures convictions through superior trial advocacy would not suddenly convict slam-dunk simple misdemeanors at a lower rate than class C felonies.165 That the exception to the established pattern would occur here therefore suggests a deliberate policy on the part of the Black Hawk County Attorney’s office to over-charge, refuse to negotiate charges down on plea deals, or some combination of the two.

C.     Offenses with Mandatory Minimum Sentences

A comparison of charges and convictions for mandatory minimum offenses further underscores the Black Hawk County Attorney’s role in exacerbating the racial disparity in Iowa prisons.166 The primary mandatory minimum statutes in effect from 2010 to 2017 are those for robbery and drug-trafficking offenses. The sentencing schedule for robberies requires 70 percent of the maximum sentence of 25 years to be served for first-degree robbery (class B felony).167 “70% of [the maximum]” of ten years is required for second-degree robbery “[i]f convicted on or before 6/30/2016,” or “[i]f convicted on or after 7/1/2016 . . . between 50% and 70% of [the maximum]” of ten years.168 The statute establishing an offense for third-degree robbery, an aggravated misdemeanor, only became effective on July 1, 2016.169 There is no mandatory minimum for third-degree robbery.170

Between 2010 and 2017, Black Hawk County brought 121 first-degree robbery charges against African-Americans, but only 29 against white defendants.171 Although the Black Hawk County Attorney’s office convicted both black and white defendants of this offense at a rate of about 42 percent, the disparate racial impact is clear.172 Over those same eight years, Polk County’s prosecutors convicted 50 black defendants of first-degree robbery, just one fewer than Black Hawk County.173 For second-degree robbery charges, the Black Hawk County prosecutors charged essentially the same number of black and white defendants; however, as the chart below illustrates, the conviction rate for black defendants on this charge was 12 percent higher.174

Figure 9. Charges and Convictions for Robbery in the
First Degree (Class B)

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Figure 10. Charges and Convictions for Robbery in the
Second Degree (Class C)

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Reading between the lines, not only do the data on robbery charges and convictions reveal racial discrepancies, but they also shed light on prosecutors’ policies towards filing charges and negotiating plea deals. For example, it is unsurprising that every county in this comparison had a higher conviction rate for second-degree robbery than for first-degree robbery.175 To allow a defendant to plead to the lesser felony charge is to reach a mutually beneficial agreement: The accused faces a drastically reduced sentence, while the prosecutor lightens his or her caseload. Still, pleading down does not explain why Black Hawk County’s conviction rate for second-degree robberies was 12 percent greater than the next-highest conviction rate.176

A review of Polk County’s numbers is instructive on this point. Altogether, Polk County filed 1,017 felony robbery charges, but only secured a total of 267 convictions.177 It is inconceivable that the County Attorney’s office was so ineffective at trial that they could only convict on one in every four felony robbery charges. Rather, it is exceedingly likely that the prosecutors used their discretion to allow some defendants to plead to lesser offenses and avoid onerous mandatory minimums. Moreover, six of the other seven largest Iowa counties had an even lower felony robbery conviction rate than Polk County.178 The most reasonable inference is that, lacking a statutory misdemeanor robbery charge until midway through 2016,179 it was the strong preference of Iowa prosecutors to permit pleas to a lesser offense in most cases. The one exception to that trend was Black Hawk County, which convicted on 57 percent of its total felony robbery charges, a clear outlier in contrast to the other counties’ combined mean average of 21 percent.180

The limited amount of data on third-degree robbery further support this inference. Between the codification of the offense on July 1, 2016, and the end of the available data on December 31, 2017, Iowa’s eight largest counties brought 46 third-degree robbery charges and secured 81 third-degree robbery convictions.181 The fact that there were 35 more convictions than there were charges filed indicates that many of those convictions resulted from plea deals. The natural inference, therefore, is that once the third-degree robbery offense became available, many of Iowa’s largest County Attorney’s offices accepted it as a viable alternative to the mandatory minimum offenses. Linn County appears to have embraced this option most thoroughly, filing only two charges on this offense but securing 15 convictions.182 In contrast, Black Hawk County allowed two defendants to plead to third-degree robbery, one white and one black.183 Woodbury County seems most resistant to the change in the Iowa Code, as it did not have any convictions on this offense during the year and a half it was codified.184 Notably, Woodbury County also had the second-highest conviction rates for both classes of felony robberies.185 Its conviction rate for second-degree robbery was roughly 62 percent for defendants of both races.186 For first-degree robbery, the overall rate was 17 percent—a misleading average of the 24 percent rate for black defendants and the four percent rate for white defendants.187

The data on charges and convictions for drug offenses further illustrate divergent approaches to the use of prosecutorial discretion over mandatory minimum offenses. The mandatory minimums for drug trafficking under Iowa Code § 124.401 vary significantly depending on the type and amount of the controlled substance.188 For class B offenses of the “largest quantities,” the minimum is one-third of the 50-year maximum sentence; for class B offenses of “smaller quantities” the defendant must serve “between one-half and one-third” of the 25-year maximum.189 Those convicted of class C felonies under the drug trafficking statute prior to July 1, 2017 faced a mandatory minimum of one-third of a ten-year sentence.190 There is no mandatory minimum sentence for class D or misdemeanor drug trafficking offenses.191

The raw numbers for drug trafficking offenses indicate a clear racial disparity, though the differences are largely not as striking as those apparent for robberies. Total convictions for mandatory minimum drug trafficking offenses—class B and most of class C192—numbered 4,186, while there were 3,489 convictions for class D drug trafficking.193 Notably, a pattern emerges here as several counties’ largest proportion of felony drug trafficking convictions are for class C offenses, the lowest offense with a mandatory minimum. Black Hawk County’s numbers are a useful baseline here: There are more charges filed and convictions secured for class D, fewer for class C, and fewer still for class B.194 In contrast, Polk County had 1,373 convictions for class C drug trafficking, but only 970 for class D.195 Dubuque County and Pottawattamie County also had more convictions for the class C offense than the class D offense.196 The presence of multiple such outliers suggests a policy preference in these three counties towards convicting drug trafficking offenses with a mandatory minimum sentence.

Variations in the raw-number patterns, when combined with the rate of convictions detailed in the charts below, create some nuance in the relative county contributions to the racial disparity in Iowa’s prisons. However, no county convicted more black defendants of this charge than white defendants.197 In Black Hawk County, which had the highest class B conviction rate, the defendant was black in only 31 of 185 total convictions.198 For class C offenses, Dubuque County convicted more African-American defendants than white defendants—and it did so at a much higher rate.199 What is notable is that it was the only county to do so for that class of offense.200

Figure 11. Charges and Convictions for Class B Drug
Trafficking Offenses

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Figure 12. Charges and Convictions for Class C Drug
Trafficking Offenses

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Ultimately, however, the anomalies among convictions for mandatory minimum drug offenses do little to mitigate the disproportionate black prison population. Most felony-level charges and convictions for drug trafficking were for class D offenses.201 Black Hawk County in particular was a clear outlier, as it convicted 33 percent more black defendants than white defendants at rates of 75 percent and 57 percent, respectively.202 The continued pattern of higher conviction rates for black defendants—present in this class of offense in seven of eight counties203—exacerbates even slight disparities in the raw numbers. And though there is technically no mandatory minimum for this class,204 the extensive sentencing “enhancements” in the Iowa Code produce a similar effect.

IV.     New Mechanisms for Oversight and Enforcement

Given that local prosecutors’ discretionary policies appear to be a primary source of the racial disparity in Iowa’s prisons, the question remains as to how that disparity could be eliminated. Legislative efforts to reduce mandatory minimums205 and to bear in mind the fiscal consequences of changes to criminal statutes have seen only limited success;206 an unscrupulous prosecutor could still pursue higher-class charges for defendants of a given race, ultimately leading to higher sentences for certain groups of people. Similarly, given the ongoing discrepancies in convictions and conviction rates outlined in Part III, it is unclear to what extent the ICAA standards and the IRCP have a tangible impact on local prosecutors’ exercise of discretion.207 It is therefore clear that shaping the use of prosecutorial discretion likely requires making more direct changes to the incentive structures at work during the decision-making process. Section IV.A evaluates the potential for reform through electoral politics. Section IV.B then recommends a set of concrete proposals that would allow state authorities to operate as a check on prosecutorial conduct that runs counter to Iowan values.

