From May 11 to May 13, the Des Moines Register editorial board interviewed the three Democratic candidates to become Polk County attorney in 2023. The winner of a June 7 primary will face Republican Allan Richards, who is unopposed in his party's primary, in the general election. Democrats have won all contests for partisan countywide offices in this century.
The office has been held by Democrat John Sarcone for nearly 32 years. He announced last year that he will retire when his current eighth term expires.
In Iowa, county attorneys exercise broad discretion about when and how to prosecute people accused of crimes. The editorial board asked the candidates about what principles they would bring to those decisions and what alternatives to prosecution they support.
The editorial board's endorsement in that race will be published this weekend.
May 11: Laura Roan
May 12: Kimberly Graham
May 13: Kevin McCarthy
Laura Roan: 'Certainly pretextual stops should be banned'
Question: If someone who has been the subject of an arrest complains, while charges are filed, that they were racially profiled in a stop, in a police stop, would you let that prosecution proceed? Or would you look into that and make sure that that wasn't the case before proceeding with the prosecution?
Roan: So the interesting thing there is, legally, it would not come into play as far as the proof of the elements of the offense, or potentially probable cause, right? So it depends on whether it was a pretextual stop that lacked reasonable cause for this stop.
So we're let's say, we're talking … about a Terry stop, a traffic stop. So we're looking at the standard being reasonable suspicion that criminal activity is afoot under Terry v. Ohio, so we're making the stop. And then it becomes very apparent that it was a pretext and lacked reasonable suspicion, which is a lower threshold than probable cause.
So certainly, if it lacks reasonable suspicion, it lacks probable cause as a basis, then certainly that's going to come out, come into play immediately. So it impacts the admissibility of the evidence at trial. It's litigated pretrial via suppression hearing. (That could) also involve a referral to the city attorney's office for a potential violation of a city ordinance, their anti-racial-profiling filing ordinance, as you all know, the (Des Moines) City Council passed unanimously in 2020.
So we would, if for some reason we thought that the defense attorney somehow was not aware or the client didn't already have civil counsel in the wings, or, you know, that that's certainly something we wouldn't seek to conceal or otherwise thwart any sort of communication. But that would be under the jurisdiction of the city attorney's office as a violation of that ordinance.
But the intersection is, if it was pretextual, to the extent that it doesn't even rise to the threshold of a reasonable cause, reasonable basis or legal basis for the stop, of course, it duly and immediately impacts the prosecution. Our law doesn't see the remedy for a pretextual stop as dismissal of the charges, if there's independent basis, and ultimately proof beyond a reasonable doubt for the criminal conduct. But it does intersect at that phase, and often.
Question: How do you feel about banning pretextual stops?
Roan: I'd like to see all of the municipalities do it. I don't know what the status is, of the other cities in (Polk County), but certainly pretextual stops should be banned.
Kimberly Graham: 'We also do a lot of harm … by unnecessarily detaining people'
Question: Does that sort of prospect concern you that you would face flak for anytime anyone who encountered your office and didn’t end up in prison reoffended?
Graham: Well, I mean, the short answer is, nobody wants somebody to reoffend or to go out and commit some violent crime that we didn't, you know, we weren't able to keep that from happening. I mean, we want to keep that from happening as much as we possibly can.
But again, we can only use the best practices, we can only use data and evidence. There's, for example, there are screening tools that can be used for folks in regards to cash bail, to hopefully be able to screen out those that are a violence risk to our community. And we just have to do the best we can.
I mean, I would, I would say that and hope that most community members understand that we also do a lot of harm to the community by unnecessarily detaining people, you know, who aren't a flight risk, who aren't a violence risk. That has a huge cost to our community.
If somebody sitting in the Polk County Jail for, like, driving while suspended, they didn't show up to work the next day. Those folks, frankly, tend to work the kinds of jobs where if you don't show up the next day, you're just gone, you've lost your job. And if they're in there long enough, now they're probably getting behind on their money, they need to pay their rent for that month. And maybe they're going to lose their housing. Maybe they have kids that they need to take care of, or get to school. And now they weren't there to show up for their kids. Where are their kids? What's happening with them? What trauma are their kids undergoing, because we've stuck their dad or their mom in the Polk County Jail for a low-level nonviolent offense?
So, you know, it's, it's, there's no, it's not easy. But to your point, we're going to try to do what's right and not what's easy, and there's no perfect, there's never going to be a perfect solution there. I wish, I will just desperately wish, and I'm sure if I'm elected, I will wish every day that I had a crystal ball. But we just are never going to have that. So we just have to make the smartest decisions we can.
Kevin McCarthy: 'Make sure that the office does fair plea bargain offers'
Question: In the context of incarceration rates, you just described how you've worked on shaping the law, and at the corrections end, and this is kind of in between those two things, this job. What's the single most important policy change at the attorney's office that would help keep people out of jail and prison who don't belong there?
McCarthy: Well, there are several, and some would require legislative changes. I — this is very controversial among prosecutors — I believe there's too much power that exists right now in the drug and gang unit of the county attorney's office. Some of that's going to require a change in the law. The Supreme Court has said that the defendant, and this is related but separate, that the defendant doesn't have a right to a plea offer. I believe you should have a right to a plea offer.
I believe that the defense attorney, and I've been the defense attorney, has the right to zealously advocate for the client and ask them questions. And what the county attorney's office does, is they give you a plea offer. And in some cases, it is substantial. I had a client once facing 40 years in prison who really didn't do anything. And you either accept your plea offer within a few days, or the plea offer’s off the table.
You almost have to commit ineffective assistance of counsel as a defense attorney in order to represent your client. Because what, you could be Perry Mason himself, right? And pick the defense attorney. … But you could get six or seven of the counts dismissed if you do a great job at trial and your client’s still going to prison.
So you almost have to go in and say, ‘All right, what's your deal? All right, well, your client’s faced with eight felony charges, five years apiece, we'll dismiss all seven, if you plead to the one.' You just kind of got to do it. Because otherwise you're putting your client at risk. So one of the changes I would make is to make sure that the office does fair plea bargain offers and that you bargain in good faith. The other thing I would do is advocate for changes at the court level to say that the defendant does have a right to a plea offer, which is not the current state of affairs. And I think that that weights the system too much in the prosecutor’s hand. That does not mean I'm anti-prosecutor. But I think that's one of the main changes that needs to be established.
This article originally appeared on Des Moines Register: Polk County attorney candidates meet with Register