No, really, this is the last thing…

Governor Chet Culver yesterday commuted the sentences of two people before his term as governor ended when Terry Branstad took the oath of office.  Culver’s staff sent out a news release about the commutations — at 11:52 a.m. today — AFTER Branstad had given his inaugural address.

Governor Culver Commutes Sentences of Two Iowa Inmates

Both cases focus on mandatory sentences that are viewed as harsh, unfair

DES MOINES – Governor Chet Culver today commuted the sentences of Iowa inmates Sheila Mae Schertz and John H. Lowery. The commutations will make them eligible for parole.

In Schertz’s case, Culver’s decision was based in part on disparities in her sentencing, as well as her deteriorating health. In the other case, Culver felt that the mandatory sentence handed down to Lowery was overly harsh.

“I am passionate about ensuring that people who break the laws serve their time and that the public safety is protected,” Culver said. “But there also is a time for fairness,  and common sense about the use of taxpayer dollars on our corrections system. In these two cases, there is no question in my mind that they both deserve to have their sentences commuted. It’s my belief these actions meet all of these interests.”

Schertz was serving a life sentence for first-degree kidnapping without an opportunity for parole, and Lowery was serving a 25-year term for first-degree robbery which included a mandatory minimum sentence.

Both cases go back to the parole board for consideration.

Read Culver’s letters to the parole board below.

January 13, 2011
Ms. Elizabeth Robinson, Chairperson
Iowa Board of Parole
420 Keo Way
Des Moines, Iowa  50309

 Re: John H. Lowery #1119812
Dear Chairperson Robinson:
 Inmate John H. Lowery has filed an application for the commutation of his sentence for First Degree Armed Robbery, a Class B Felony, which carries a 25 year sentence and which, under Iowa Code section 902.12, is subject to a mandatory 85% requirement.
 The facts giving rise to this conviction, as set forth in the commutation application file, are not disputed.  On July 6, 1997, when Mr. Lowery was 18 years old, in Polk County, Iowa, he joined with a companion, Mr. Andre Bonner, who was armed with a revolver, to enter a motel.  In the lobby, Mr. Bonner brandished his weapon, grabbed the clerk by her right arm, and forced her into the office area.  He then pushed her against the safe and jumped the counter.  Both Mr. Bonner and Mr. Lowery exited the premises.    The clerk testified that Mr. Lowery never spoke, never pointed any weapon at her, and did not touch her; she has not registered as a victim in this matter.
 Prior to his arrest and incarceration, Mr. Lowery suffered from alcohol and drug addiction and abuse, for which he received formal treatment on several occasions.  He has had no reports of drug usage while incarcerated.  Indeed, while imprisoned, Mr. Lowery has participated in rehabilitative programs available to him.  He has worked in a variety of prison jobs.  He has made payments towards restitution owed as a result of attorney fees charged in the course of his defense in the underlying criminal proceedings.  He has completed classes with respect to anger management and the impact of crimes on victims.  He takes advantage of educational opportunities afforded to prisoners and has achieved academic success.  He appears before high school students and talks to them about making good decisions—and, thereby, avoiding incarceration and imprisonment. He trains seeing-eye dogs for the blind.
 Iowa law makes it impossible for an inmate to obtain parole status during the mandatory portion of the inmate’s sentence.  Legislators in many states in recent years—but, not yet, in Iowa—have been re-evaluating the judicial wisdom and cost-effectiveness of imposing mandatory sentences on a wide range of crimes that, within recent decades, were the focus of new, mandatory sentences.  The effect of mandatory sentences is that both our courts, initially, and our corrections system, thereafter, can be prevented from giving individualized attention to inmates and to allow those who have served prison time but who do not impose an undue risk to society to be moved forward to less restrictive, more productive venues.
 While I cannot determine from the status of this commutation file whether or not Mr. Lowery, if his case were to be reviewed by the Board of Parole, would receive a unanimous recommendation for the commutation of his sentence, I have seen enough of the file to be convinced that his application should be carefully considered.  And, that cannot happen during such time that he remains subject to the mandatory provisions of his sentencing order.
 Under the Iowa constitution, Article IV, section 16, and pursuant to Iowa Code section 914.1, the Governor of Iowa has been granted by its citizens a general clemency power that includes the power to grant a commutation of sentence.  
Pursuant to that power, I commute Mr. Lowery’s sentence, to the extent that its mandatory provisions shall now be removed, and I direct the Board of Parole to schedule him for a parole review, without delay.
Dated this ___ day of January, 2011.