A.     Electoral Politics as a Partial Remedy

In a recent Iowa Law Review article, Federal Public Defender Eric S. Fish identified three incentive structures that prioritize convictions at the expense of other prosecutorial goals: “electoral politics, offices’ focus on conviction rates, and a general culture of competition.”208 Among these, Fish finds electoral politics to be the weakest force. He states that there is “reason to doubt the existence of [the] electoral incentive” because “prosecutorial elections are low-information affairs . . . in which conviction rates . . . bear little apparent relationship to . . . success.”209 Fish then intimates that the relevant question in this context is “whether prosecutors perceive that their conviction statistics matter for reelection.”210

There is a lot of merit in this subtle distinction, but Fish may give too little weight to the public’s changing attitudes on issues of crime and punishment. It is true that the popular conception of electoral politics begins with the presumption that candidates are rational actors who, in the interest of their election, closely monitor public opinion and adjust their behavior accordingly.211 As a result, a prosecutor running for reelection may decide that admitting past mistakes could help his or her campaign by bolstering the public’s perception of the prosecutor as a genuine seeker of justice. But many prosecutors are reluctant to acknowledge error on their part, even after they have been confronted with overwhelming and incontrovertible evidence, like when DNA testing exonerates someone who he or she has convicted.212

A prosecutor can thus become politically vulnerable if his or her legal judgments run counter to public opinion.213 This is particularly true if the judgment at issue relates not to an objective matter of law but a normative question of policy. Growing public opposition to mass incarceration, for example, has undergirded the electoral success of reformer-prosecutors214 and led some jurisdictions to reexamine related legal doctrines.215 It is not the prosecutor’s particular decisions that carry weight but the community’s perception of their cumulative effect. The end result is that electoral pressure can result in prosecutorial reform—even if only by electing a new prosecutor. Indeed, Fish acknowledges the broader implications of recent victories by “reform-minded district attorneys in . . . high-profile races . . . .”216

That caveat aside, it is entirely fair for Fish to note the significant limitations in pursuing prosecutorial reform through the ballot box alone. For one, even the successful election of a reform candidate may result in unexpected administrative hurdles. Noted reformer-prosecutor Larry Krasner “ousted 31 members of the [Philadelphia District Attorney’s] office . . . just three days after he was sworn in.”217 His spokesman characterized the decision as a “broad reorganization” indicative of Krasner’s “intention to take the office in a different direction.”218 It is difficult to gauge whether veterans were, as some claimed, “willing to stay and willing to work for [Krasner]” and his reform agenda.219 However, there is surely a loss of institutional memory commensurate with the departure of the “deputy of the pretrial division,” the “chief of the Family Violence and Sexual Assault Unit,” the “chief of the Diversion Courts Unit,” and “[a]s many as a third of the office’s homicide prosecutors . . . .”220

Additionally, electing a new prosecutor does not address structural concerns in the criminal justice system. Even if the new prosecutor has an ambitious reform agenda,221 the unfettered exercise of discretion can still lead to seemingly paradoxical outcomes.222 Turning again to Philadelphia, activists have grown frustrated with Krasner after only his first year in office. Students at Yale Law School rescinded Krasner’s invitation to speak at the 2019 Rebellious Lawyering Conference after “Krasner’s office appealed [a] ruling” that “[Mumia] Abu-Jamal could reargue” a challenge to his murder conviction.223 Krasner’s decision confused activists because the ruling was based on the fact that “then-Chief Justice Ronald D. Castille did not recuse himself due to his prior role as Philadelphia [D]istrict [A]ttorney.”224 Similarly, Robert Outlaw, who maintained his innocence after being convicted of murder in 2004, faced resistance from the Krasner’s office when he petitioned for a new trial on the basis of newly-released exculpatory evidence.225 When a judge “vacated Outlaw’s conviction,” Krasner’s spokesman “said the office had not decided whether it will appeal the order or prosecute Outlaw a second time.”226

Finally, it bears observing that it is always possible to lose an election, at which point there is little alternative but to endure the consequences—absent the investment of time and energy in other means of pushing reform. In Clark County, Nevada, a reform candidate lost the primary election to an incumbent Democrat who sought the death penalty in several cases in his first term.227 In California, four reform candidates “[i]n Sacramento, Alameda, and San Diego counties . . . lost” their primary races despite significant backing from “wealthy liberal donors and activists.”228 The litany of high-profile losses in the 2018 primary races underscores the difficulty reformers face in unseating incumbents, even after the Black Lives Matter movement brought criminal justice reform issues to the forefront of our national debate.

B.     Greater Reform Through Legislative and Judicial Oversight

In light of the limitations of electoral politics as a means of reform, the most-encouraging prospects for eliminating the racial disparity in Iowa’s prisons lay with the state’s legislature and court system. Section IV.B.1 highlights key data collection and distribution policies that would allow for the public and political authorities alike to identify and target injustice with greater precision. Section IV.B.2 reviews substantive proposals that would mitigate and eliminate Iowa’s disproportionately black prison population.

1.     Data for Progress

This Note, as well as similar works by Iowa’s own Department of Human Rights and third-party groups like the Sentencing Project, makes the kind of claim that tends to bring about some pushback. Many are likely to doubt that policies or individuals within certain County Attorney’s offices contribute so heavily to the racial disparity in Iowa’s prisons. But even the most-strident skeptics may choose to find common ground with this Note in asserting the need for more data.

To definitively prove or disprove the cause of the apparent disparities illustrated in Section III it would be necessary to isolate police conduct from prosecutors’ decision-making. To that end, the Iowa Department of Human Rights’ recommendation from 1997 is useful: that “County [A]ttorney[‘s] offices should be required to keep records of the charges on initial arrests, the charges ultimately filed, the arrests they chose not to prosecute, the reasons they chose not to prosecute, and the race and gender of the alleged perpetrators.”229 The distinction between charges on arrest and charges ultimately filed is crucial because it bears directly on the level of deliberation occurring in a given office. Prosecutors who tend not to investigate law enforcement officers’ stated charge on arrest may, in effect, systematically overcharge the residents of their jurisdiction for minor offenses. This, in turn, may reveal whether implicit bias is creeping in at times when the exercise of discretion “requires an instinctual judgment.”230 The Department of Human Rights’ recommended distinctions on decisions not to prosecute, though burdensome, would be determinative in concluding whether and to what degree race is a factor in the exercise of discretion in County Attorneys’ offices.

The Department of Human Rights made several other recommendations that would allow for the collection and dissemination of more-granular data. To examine current practices in the use of preemptory challenges, as well as implicit bias within juries themselves, “race information [could] be included” in the Jury Management Subsystem of the Iowa Court Information System.231 Similarly, it would be possible to examine implicit or explicit bias among defense attorneys if there were “a data field on the Iowa Court Information system [that could] be created to . . . indicate the type of attorney retained in each case.”232 Tracking the type of attorney that a defendant retained would also help to distinguish race from other socio-economic factors. For example, if it were the case that fewer black defendants could afford a private attorney, and that private attorneys were more effective at securing favorable plea bargains, then perhaps wealth (or more precisely, the lack thereof) could explain some variation in conviction rates.

On a practical note, it is worth noting that the Department of Human Rights’ 1997 report makes recommendations directly to the Iowa Supreme Court.233 This reporting structure suggests it is well within the power of the judiciary to institute, fund, and enforce these policies. Of course, there is no apparent reason why the Iowa Legislature could not also compel the collection of this data.

Another proposal to improve data collection on prosecutorial discretion, as well as shed light on incarceration in Iowa more broadly, is to compel regular reporting on the capacity and makeup of each county jail. For example, coverage of the Black Hawk County Jail in the WCF Courier suggests persistent overcrowding problems. A new 272-bed facility began operating in September of 1995.234 It was nearly full by November of 1997, with more than two-thirds of inmates incarcerated as a pretrial detention measure.235 In 2015, despite a 15 percent decrease in the county’s crime rate—with drops of nearly 66 percent for robberies and burglaries—the average daily population of the jail only decreased “from 276 inmates in 2014 to 262 [in 2015].”236 The Black Hawk County Sheriff explained that the discrepancy persists because “those who remain in jail awaiting trial facing serious charges and are less likely to post bail.”237 Taken together, these reports could suggest that this County Attorney’s Office takes a heavy-handed approach to pretrial conditions. On the other hand, these reports could suggest that Black Hawk County is simply one of several Iowa counties that has struggled with overcrowding for decades.

