Post Conviction Remedies - August 10, 2026
Criminal Conviction 1984
In 1978 I was stopped by a deputy sheriff while driving through Muscatine County with over 100 pounds of marijuana in the trunk of a vehicle. At trial, I said the marijuana belonged to a Rastafarian church. I raised a First Amendment defense, but I did not prepared for it. I did not prepare, because I thought the First Amendment defense was simple: no injury, no crime. That simple, First Amendment, claim, based on the lack of injury, was rejected by the U.S. Supreme Court in Employment Division v. Smith, 484 U.S. 872 (1990). The court said the First Amendment does not protect religious use from a state criminal prohibition that is generally applicable.
The decision in Employment Division v. Smith shows respect for state sovereignty and the concept of federalism. Congress tried to reverse Employment Division v. Smith by enacting the Religious Freedom Restoration Act of 1993 (RFRA).[1] But the U.S. Supreme Court reversed the enforcement of the RFRA against the states in City of Boerne v. Archbishop Flores, 521 U.S. 507 (1997). States then began enacting their own versions of the RFRA to provide the simple claim rejected in Employment Division v. Smith. Iowa enacted a Religious Freedom Restoration Act in 2024.[2]
That simple, First Amendment, claim rejected under Employment Division v. Smith is now a valid statutory claim under the RFRA.
See Olsen v. State, Iowa District Court for Polk County, No. CVCV068508, Ruling on Motion to Dismiss, May 22, 2025:
Although it is markedly similar to the federal RFRA and the Petitioner has made similar unsuccessful claims in the past, this court cannot conclude to a certainty that there is no possibility of success under the newly-passed Iowa RFRA.
See Olsen v. State, Iowa District Court for Polk County, No. CVCV068508, Ruling on Motions for Summary Judgment, Decemeber 12, 2025:
The Court DENIES the State’s motion for summary judgment in part on the issues of standing, issue preclusion regarding arguments on the Iowa Religious Freedom Restoration Act, and on the substantive issues.
I made two arguments to the Iowa Supreme Court in State v. Olsen (1984): (1) the marijuana laws are invalid because marijuana is harmless; and (2) my church should have an exemption like the one for the religious use of peyote by the Native American Church in Iowa Code § 124.204(8).[3] Both of those arguments were too difficult. Instead of those two arguments, I should have said: (1) the exception for peyote lacks general applicablity; and (2) nobody was injured. The simple argument nobody was injured is not a valid First Amendment claim under Employment Division v. Smith, but adding lack of general applicability to it makes it a valid First Amendment claim.
The reason lack of general applicability makes a First Amendment claim valid is because lack of general applicability is a Fourteenth Amendment claim. According to Employment Division v. Smith a First Amendment claim must have an additional Fourteenth Amendment claim to be valid. And that is because the Fourteenth Amendment is what makes the First Amendment applicable to the states.
My first argument was too broad. I was on trial, not the marijuana laws. I should have said nobody was injured. But even the lack of an injury is not enough. Employment Division v. Smith requires an additional claim that the statute lacks general applicability.
My second argument was based on lack of general applicability, but comparing my church to the Native American Church was a fool’s errand. The two churches are nothing alike and I put myself into the position of defending my church instead of defending myself.
Also, my two arguments were inconsistent with each other. If the statute is invalid, then there is no reason to make an exception. An exception implies the statute is valid.
Hindsight is perfect sight. I accept responsiblity for failure to connect the dots, although there is no way of knowing if it would have made any difference.
Post Conviction Remedies
There a couple of post conviction remedies that could be used, but I am not sure I can use them. I should not have made either of the arguments I made. The argument I should have made was that the marijuana laws did not apply to me because I did nothing wrong. Trying to argue for everyone, or for every member of a church, was not my responsiblity. I was on trial, not the marijuana laws. I was on trial, not my church. The trial court did not make that error, I made it.
Iowa Code § 822.2(1)(d) says, “The conviction or sentence was in violation of the Constitution of the United States or the Constitution or laws of this state.” The Iowa Religious Freedom Restoration Act (IRFRA), Iowa Code Chapter 675, eliminates the requirement to show lack of general applicability. The argument I did nothing wrong is not valid under Employment Division v. Smith, but that argument is valid under the IRFRA.
Iowa Code § 822.2(1)(a) says, “There exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice.” I did not say lack of injury was a relevant factor at my trial, and that is not a sufficient argument under Employment Division v. Smith, but that argument is valid under the IRFRA.