____________________________
Chester J Culver
Governor of Iowa

January 13, 2011

Ms. Elizabeth Robinson, Chairperson
Iowa Board of Parole
420 Keo Way
Des Moines, IA  50309

Re: Sheila Mae Schertz #0301072
Dear Chairperson Robinson:
Inmate Sheila Mae Schertz, now aged 58, has filed an application for a commutation, pursuant to Iowa Code section 914.2 (2009).  Convicted in 1981 by the Iowa District Court in and for Scott County for events that occurred in Scott and Linn Counties on February 8, 1981, Ms. Schertz was sentenced concurrently for the crimes of Kidnapping in the First Degree, Murder in the Second Degree and Theft in the Second Degree, in violation of Iowa Code sections 710.2, 707.3 and 714.2 (1981).
Incarcerated for nearly thirty years, Ms. Schertz has fully served and discharged the sentences imposed under the Murder in the Second Degree and Theft in the Second Degree convictions.  She remains imprisoned for, and seeks a commutation of, the sentence imposed upon her under the Kidnapping in the First Degree conviction: life in prison, without any opportunity for parole. 
Ms. Schertz is now resident at the Iowa Correctional Institution for Women at Mitchellville.  Although her early behavior in prison was not flawless, Ms. Schertz’s conduct, for more than a decade, has been appropriate.  She expresses deep remorse for her acts and omissions on February 8, 1981, that have resulted in her confinement in our penal institutions..
Parole Board Recommendation and Concurrence:  In November 2008, after a public hearing was convened, and after all of the evidence was considered by its members, the Board of Parole unanimously (5-0) recommended that the Governor commute Ms. Schertz’s life sentence and reduce it to a term of years, thereby providing her with the opportunity for parole.  On this day, that recommendation has been forwarded to my office for review, pursuant to Iowa Code section 914.4 (2009).
I agree with the Board of Parole’s unanimous recommendation and I now commute Ms. Schertz’s sentence of life, without any possibility of parole, to a term of 100 years.  By doing so, it is my intent that a release date should be promptly established and that the Board of Parole should immediately convene and order such terms and conditions for Ms. Schertz’s parole that will both protect the public’s safety and assure her access to appropriate housing and needed medical care and treatment.
 Three central issues inform my decision that a commutation of Ms. Schertz’s sentence from life without any opportunity for parole to a term of 100 years would serve the interests of justice.  First, there is a disturbing disparity in the sentence meted out to Ms. Schertz when compared to those of others who were involved in the same crime more than thirty years ago; if she had been sentenced comparably to others she would have been eligible for parole before now.  Second, there is compelling evidence that Ms. Schertz’s status as a life-long victim of severe physical abuse—including that inflicted upon her by her then-husband, Mr. Terry Schertz–played some role in her complicity with the horrendous events of February 8, 1981, and may well have impaired her ability to defend herself at trial.  Third, Ms. Schertz has been diagnosed with a serious medical condition whose appropriate treatment can be secured in a more humane environment if she is released from prison and placed on parole.
The Facts.  The facts surrounding Ms. Schertz’s criminal convictions are disturbing.  On February 8, 1981, she joined a group of four men —Mr. Terry Schertz, her husband, and three of his friends, Mr. Michael Gavin, Mr. Daryl Tomp and Mr. David Street.  The five of them entered the apartment of Mr. Mark Webb in Davenport, Iowa, who was hosting a visitor, Mr. Russell Greer.   According to testimonial records in the commutation file, Mr. Gavin, Mr. Tomp and Mr. Street had previously spent time in prison with Mr. Webb and, apparently, felt they had scores to settle with him.  Unaware of that history at that time, Ms. Schertz witnessed what appeared to her to have been a completely unprovoked attack by Mr. Gavin upon Mr. Webb when, suddenly, and then followed by others in the group, they began stabbing and beating Mr. Webb to death.   In the course of the fray, Mr. Schertz commanded his wife to hit the victim with a candlestick, and she did.  Mr. Greer, the guest, after having observed the murder of his host, was then taken hostage by the group of five and transported by automobile to Palisades State Park, near Cedar Rapids, where he was tied to a tree, severely beaten and left for dead.   Mr. Greer survived the attack upon him and later served as the state’s principal witness at the trials of the five co-defendants, which were conducted concurrently—with Ms. Schertz seated next to, indeed, apparently shackled to, her abusive co-defendant husband, Mr. Schertz.
All five of the defendants were found guilty and sentenced to prison. Importantly, unlike the other four defendants who were found guilty of Murder in the First Degree, Ms. Schertz was found less culpable by the jury, whose members rendered her guilty of Murder in the Second Degree.  The convictions for Kidnapping in the First Degree, rendered against all of the co-defendants resulted in, initially, life sentences, without any opportunities of parole, for each of them, respectively.