Unfortunately, it is not currently practical to make any sort of informed comparison due to the scattershot organization of county jail population records. The lack of any regular, centralized reporting on jail populations is perplexing because of Iowa Code § 356.49, which states:

A county sheriff shall file, on a monthly basis, a written report with the director of the [D]epartment of [C]orrections. The report shall include, but not be restricted to, the total number of men, women, and juveniles held in jail for the reporting month. The director shall adopt and provide a uniform reporting form to be utilized by county sheriffs.238

The apparent oversight in this statute is that it does not require the Iowa Department of Corrections to regularly release compilations of those monthly reports. As a result, the most recent comprehensive document available appears to be a 2003 report on minimum jail standards prepared per Iowa Code § 356.36.239 The county jails generally release public reports of their daily jail populations in a uniform structure; however, they tend to do so through dynamic web pages that refresh with each day’s changes.240 It is therefore burdensome to track the daily population of even a single county jail over a significant period of time. Still, because some record of this data is reported as a matter of law, follows that a legislative act, or perhaps even an executive order, could compel the regular release of current and historical reports on jail populations.

2.     Substantive Proposals to Guard Against Bias

Regardless of additional data, authorities in Iowa’s legislative and judicial authorities can and should take several steps to guard against the racial bias in the criminal justice system. State-level judges might consider following the lead of Mark W. Bennett, Senior Judge of the United States District Court for the District of Northern Iowa. Upon taking one of Harvard University’s implicit bias tests, Judge Bennett “ultimately realized that the problem of implicit bias is a little recognized and even less addressed flaw in our legal system, particularly in our jury system.”241 He therefore offers this instruction to the jury before the end of all trials in his court:

As we discussed in jury selection, growing scientific research indicates each one of us has “implicit biases,” or hidden feelings, perceptions, fears and stereotypes in our subconscious. These hidden thoughts often impact how we remember what we see and hear and how we make important decisions. While it is difficult to control one’s subconscious thoughts, being aware of these hidden biases can help counteract them. As a result, I ask you to recognize that all of us may be affected by implicit biases in the decisions that we make. Because you are making very important decisions in this case, I strongly encourage you to critically evaluate the evidence and resist any urge to reach a verdict influenced by stereotypes, generalizations, or implicit biases.242

When this jury instruction came before the Iowa Supreme Court in 2017, Justices Appel and Waterman disagreed on whether there was empirical support for its efficacy. Justice Appel stressed that “[i]t was not long ago . . . when even express racial discrimination was permitted in courtrooms all across the county,” and the instruction would serve our justice system’s goal “of achieving fundamental fairness.”243 Justice Waterman, citing concerns that implicit bias instructions could backfire, noted that though the Iowa Supreme Court “[has] required all Iowa judges to undergo implicit-bias training and testing,” that he “would not require courts to give an implicit bias jury instruction without further research and study.”244

It is therefore clear that reasonable judges can disagree on whether this particular instruction will achieve its desired effect. It is similarly clear that a judge who believes some sort of implicit bias instruction would improve courtroom outcomes is well within his or her power to provide one. Moreover, if the Iowa Legislature—having made a finding based on available research—were to decide that too few state judges used these instructions, the legislature could consider requiring those instructions by statute.

On the topic of jury instructions, another proposal is for the legislature to inform the public to exercise its own discretion through jury nullification. One example comes by way of the Tennessee State Senate, where Senator Nicely has proposed a change in the state code’s section on jury instructions. In particular, this bill would inform the jury that they “may still find based upon the facts . . . [that] a guilty verdict will yield an unjust result” regardless of whether “the state has proven all of the elements of the offense charged beyond a reasonable doubt.”245 To be sure, this is an extreme suggestion that is at odds with contemporary legal practice. But in this context, where the major reformers are promising to make change through selective non-enforcement, it may be worth considering whether to empower members of a jury to make greater use of their discretion.

If substantive remedies to racial bias through jury instruction appear insufficient, it is likely because they are—absent larger changes to the legal issues at the root of mass incarceration in Iowa. The legislature can and should take several broader steps to avoid putting reform prosecutors in the position of using their discretion for selective non-enforcement. A far less-radical move would be to follow the lead of the ten states that have legalized possession of personal amounts of cannabis. In fact, Democratic State Senator Joe Bolkcom has announced his intention to propose regulating cannabis “like beer,” turning the “$12 million to enforce . . . possession violations” into “$40–$70 million in new state and local revenue.”246

Another action the legislature could take to cut to the root of Iowa’s disproportionate prison population is to repeal the remaining mandatory minimum statutes. The legislature moved in this direction by recently removing mandatory minimum sentences for aggravated misdemeanor robbery charges. There were two problems with this half measure. First, many counties simply have chosen not to file aggravated misdemeanor robbery charges, or to allow defendants to plead down to that level. Second, the bulk of the African-Americans currently serving extraordinarily long sentences are doing so under the mandatory minimums for drug-related offenses. A serious effort at eliminating racial disparities in Iowa prisons should begin with eliminating mandatory minimum sentences.

V.     Conclusion

Data on county-level patterns of charges and convictions strongly suggest that the disproportionate racial makeup of Iowa’s prisons is rooted deeply in the prosecutorial discretion exercised by a few of the state’s County Attorneys. The disparity appears to arise from jurisdictions such as Black Hawk County, where the complex intersection of race and class has increased the majority-white community’s tolerance for selective prosecution of African-American defendants for more serious offenses. Though the possible election of reform candidates could be a mitigating factor, the ultimate resolution of this problem requires strong legislative and judicial oversight.

Appendix A

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Appendix B

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Appendix C

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Appendix D

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Appendix E247

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  1. [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. [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. [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. [4]. Id.

  5. [5]. Id. Virginia and Oklahoma trail Texas for the second and third-most executions, respectively, at 113 and 112. Id.

  6. [6]. See, e.g., Jeffrey, supra note 1 (attributing the decrease in executions, 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. [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. [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. [9]. Id. at 5.

  10. [10]. Infra Part II.

  11. [11]. Infra Part III.

  12. [12]. Infra Part IV.

  13. [13]. See Iowa Dep’t of Corr., FY2017 Annual Report 20–21 (2017), available at https://doc.iowa.gov/sites/default/files/documents/2017/12/idoc_annual_report_fy2017_0.pdf [https://perma.cc/F2ES-Z67W] (charting Iowa’s prison population over time, with the total numbers exceeding 2017’s listed capacity of 7288).

  14. [14]. See, e.g., Sarah Fineran, Iowa Dep’t Human Rights, The Correctional Policy Project: Iowa Prison Population Forecast FY 2017–FY 2027, at 18 (2017), available at https://humanrights.iowa.gov/sites/default/files/media/2017%20Iowa%20Prison%20
    Population%20Forecast%20FY%202017-FY%202027.pdf [https://perma.cc/ZLA6-UUUT] (“It should be noted that African-Americans are over represented in Iowa’s prison population, but particularly so for [mandatory minimum offenses].”); Nellis, supra note 8, at 3–4 (identifying Iowa’s black incarceration rate as one of the top five highest of all states); Iowa Profile, Prison
    Pol’y Initiative, https://www.prisonpolicy.org/profiles/IA.html [https://perma.cc/2YMP-4D3C] (“People of color are overrepresented in [Iowa’s] prisons and jails.”).

  15. [15]. See QuickFacts: Iowa, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/
    table/ia/POP010210 [https://perma.cc/25W8-N6RN] (estimating Iowa’s proportion of black residents at 4.0 percent). The Census Bureau estimates that Iowa’s population has grown by only around 110,000 between 2018 and 2010. See id. For that reason, this Note consistently uses the actual 2010 Census numbers to maintain consistency between the Note and reports on population from other sources.

  16. [16]. See infra Section II.A.2.

  17. [17]. See Pat Kinney, Great Migration Railroad Strike 100 Years Ago Brought an Influx of African-Americans to Waterloo, Courier (Feb. 1, 2011), https://wcfcourier.com/news/local/great-migration-railroad-strike-years-ago-brought-an-influx-of/article_3ac5cdf6-cef7-5d54-943a-742b0
    4395ac6.html [https://perma.cc/K8FM-V24R] (providing a brief overview of the circumstances under which black families first moved to Waterloo in large numbers, and resulting strife).

  18. [18]. Compare QuickFacts: Waterloo City, Iowa, U.S. Census Bureau, https://www.census.gov/
    quickfacts/fact/table/waterloocityiowa [https://perma.cc/38ND-32HH] (listing a poverty rate of 17 percent), with QuickFacts: Iowa, supra note 15 (revealing that Waterloo’s poverty rate is about seven percent higher than the state’s overall rate).

  19. [19]. See generally Uniform Crime Reporting 2016, Iowa Dep’t Pub. Safety, http://www.dps.
    state.ia.us/commis/ucr/2016/iacrime_2016.shtml [https://perma.cc/Y28N-JJAZ] (follow “Agency” hyperlink listed under “Table 1” heading to open spreadsheet, then search the document for the names of relevant cities) (reporting high rates of violent crime and aggravated assault in Waterloo).

  20. [20]. See Fineran, supra note 14, at 24 (“From 1925–1975, the Iowa prison population remained steady at about 2,000 inmates with a peak population around 3,000 inmates in the 1930’s. Since 1975, Iowa’s prison population has reached more than 9,000 inmates and is forecasted to increase to 10,396 inmates by 2027.”).

  21. [21]. See Developments in the Law: Race and the Prosecutor’s Charging Decision, 101 Harv. L. Rev. 1520, 1524–26 (1998) (suggesting mandatory minimum sentences influence a prosecutor’s decision to pursue felony charges in some cases but not others) [hereinafter Race and the Prosecutor’s Charging Decision].

  22. [22]. See infra Section II.C (evaluating the immense power inherent in prosecutorial discretion).

  23. [23]. See 2010 Census: Population Density Data (Text Version), U.S. Census Bureau, https://www.census.gov/data/tables/2010/dec/density-data-text.html [https://perma.cc/
    QP3J-YW6B] (last updated May 4, 2018) (indicating Iowa is solidly within the bottom-third of states when measured by population density, with a mere 54.5 people per square mile of land area).

  24. [24]. See QuickFacts: Iowa, supra note 15.

  25. [25]. Id. Other racial groups make up a relatively small portion of Iowa’s population. About 2.7 percent of residents are “Asian alone,” 0.5 percent are “American Indian and Alaska Native alone,” and 0.1 percent are “Native Hawaiian and Other Pacific Islander alone.” Id. About two percent of residents identify as being of “Two or More Races.” Id.

  26. [26]. See Fineran, supra note 14, at 18–19.

  27. [27]. Id. at 18.

  28. [28]. See Iowa Dep’t Human Rights, Iowa Criminal and Juvenile Justice Plan: 1997 Update 5, 7 (1997), available at https://humanrights.iowa.gov/sites/default/files/media/aaincarc%5B1
    %5D.pdf [https://perma.cc/Q4FB-MAW4] (observing that discrepancies in prosecutorial procedures “[are] most strongly noticeable in one county, Black Hawk”).

  29. [29]. Id. at 5.

  30. [30]. Fineran, supra note 14, at 18.

  31. [31]. See Charly Haley, Iowa Still Near Top for Locking Up Blacks, Study Says, Des Moines Reg., (June 15, 2016, 7:30 PM), https://www.desmoinesregister.com/story/news/crime-and-courts/
    2016/06/15/iowa-still-near-top-locking-up-blacks-study-says/85936006 [https://perma.cc/
    9G2X-2XFV]. Iowa–Nebraska NAACP President Betty Andrews called the 2007 report “embarrassing.” Id. The Iowa Public Safety Advisory Board claimed in a report from 2013 that it would “be extremely difficult” to change the proportion of incarcerated African-Americans “absent some modifications” to the state’s sentencing guidelines. Id.

  32. [32]. Marc Mauer & Ryan S. King, Sentencing Project, Uneven Justice: State Rates of Incarceration by Race and Ethnicity 3 (2007), available at https://www.sentencing
    project.org/wp-content/uploads/2016/01/Uneven-Justice-State-Rates-of-Incarceration-by-Race-and-Ethnicity.pdf [https://perma.cc/2QFG-KWL8].

  33. [33]. Nellis, supra note 8, at 5. “The Sentencing Project is a national non-profit organization engaged in research and advocacy on criminal justice issues.” Id. at i.

  34. [34]. Erin Murphy, Racial Disparities Among Iowa Inmates Still Among Highest in Nation, Gazette (Sept. 4, 2016), https://www.thegazette.com/subject/news/public-safety/racial-disparities-among-iowa-inmates-still-among-highest-in-nation-20160904 [https://perma.cc/VH86-YHWQ].

  35. [35]. Fineran, supra note 14, at 35.

  36. [36]. Id. at 16, 35.

  37. [37]. Id. at 16–19. These categories are not mutually exclusive. Many violent crimes and drug crimes are class B felonies. See Iowa Code §§ 124.413, 902.12 (2019) (labeling the respective offenses as class B felonies and assigning a mandatory minimum sentence).

  38. [38]. Fineran, supra note 14, at 18.

  39. [39]. Iowa Dep’t of Corr., supra note 13, at 21.

  40. [40]. Fineran, supra note 14, at 28.

  41. [41]. Reid Wilson, Prisons in These 17 States Are Over Capacity, Wash. Post (Sept. 20, 2014), https://www.washingtonpost.com/blogs/govbeat/wp/2014/09/20/prisons-in-these-17-states-are-filled-over-capacity/?utm_term=.1ce208fea945 [https://perma.cc/FQG2-NQY9]. Iowa was among Nebraska, Ohio, Delaware, Colorado, and Hawaii in attempting to operate in excess of 110 percent of capacity. Id. The Illinois and North Dakota prison systems were most overburdened at the time, both working at or above “150 percent of capacity.” Id.

  42. [42]. Fineran, supra note 14, at 9.

  43. [43]. Act of Apr. 26, 1993, ch. 171, § 14, 1993 Iowa Acts 411.

  44. [44]. Id. at 403–04.

  45. [45]. Iowa Dep’t of Mgmt., Program and Budget: Fiscal Years 2018–2019, at 98–101 (2017), available at https://dom.iowa.gov/sites/default/files/documents/2017/01/bib_final
    _fy2018.2019.pdf [https://perma.cc/3RQ9-2CPM] (listing actual FY 2016 spending for each correctional facility, adjusted from estimates in earlier reports).

  46. [46]. Id. at 102.

  47. [47]. Iowa Dep’t of Corr., supra note 13, at 29.

  48. [48]. See Nellis, supra note 8, at 8 (noting a “black/white differential” of 11.1 in Iowa). The number of black people in Iowa’s prisons at the time of Nellis’s report was about 2,270. Id. at 16 (identifying Iowa’s black prison population as 25.8 percent of a total of 8,798 inmates). A reduction by the rate of 11.1 would mean a total of 205 black people in Iowa’s prisons, 2035 fewer than there are currently. At a rate of $95.85 per inmate per day, or $34,985.25 per year, the savings from 2035 fewer inmates would be $71,194,983.75 per year. See Iowa Dep’t of Corr., supra note 13, at 29 (reporting the daily cost of an inmate in an Iowa prison at $95.85, for a yearly cost of $34,985.25).

  49. [49]. See Iowa Dep’t of Mgmt., supra note 45, at 77–80, 82, 85, 90.

  50. [50]. See Van B. Shaw, Relationship Between Crime Rates and Certain Population Characteristics in Minnesota Counties, 40 J. Crim. L. & Criminology 43, 49 (1949). While this study applies specifically to Iowa’s neighbor to the north, the strength of its empirical conclusion suggests the relationship is effectively a generally applicable principle.

  51. [51]. Visualization of Year End Iowa Prison Population, Gov Data: St. Iowa, https://
    data.iowa.gov/d/hsqm-vzb9/visualization [https://perma.cc/NA49-BB26] (select the pie chart option; then, select “Jurisdiction” from the recommended columns sidebar).

  52. [52]. See generally U.S. Census Bureau, 2010 US Census Iowa Counties Population (2010), available at https://sos.iowa.gov/elections/pdf/2010census/counties.pdf [https://perma.cc/
    U4ZH-3NZ6] (listing the population of Polk County at 430,640 at the time of the 2010 census). Because Iowa has few sizeable metropolitan centers, the largest counties by raw population are necessarily those with the biggest cities.