 Disparity in Sentencing. A comparison of the sentences meted out to the apparent ringleader of these crimes, Mr. Gavin, to those sentences that were imposed upon Ms. Schertz, reinforces the conclusion that Ms. Schertz’s last remaining sentence—life imprisonment without any opportunity of parole, for the crime of Kidnapping in the First Degree—should now be commuted.  At the conclusion of the initial combined trial — a proceeding that, under today’s rules of criminal procedure, would quite possibly not be conducted in the same joint manner if the trial concerning the same crimes involving the same defendants were now to be held — each of the co-defendants was found guilty of Murder in the First Degree except Ms. Schertz, who was found guilty of Murder in the Second Degree.  After the trial, each of the Defendants filed separate appeals.  Mr. Gavin, but not Ms. Schertz, was granted a re-trial; he successfully argued that an evidentiary error at trial rendered unlawful convictions against him.  On the re-trial of Mr. Gavin, alone, the presiding judge used different jury instructions concerning the kidnapping charge than had been used by the judge in the initial trial involving all five co-defendants.  Under these new instructions, Mr. Gavin was again found guilty, but, this time, of Kidnapping in the Second Degree, which does not carry with it the penalty of a life in prison without the possibility of parole. See State v Gavin, 328 N.W.2d 501 (1983); State v Gavin, 360 N.W.2d 817 (1985). Thus, for the crime of kidnapping Mr. Greer, for which Ms. Schertz was more of an observer rather than an active participant, Ms. Schertz is serving a more severe penalty than is Mr. Gavin, whom many viewed as the crime’s chief instigator. Further, had Ms. Schertz been convicted only of Kidnapping in the Second Degree, along with her convictions for Murder in the Second Degree and Theft in the Second Degree, she very likely would have been eligible for release years ago, without need for any commutation whatsoever.
Domestic Abuse.  The commutation file presents compelling evidence that Ms. Schertz was a childhood and adult victim of severe physical and emotional abuse, including that which was inflicted upon her by her husband, Mr. Schertz, before and during the crime and up to and including the trial proceedings.   Prior to 1981, too few organized domestic violence programs existed in Iowa; our state’s laws, in too many instances, served to protect our children and domestic partners from the hurts inflicted by family members.   Fewer safe harbors existed thirty years ago than now exist to provide victims safe harbors from abuse.  The commutation file vividly describes multiple instances during which Mr. Schertz intimidated and threatened to harm Ms. Schertz throughout their marriage, during the course of the crimes against Mr. Greer and Mr. Webb, and even in the course of their combined trials.  During her imprisonment, Ms. Schertz has accepted the responsibility for, and deeply regrets, her capitulation to the threats made by her husband and her failure to try to stop the criminal acts of February 8, 1981. 
Too many Iowans are the victims of intimate partner violence every year. And, a disproportionately high percentage of female prisoners who are serving time in Iowa’s penal institutions have been the targets of domestic abuse. That one has been, or is, a victim of domestic abuse does not, in itself, provide a legal or moral excuse for killing, or participating in the killing, of another human being.  Yet, the suffering of extreme domestic abuse at the hands of a co-defendant who initiated the underlying criminal act may, in certain cases, provide mitigating factors to consider in the commutation process, along with other circumstances, such as in Ms. Schertz’s instance, when nearly thirty years’ imprisonment has been served.   Ms. Schertz has repeatedly expressed remorse for her participation in the events of February 8, 1981, and regrets that she had not summoned the strength to stand up to her husband and his companions when they committed their criminal acts.
 Ms. Schertz’s Health.  The commutation file and records from the Department of Corrections indicate that Ms. Schertz has been diagnosed with a serious medical condition involving cysts on her lungs; she has just begun a chemotherapy regime conducted by specialists at the University of Iowa Hospitals and Clinics.  While it is not clear, at this moment, whether her condition will improve or worsen under treatment, it is obvious that she will need access to appropriate, specialized medical attention for the foreseeable future; commuting her sentence will help to assure that such treatment is administered in the most humane environment.
 Conclusion and Order:  Based on the unanimous recommendation by the Board of Parole, upon my review of the facts set forth in the commutation file, I hereby commute the sentence imposed upon of Sheila Mae Schertz for the crime of Kidnapping in the First Degree to a term of 100 years.  I direct the Board of Parole immediately to review this matter to determine her eligibility for parole and, upon its finding that parole should now be granted, issue a parole order and agreement that both protects the public and assures Ms. Schertz’s safety and her appropriate housing and reasonable access to needed medical care.  I further direct that registered victims, if any, be given notice of this decision.
    
Dated this 13th day of January, 2011.

______________________________
Chester J Culver, Governor Iowa