  53. [53]. Id. The census figures for these counties are: Linn, 211,226; Scott, 165,224; Black Hawk, 131,090; Johnson, 130,882; Woodbury, 102,172; Dubuque, 93,653; and Pottawattamie, 93,158. Id.

  54. [54]. Visualization of Year End Iowa Prison Population, supra note 51.

  55. [55]. Id.

  56. [56]. U.S. Census Bureau, supra note 52.

  57. [57]. See The St. Data Ctr. of Iowa & The Iowa Commission on the Status of African-Americans, African-Americans in Iowa: 2019, at 2 (Feb. 2019), available at https://
    www.iowadatacenter.org/Publications/aaprofile2019.pdf [https://perma.cc/Y4GS-PT3J] [hereinafter The St. Data Ctr.].

  58. [58]. See Appendix E (illustrating that 395 of the 767 of the current inmates convicted by Black Hawk County are black).

  59. [59]. See Visualization of Year End Iowa Prison Population, supra note 51 (export data as spreadsheet; then, sort by jurisdiction by race) (showing 316 of Scott County’s 641 contributions to Iowa State prisons are black).

  60. [60]. See U.S. Census Bureau, supra note 52 (detailing the difference in population between Scott and Black Hawk counties).

  61. [61]. See Appendix E.

  62. [62]. See The St. Data Ctr., supra note 57, at 1–2 (listing Iowa’s total black population at 120,218 as of 2017 and Black Hawk’s black population at 12,438, which comes out to 10.35 percent).

  63. [63]. See Appendix E (listing the number of black “offenders” in Iowa prisons at 2116). 395 of the 767 (or 51 percent) of the current inmates convicted by Black Hawk County are black. Id. 395 of 2116 is just under 19 percent, roughly one-fifth.

  64. [64]. See Iowa Dep’t Human Rights, supra note 28, at 7.

  65. [65]. Id.

  66. [66]. See John D. Baskerville, Heading North: African-American Migration, Black Hawk County: Past and Present (Spring 2001), https://historyofblackhawkcounty.uni.edu/peopimmigrants/
    African-AmericanMig/HeadingNorth.htm [https://perma.cc/ZXH2-LEHH] (describing initial conflict between working-class white residents of the Waterloo and the migrating black families that arrived seeking employment).

  67. [67]. Id.

  68. [68]. Rick Halpern & Roger Horowitz, Meatpackers: An Oral History of Black Packinghouse Workers and Their Struggle for Racial and Economic Equality 119 (1999).

  69. [69]. Baskerville, supra note 66 (quoting Robert Neymeyer, May Harmony Prevail: The Early History of Black Waterloo, 61 The Palimpsest 80, 85 (1980)).

  70. [70]. Halpern & Horowitz, supra note 68, at 119–20.

  71. [71]. Id. at 119.

  72. [72]. Jordan Bray, The 10th Worst City for African-Americans in the U.S. Has a Story—This Is How the Dream Derailed, Medium (Oct. 26, 2015), https://medium.com/@dmegivern/the-10th-worst-city-for-african-americans-in-the-u-s-has-a-story-this-is-how-the-dream-derailed-9a1e12a8ad41 [https://perma.cc/W3LN-B8B6].

  73. [73]. See id. (describing how radical union organizers allied with black workers and began to join them in demanding civil rights).

  74. [74]. Id.

  75. [75]. Kathryn A. Schumaker, The Politics of Youth: Civil Rights Reform in the Waterloo Public Schools, 72 The Annals of Iowa 353, 353­–54 (2013).

  76. [76]. Bray, supra note 72.

  77. [77]. Schumaker, supra note 75, at 360.

  78. [78]. Bray, supra note 72.

  79. [79]. See generally Morton D. Winsberg, Flight from the Ghetto: The Migration of Middle Class and Highly Educated Blacks into White Urban Neighborhoods, 44 Am. J. Econ. & Soc. 411 (1985) (analyzing the “black flight” phenomenon beginning in the 1970s and continuing into the ‘80s).

  80. [80]. See QuickFacts: Waterloo City, Iowa, supra note 18.

  81. [81]. Id.

  82. [82]. Id. (estimating Waterloo’s black population to be about 16 percent).

  83. [83]. Uniform Crime Reporting 2016, supra note 19 (follow “Agency” hyperlink listed under “Table 2” heading to open spreadsheet).

  84. [84]. Id.

  85. [85]. Id.

  86. [86]. Aggravated Assault, FBI: UCR, https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/offenses-known-to-law-enforcement/aggravated-assault [https://perma.cc/3W9W-AXLJ] (“The FBI[] ... defines aggravated assault as an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury... . [T]his type of assault is usually accompanied by the use of a weapon or by other means likely to produce death or great bodily harm. Attempted aggravated assault that involves the display of—or threat to use—a gun, knife, or other weapon is included in this crime category because serious personal injury would likely result if the assault were completed. When aggravated assault and larceny-theft occur together, the offense falls under the category of robbery.”).

  87. [87]. Thorsten Sellin, The Basis of a Crime Index, 22 J. Am. Inst. Crim. L. & Criminology 335, 336–37 (1931) (footnote omitted).

  88. [88]. See generally Fineran, supra note 14 and accompanying text (condemning disproportionate incarceration in Iowa in the 1990s).

  89. [89]. Infra Section II.C.2.

  90. [90]. See Philadelphia DA Wants to Dismantle Mass Incarceration from the Inside Out, WBUR Boston (Apr. 18, 2018), http://www.wbur.org/hereandnow/2018/04/18/philadelphia-da-larry-krasner-incarceration [https://perma.cc/6RQW-U76D] (discussing new policy proposals in light of Larry Krasner’s upset election victory); see also Farah Stockman, In Ferguson, a New Prosecutor ‘Gives Us Hope’ 4 Years After Shooting, N.Y. Times (Aug. 8, 2018), https://www.ny
    times.com/2018/08/08/us/ferguson-prosecutor-wesley-bell.html [https://perma.cc/HG3H-T625] (pointing to potential for incoming prosecutor to address St. Louis “[C]ounty’s criminal justice system” as it “is still plagued by fundamental inequality”).

  91. [91]. Accord Amy Grossman Applegate, Prosecutorial Discretion and Discrimination in the Decision to Charge, 55 Temp. L. Q. 35, 35–38 (1982); Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275, 276–78 (2007); Race and the Prosecutor’s Charging Decision, supra note 21, at 1520–26; James Babikian, Note, Cleaving the Gordian Knot: Implicit Bias, Selective Prosecution, & Charging Guidelines, 42 Am. J. Crim. L. 139, 141–45 (2015).

  92. [92]. See, e.g., Jason Kreag, Prosecutorial Analytics, 94 Wash. U. L. Rev. 771, 815–16 (recommending analytics be applied to data on “charging and bargaining practices” due to their role as key decision points); Race and the Prosecutor’s Charging Decision, supra note 21, at 1524–26 (noting that a defendant’s race may have such influence on the charging decision that it would adversely affect any attempt to plead to a lesser charge); Babikian, supra note 91, at 168–69 (recommending guidelines for charging and pleading decisions to “provide ... greater judicial oversight”).

  93. [93]. Applegate, supra note 91, at 40.

  94. [94]. See Race and the Prosecutor’s Charging Decision, supra note 21, at 1530–31 (justifying the validity of statistical findings on race and prosecutorial discretion because they are “supported by the Baldus study, which ... [took] into account virtually every conceivable variable and ... still concluded that race played an independent role in the prosecutor’s decisionmaking”).

  95. [95]. See David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & Criminology 661, 731 (1983) (“[O]ur analyses suggest that Georgia’s death-sentencing system is tainted by the influence of arbitrary and capricious factors, notably the victim’s race and the place where the defendant is prosecuted.”).

  96. [96]. See Race and the Prosecutor’s Charging Decision, supra note 21, at 1524–27, 1529–32 (describing past statistical analysis on race in borderline charging decisions, then independently assessing the rigor of those findings).

  97. [97]. See Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795, 806–10 (2012) (applying implicit association testing results to scenarios a prosecutor would commonly face).

  98. [98]. See Justin D. Levinson & Robert J. Smith, Systemic Implicit Bias, 126 Yale L.J.F. 406,
    415–16 (2017) (assessing implicit associations tests in the broader context of the criminal justice system).

  99. [99]. Chris Chambers Goodman, Shadowing the Bar: Attorneys’ Own Implicit Bias, 28 Berkeley La Raza L.J. 18, 31 (2018).

  100. [100]. Id.

  101. [101]. See, e.g., The Conscious Prosecutor: Implicit Bias Toolkit for Prosecutors, A.B.A. (Mar. 4, 2017), https://www.americanbar.org/content/dam/aba/publications/criminaljustice/2017/Interactive_Implicit_Bias_Toolkit.pdf [https://perma.cc/J5UN-R4NF] (recapping prosecutor trainings on implicit bias from 2016 to 2017); Press Release, U.S. Dep’t of Justice, Dep’t of Justice Announces New Dep’t-Wide Implicit Bias Training for Personnel (June 27, 2016), available at https://www.justice.gov/opa/pr/department-justice-announces-new-department-wide-implicit-bias-training-personnel [https://perma.cc/P3B7-R549] (detailing an effort to train employees to recognize and correct for implicit bias); Lauren Keene, Yolo Prosecutors Receive Implicit Bias Training, Enterprise (Apr. 9, 2016, 5:20 PM), https://www.davisenterprise.com/local-news/yolo-prosecutors-receive-implicit-bias-training [https://perma.cc/A3VX-UF2F] (covering a California County District Attorney’s efforts to make its prosecutors aware of implicit bias).

  102. [102]. See Eric S. Fish, Against Adversary Prosecution, 103 Iowa L. Rev. 1419, 1420, 1420 n.4 (2018) (“The literature on American prosecutors suggests that this view is commonly held.”).

  103. [103]. Id. at 1428.

  104. [104]. Iowa County Att’ys Ass’n, Prosecutorial Standards: Responsibilities of County Att’ys and Assistant County Att’ys 1 (June 2010), available at http://iowa-icaa.com/
    ICAA%20Standards%202010.pdf [https://perma.cc/E96S-WRUL].

  105. [105]. Id.

  106. [106]. Id. at 2–3.

  107. [107]. See Fish, supra note 102, at 1426 (quoting the National District Attorney’s Association standard that “[t]he primary responsibility of a prosecutor is to seek justice” and the ABA Model Rules equating the prosecutorial role to that “of a minister of justice and not simply that of an advocate”).

  108. [108]. Iowa County Att’ys Ass’n, supra note 104, at 1; see also Fish, supra note 102, at 1428 (quoting the ABA’s characterization of the prosecutor as “a zealous advocate”).

  109. [109]. Fish, supra note 102, at 1428 (“One role—‘seeking justice’—requires attentiveness to systemic concerns, including the rights of defendants. It calls on prosecutors to step outside narrow partisanship and consider how a just system should operate. The other role
    —adversarialism—puts a premium on winning cases, thus requiring a certain lawyerly amorality.”).

  110. [110]. Iowa Cty. Att’ys Ass’n, supra note 104, at 1.

  111. [111]. Iowa Ct. R. of Prof’l Conduct 32:3.8 (2015), available at https://www.legis.
    iowa.gov/docs/ACO/CourtRulesChapter/08-30-2018.32.pdf [https://perma.cc/E79K-TBK2].

  112. [112]. Infra Part IV.

  113. [113]. See supra Section II.C.1.

  114. [114]. See Easy Access to Adult Criminal Data, Iowa Dep’t Hum. Rts.: Div. Crim. & Juv. Just. Plan., https://disposedcharges.iowa.gov [https://perma.cc/W6E6-3F9C] (“Disposed charges provide data for all charged offenses, including charges that resulted in a conviction, as well as charges that were ultimately dismissed, acquitted, not filed or reduced.”).

  115. [115]. Id. “Convictions provide data for all charges resulting in a conviction. Cases involving multiple charges may also involve multiple convictions, and each of those individual convictions will appear in this data.” Id.

  116. [116]. See supra note 95 and accompanying text.

  117. [117]. Easy Access to Adult Criminal Data, supra note 114. “The data in this report reflects information from the Judicial Branch’s Iowa Court Information System (ICIS). The data
    ... [reflects] the official records contained in ICIS at the time the information was extracted to the Iowa Justice Data Warehouse.” Disclaimer, Iowa Dep’t Hum. Rts.: Div. Crim. & Juv. Just. Plan., https://disposedcharges.iowa.gov/asp/disclaimer.asp [https://perma.cc/6VFX-LDJK]; see also Appendices A­–E. These appendices break down the combined numbers of dispositions and convictions during 2010–2017 for offense types, offense classes, and offenses with mandatory minimum sentences.

  118. [118]. See supra text accompanying note 53. These jurisdictions are the most rational choices for comparison on issues of crime and punishment because they tend to contain Iowa’s largest metropolitan areas. See supra text accompanying note 52.

  119. [119]. This analysis is confined to white and black defendants because they are the two racial groups most completely represented in the EZAACD system. Hispanic ethnicity is filtered out because EZAACD treats it as a distinct category other than race, thereby creating potential for overlapping data points (e.g., a white defendant who claims Hispanic ethnicity).

  120. [120]. See Appendix A (listing the following figures for convictions of black defendants: 3,059 for violent crimes; 4,112 for property crimes; 2,350 for drug crimes; 24,688 for public order crimes).

  121. [121]. See U.S. Census Bureau, supra note 52.

  122. [122]. See Appendix A (totaling overall convictions as 34,209 in Black Hawk and 62,929 in Polk; without public order crimes totals are 9,521 in Black Hawk and 15,447 in Polk).

  123. [123]. See Appendix A. Black Hawk County brought 4,692 of 9,722 charges for violent offenses, or 48.26 percent, against black defendants.

  124. [124]. See Appendix A. Black Hawk County convicted 3,059 black defendants out of a total of 6,191 for violent offenses, or 49.41 percent.

  125. [125]. See Appendix A.

  126. [126]. See Appendix A.

  127. [127]. See Appendix A. This assertion rounds down Dubuque’s overall conviction rate of
    50.06 percent.

  128. [128]. See U.S. Census Bureau, supra note 52.

  129. [129]. See Appendix A.

  130. [130]. See Appendix A.

  131. [131]. See Appendix A.

  132. [132]. See Appendix A.

  133. [133]. See Appendix A. For black and white defendants accused of property crimes, the former made up 43.04 percent of dispositions and 45.96 percent of convictions in Johnson County, and 37.83 percent of dispositions and 39.70 percent of convictions in Scott County.

  134. [134]. See Appendix A.

  135. [135]. See Appendix A.

  136. [136]. There were 77,787 convictions for property offenses in the time period at issue, compared with 46,879 for violent offenses and 52,243 for drug offenses. See Appendix A.

  137. [137]. The overall mean average conviction rate for property offenses, including Black Hawk County, was 62.60 percent. The mean average rate was 46.82 percent for violent offenses and 45.49 percent for drug offenses. See Appendix A.

  138. [138]. Public-order offenses include violations of weapons and driving statutes, as well as miscellaneous offenses like “flight/escape, parole or probation violations, prison contraband, habitual offender, obstruction of justice, rioting, libel, slander, treason, perjury, prostitution, pandering, bribery, and tax law violations.” See All Terms & Definitions, Bureau of Justice Statistics, https://www.bjs.gov/index.cfm?ty=tda [https://perma.cc/QQ7F-HYJP]. The EZAACD offense sub-types are consistent with this general definition. See Disposed Charges: Crime Type by Crime Sub Type, Easy Access to Adult Criminal Data, Criminal & Juvenile Justice Planning, https://disposedcharges.iowa.gov/asp/selection.asp [https://perma.cc/SR2H-R7AD] (last updated Oct. 3, 2019) (select “Crime type” as the Row Variable and “Crime sub type” as the Column Variable; then, check the box for “2017” under “Calendar Year”; then, check the box for “Public Order” under “Crime Type” and click “Show Table” near the top of the page).

  139. [139]. See Appendix A. Still, the proportion of charges and convictions in this area (28.26 percent and 26.22 percent, respectively) is nearly triple the overall proportion of African-American residents. See Appendix A.

  140. [140]. See Appendix A.

  141. [141]. See Appendix B (listing 3185 black defendants convicted in Black Hawk County out of a total of 11,809 across all counties).

  142. [142]. See Appendix B (showing 14,627 misdemeanor convictions in Black Hawk County out of an overall total of 81,656).

  143. [143]. See Appendix B.

  144. [144]. See U.S. Census Bureau, supra note 52.

  145. [145]. See Appendix B.

  146. [146]. See Appendix B.

  147. [147]. See Appendix B.

  148. [148]. See Appendix B.

  149. [149]. See Appendix B.

  150. [150]. There were so few class A felony convictions in Iowa’s largest counties from 2010 to 2017 that a meaningful statistical analysis is not possible. See Appendix B. Of a total of 93 convictions, Black Hawk County was responsible for only 10. See Appendix B.

  151. [151]. See Appendix B. Black Hawk County convicted 172 black defendants for class B offenses and 2341 for class D offenses. See Appendix B. Polk County, by comparison, convicted 162 and 2218 African-Americans in those respective categories. See Appendix B.

  152. [152]. See Appendix B.

  153. [153]. See Appendix B.

  154. [154]. See Appendix B.

  155. [155]. See Appendix B.

  156. [156]. See Appendix B.

  157. [157]. See Appendix B.

  158. [158]. See Appendix B.

  159. [159]. See Appendix B.

  160. [160]. See Appendix B. When Pottawattamie County’s outlying 49 percent figure is removed, the mean average of the other counties combined is 72 percent. See Appendix B.

  161. [161]. See Appendix B. Again, removing the low-end outlier in this category, which happens also to be 49 percent, the mean average of the other counties is 76 percent. See Appendix B.

  162. [162]. Class A felonies are the exception here. See supra text accompanying notes 150–52.

  163. [163]. See Appendix B (listing the total number of simple misdemeanor charges from 2010 to 2017 at 202,470, which accounts for nearly 44 percent of all 463,681 misdemeanor dispositions in the same time period).

  164. [164]. See Appendix B.

  165. [165]. Black Hawk County convicted on 73 percent of charges it brought for class C felonies, but only 66 percent of charges it brought for simple misdemeanors. See Appendix B. None of the seven other counties convicted any class of offense at a rate higher than they did for simple misdemeanors. See Appendix B.

  166. [166]. See Fineran, supra note 14, at 18 (“It should be noted that African-Americans are over represented in Iowa’s prison population, but particularly so for [mandatory minimum offenses].”); see also Iowa Dep’t Human Rights, supra note 28, at 7 (concluding that in making charging decisions “there are unexplained differences which are not associated with any known factor but race” and further noting “the unexplained difference is most strongly noticeable in one county, Black Hawk, which is the Iowa county with the highest concentration of African[-]
    American defendants”).

  167. [167]. Michael R. Mullins, Drake U. L. Sch., Iowa Criminal Statutes Summary Chart 273 (2017), available at https://www.iowacourts.gov/static/media/cms/Sentencing_Chart_2017
    _Final_424_8019F4D890936.pdf [https://perma.cc/Z9E5-CAFD].

  168. [168]. Id. at 274.

  169. [169]. See Alia Conley, Iowa Law Does Away with One-Size-Fits-All Penalties in Cases of Robbery, Omaha World-Herald (Aug. 15, 2016), https://www.omaha.com/news/crime/iowa-law-does-away-with-one-size-fits-all-penalties/article_c3ed0cd3-4891-5904-a9aa-60e0d62d69d2.html [https://perma.cc/4VZ3-B4J7] (“On July 1 the charge of robbery in the third degree, an aggravated misdemeanor, was added to the Iowa Code.”).

  170. [170]. Mullins, supra note 167, at 275.

  171. [171]. See Appendix C.

  172. [172]. See Appendix C.

  173. [173]. See Appendix C.

  174. [174]. See Appendix C (showing 65 charges and 45 convictions on Second-Degree Robbery for white defendants, but 66 charges and 52 convictions for black defendants on the same charge).

  175. [175]. See Appendix C.

  176. [176]. See Appendix C.

  177. [177]. See Appendix C.

  178. [178]. See Appendix C.

  179. [179]. Conley, supra note 169.

  180. [180]. See Appendix C.

  181. [181]. See Appendix C.

  182. [182]. See Appendix C.

  183. [183]. See Appendix C.

  184. [184]. See Appendix C.

  185. [185]. See Appendix C.

  186. [186]. See Appendix C.

  187. [187]. See Appendix C.

  188. [188]. See Mullins, supra note 167, at 19–43 (compiling the substantial number of permutations in sentences for possession of controlled substances).

  189. [189]. There are some exceptions to this statute, which generally pertain to marijuana offenses and juvenile defendants. See id. at 20, 22 (outlining those exceptions).

  190. [190]. See S.F. 445 § 10, 87th Gen. Assemb., Reg. Sess., at 4–5 (Iowa 2017) (to be codified at Iowa Code § 124.413(3) (2017)). This analysis will still include an examination of convictions on this offense because the one-third requirement was in effect for all but the final six months of the relevant time period.

  191. [191]. Mullins, supra note 167, at 26.

  192. [192]. See supra text accompanying note 190 (noting that class C drug trafficking had a mandatory minimum sentence prior to July 1, 2017).

  193. [193]. See Appendix D.

  194. [194]. See Appendix D.

  195. [195]. See Appendix D.

  196. [196]. See Appendix D.

  197. [197]. See Appendix D.

  198. [198]. See Appendix D.

  199. [199]. See Appendix D.

  200. [200]. See Appendix D.

  201. [201]. See Appendix D.

  202. [202]. See Appendix D.

  203. [203]. See Appendix D.

  204. [204]. Mullins, supra note 167, at 63–65.

  205. [205]. See supra Section III.C (noting the elimination of mandatory minimums for class C drug trafficking offenses and the creation of a misdemeanor robbery charge, as well as the reluctance of some counties to take advantage of those changes).

  206. [206]. See supra Section II.A.1 (pointing to substantial growth in the budget for Iowa’s Department of Corrections even after the adoption of fiscal impact statements).

  207. [207]. See supra Part III.

  208. [208]. Fish, supra note 102, at 1477.

  209. [209]. Id. at 1478.

  210. [210]. Id.

  211. [211]. See Philip A. Hart, A Politician’s Conscience, 13 Cath. Law. 348, 348–49 (1967) (describing a caricature of politicians as those who “scurr[y] through tunnels of intrigue, making decisions with an eye to the opinion polls and ever-mindful[] of the next election”).

  212. [212]. See generally Lara Bazelon, The Innocence Deniers, SLATE (Jan. 10, 2018), https://
    slate.com/news-and-politics/2018/01/innocence-deniers-prosecutors-who-have-refused-to-admit-wrongful-convictions.html [https://perma.cc/WB67-W72B] (reviewing cases in which prosecutors persistently oppose the exoneration of wrongfully-convicted defendants despite clear evidence of actual innocence).

  213. [213]. See Commonwealth v. Warren, 58 N.E.3d 333, 342 (Mass. 2016) (revising the Massachusetts doctrine on flight and reasonable suspicion in light of new study results that suggest “an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity”).

  214. [214]. See, e.g., Ron Allen & Brittany Noble Jones, Game Changer: Wesley Bell Ousts Bob McCulloch for Prosecutor in St. Louis County, NBC News (Aug. 10, 2018, 12:55 PM), https://www.nbc
    news.com/news/nbcblk/game-changer-wesley-bell-ousts-bob-mcculloch-prosecuting-attorney-stl-n899671 [https://perma.cc/8SZU-RPHD] (quoting St. Louis Post-Dispatch columnist Tony Messenger’s statement that Wesley Bell’s election is “meaningful because people now look at that office and say there might be change. Black people might not be arrested and put in jail on minor offenses as often as they are today”); Joel Currier & Robert Patrick, Bell Win Credited to Mix of Grassroots Work, Ferguson and McCulloch Missteps, St. Louis Post-Dispatch (Aug. 9, 2018), https://www.stltoday.com/news/ local/crime-and-courts/bell-win-credited-to-mix-of-grassroots-work-ferguson-and/article_b2e5670f-d89b-5ce5-923f-fb0a5c5acc49.html [https://perma.cc/
    LPB7-MVRF] (“Kim Gardner, who surprised many when she won a four-way primary in 2016, said ... Bell’s ‘message and the issues’ had driven voters to the polls. Gardner said criminal justice reform was ‘resonating with voters in the city and county.’”); Astead W. Herndon, Wesley Bell, Ferguson Councilman, Unseats St. Louis County Prosecutor, N.Y. Times (Aug. 8, 2018), https://
    www.nytimes.com/2018/08/08/us/politics/wesley-bell-st-louis-election-result.html [https://
    perma.cc/YX6C-UU5U] (“[Wesley Bell] promised to change the county’s cash bail system, and implement diversionary programs so that low-level, nonviolent offenders are not incarcerated. Mr. Bell said it would serve the double effect of helping crime rates while reducing prison population.”).

  215. [215]. See, e.g., Allen & Jones, supra note 214 (“Wesley Bell was not favored to win his race for the top prosecutor’s job in St. Louis County, Missouri.”); Currier & Patrick, supra note 214 (“Although political observers had doubted Bell’s chances of toppling the longtime incumbent, the race wasn’t close.”); Herndon, supra note 214 (quoting Color of Change PAC spokesman Rashad Robinson as stating “[w]hile Wesley Bell’s victory may come as a shock to many around the country, it’s no surprise ... to many in the black community”).

  216. [216]. See Fish, supra note 102, at 1478 (raising the possibility that these victories mean “the politics of prosecution may not be as one-dimensionally punitive as is often assumed”).

  217. [217]. Chris Palmer et al., Krasner Dismisses 31 from Philly DA’s Office in Dramatic First-Week Shakeup, Phila. Inquirer (Jan. 5, 2018), http://www2.philly.com/philly/news/crime/larry-krasner-philly-da-firing-prosecutors-20180105.html [https://perma.cc/X9LB-TGP9].

  218. [218]. Id.

  219. [219]. Id. (alteration in original).

  220. [220]. Id.

  221. [221]. See generally Internal Memorandum from Philadelphia District Attorney Larry Krasner on New Policies (Mar. 13, 2018), available at https://www.scribd.com/document/373860422/
    Finalized-Memo-Mar-13-2018 [https://perma.cc/2ERH-95S4] (outlining reform policies Krasner sought to implement at the outset of his term, including to “decline certain charges” such as “possession of marijuana ... regardless of weight” and “prostitution ... where a person who has been arrested has [fewer than three] prostitution convictions”).

  222. [222]. See Diane Mastrull & Tom Avril, Philly DA Larry Krasner Disinvited to Speak at Yale Law Conference After Mumia Abu-Jamal Appeal, Phila. Inquirer, https://www.inquirer.com/news/larry-krasner-yale-law-school-mumia-abu-jamal-philadelphia-district-attorney-20190202.html [https://
    perma.cc/X9LB-TGP9] (last updated Feb. 2, 2019).

  223. [223]. Id.

  224. [224]. Robert Moran, Judge Grants Mumia Abu-Jamal Partial Appeals Request, Phila. Inquirer, https://www.inquirer.com/news/mumia-abu-jamal-granted-partial-appeals-request-20181228.html [https://perma.cc/C2JF-5QJY] (last updated Dec. 27, 2018).

  225. [225]. Samantha Melamed, Philly Man Wins New Trial After DA Hands Over Evidence It Withheld for 15 Years, Phila. Inquirer, https://www.inquirer.com/news/innocent-larry-krasner-da-philly-wrongful-conviction-robert-outlaw-20190131.html [https://perma.cc/M55J-XCFV] (last updated Jan. 31, 2019). The exculpatory evidence indicated that Philadelphia police ignored other leads in the case and made at least one deal with a confidential informant to secure testimony against Outlaw. Id.

  226. [226]. Id.

  227. [227]. See Matt Ferner, Progressive District Attorney Falls Short in Primary in Nevada, Huffington Post (Aug. 7, 2018), https://www.huffingtonpost.com/entry/nevada-district-attorney-race_us_5b1efdece4b 09d7a3d75fadd [https://perma.cc/W4SP-C5RF].

  228. [228]. Abbie Vansickle & Maurice Chammah, California Voters Reject Prosecutor ‘Reformers, Marshall Project (June 6, 2018, 3:10 PM), https://www.themarshallproject.org/2018/06/
    06/california-voters-reject-prosecutor-reformers [https://perma.cc/XBY8-92DP].

  229. [229]. Iowa Dep’t Human Rights, supra note 28, at 10.

  230. [230]. See Levinson & Smith, supra note 98, at 807.

  231. [231]. Iowa Dep’t Human Rights, supra note 28, at 11.

  232. [232]. Id.

  233. [233]. See generally Iowa Dep’t Human Rights, supra note 28 (phrasing many suggestions in the form of “[i]t is recommended that the Supreme Court ...”).

  234. [234]. Tim Jamison, Black Hawk County’s Jail Is Filling Up as More Prisoners Wait Longer for a Day in Court, Bringing up an Interesting Idea, Courier (Nov. 3, 1997), https://wcfcourier.com/black-hawk-county-s-jail-is-filling-up-as-more/article_2f90f4c7-f0b5-567f-95cb-dfeca51c32b9.html [https://perma.cc/ME5W-6KU7].

  235. [235]. Id. (“The $14 million, 272-bed jail ... could hit its capacity... . ‘We have 200 and some people that haven’t even been to court,’ [Sheriff] Kubik added. ‘That’s ridiculous.’”).

  236. [236]. Jeff Reinitz, Crime Down in Black Hawk County, Jail Still Full, Courier (Jan. 14, 2016), https://wcfcourier.com/news/local/crime-and-courts/crime-down-in-black-hawk-county-jail-still-full/article_deabe7b2-9927-51dc-9109-94bbf1311556.html [https://perma.cc/SG7K-697W] (“‘We are holding more pretrial inmates facing felony and forcible felony charges than ever in the history of the Black Hawk County Jail, which causes their stay to be far lengthier than the misdemeanor offenders of yesteryear,’ [Sheriff] Thompson said.”).

  237. [237]. Id.

  238. [238]. Iowa Code Ann. § 356.49 (2013).

  239. [239]. See Terry L. Hudick, Iowa Dep’t of Human Rights, Selected Information About County Jails and Adult Detention Facilities in Iowa 2 (2003), available at http://publications.iowa.gov/1479/1/CountyJails.pdf [https://perma.cc/K2E8-V3EB]; see also Iowa Code Ann. § 356.36 (2013) (compelling state law enforcement agencies to “draw up minimum standards for the regulation of jails” for later adoption as official rules).

  240. [240]. See, e.g., Polk County Sheriff’s Office, Inmate Population as of Sunday, February 03, 2019, available at http://cms.polkcountyiowa.gov/generated-reports/InmatePopulation.pdf [https://perma.cc/FG3E-NM4M] (displaying the inmate population for February 3, 2019); Polk County Sheriff’s Office, Inmate Population as of Sunday, February 04, 2019, available at http://cms.polkcountyiowa.gov/generated-reports/InmatePopulation.pdf [https://perma.cc/


    FX86-4XVX] (displaying the inmate population for February 4, 2019); Polk County Sheriff’s Office, Inmate Population as of Sunday, February 5, 2019,
  241. [241]. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, The Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 150 (2010).

  242. [242]. State v. Plain, 898 N.W.2d 801, 840 (Iowa 2017).

  243. [243]. Id. at 836 (Appel, J., concurring).

  244. [244]. Id. at 841 (Waterman, J., concurring).

  245. [245]. Mike Maharrey, Tennessee Bills Would Require Courts to Fully Inform Juries, Tenth Amendment Center (Feb. 5, 2019), https://blog.tenthamendmentcenter.com/2019/02/
    tennessee-bills-would-require-courts-to-fully-inform-juries [https://perma.cc/JW9T-6LP8].

  246. [246]. Joe Bolkcom, Iowa Should Regulate Marijuana Like Beer, Wine and Liquor, Press-Citizen (Feb. 1, 2019, 2:48 PM), https://www.press-citizen.com/story/opinion/2019/02/01/iowa-senator-bolkcom-comes-out-support-legal-marijuana/2745756002 [https://perma.cc/Q7UF-YUB8].

  247. [247]. For source of data used to compile Appendices A–D, see Easy Access to Adult Criminal Data, supra note 114. For source of data used to compile Appendix E, see Iowa Prison Population, Gov Data: St. Iowa, https://data.iowa.gov/Public-Safety/Iowa-Prison-Population-Year-End/
    murf-9x69 (last updated Mar. 27, 2018).


     
     
     
     
     
     
*

J.D. Candidate, The University of Iowa College of Law, 2020; B.A., University of Illinois at Urbana-Champaign, 2014.