If you’re going to steal a loaf of bread, you might as well grab a couple of high-priced electronic devices and maybe some employees’ wallets on your way out of the store.
Indiana is the only state in the union that does not have a misdemeanor category for theft which means regardless of the monetary value of the items you appropriate – even if it is just a $2 loaf of bread – you will be charged with a felony.
That is just one proportionality problem that has appeared in the Indiana Criminal Code since it was last recodified in 1977. During the intervening 35 years, the code has been tinkered with and tweaked but now, many agree, the time has come for a sweeping rewrite.
To that end, the Indiana General Assembly’s Criminal Code Evaluation Commission, currently chaired by Rep. Ralph Foley, R-Martinsville, has started another round of hearings to collect data and recommendations for revising the state’s criminal statutes. A key element of this review will be an extensive study of significant sections of Title 35 by the CCEC Work Group.
A 365-page report contains the group’s overview of the current law, a list of the concerns and the recommendations for amendments, as well as the reasoning behind those suggestions.
“We appreciate the hard work they have done,” said David Powell, executive director of the Indiana Prosecuting Attorneys Council. “It’s certainly a good start.”
The CCEC was created in 2009, charged with the task of “evaluating the criminal laws of Indiana.” Its guiding principles included consistency, proportionality of penalties, elimination of duplication, and increased certainty regarding the length of the sentence to be served.
Based on proposals from the Justice Reinvestment Program, a project of the Council of State Governments Justice Center, to make specific changes to Indiana law, the commission adopted the recommendations in December 2010. However, the Legislature did not pass any bills regarding the changes because, in part, the CCEC had not completed a comprehensive review.
Consequently, the workgroup was formed with representatives from the Indiana Prosecuting Attorneys Council and the Indiana Public Defender Council as well as the Indiana Judicial Center and private practice. Deborah Daniels, partner at Krieg DeVault LLP and former U.S. attorney and U.S. assistant attorney general, was the chair.
The General Assembly could begin debating changes to the code once the commission finishes its review – possibly during the 2013 legislative session. What changes the revision will contain and whether or not a provision for misdemeanor theft will be included is anybody’s guess.
“Our role was limited to making the recommendations,” Daniels said. “The only thing I’m sure of, they won’t be adopted in total.”
Foley said the effort may not be perfect, but he believes the Legislature will be on the path to increasing public safety, reducing recidivism and better using taxpayers’ money.
“We’re making progress and I’m optimistic that it will continue to be a collaborative effort and we’ll be able to rewrite the criminal code,” he said.
In the course of its study, the workgroup reached the conclusion that the current four classes of felonies (Class A, Class B, Class C and Class D) should be expanded to six by dividing Class A and Class B each into two parts. Murder would remain in its own class.
Although the idea of increasing the levels of felonies is not new, Daniels said, the workgroup did not start its evaluation with expansion in mind. Instead, as the members examined the code from the standpoint of proportionality, they saw offenses were bunching at the top.
This led them to recommended Class A felonies be broken down into Level 1 and Level 2 while Class B felonies be separated into Level 3 and Level 4. Class C and Class D felonies were matched to Level 5 and Level 6, respectively.
Since the workgroup’s report was issued in July, the Indiana Prosecuting Attorneys Council has been vetting it among prosecutors. Their review is continuing but, Powell said, no one is throwing his or her arms up over the expansion of felony levels. They agree six classes are workable and will help with proportionality.
The workgroup was very specific in matching crimes to the new levels, assigning, for instance, disarming a law enforcement officer causing death as a Level 1 and disarming a law enforcement officer using a weapon as Level 2.
However, the group did not attach sentencing recommendations to the levels. Daniels said the members talked about ranges but then tabled the discussion and eventually came to the conclusion that by offering no advice on sentencing, the proportionality was “more pure.” The level indicates the severity of the crime so the greatest number of years would be attached to the higher ones.
Sentencing was not the workgroup’s role, Daniels said. It is more appropriate for the Legislature to consider what it thinks each crime is worth weighed against how much the state’s criminal system can sustain.
Asked whether members of the Legislature have the political will to revise code and possibly risk being described as soft on crime, Foley was emphatic.
“I find it hard to accept being realistic on crime is anything but being tough on crime,” he answered, adding that making the punishment fit the offense enhances public safety because it creates a sense of justice.
Nowhere may justice be more obtuse than in the area of drug crimes. Daniels noted the section of the code related to drug crimes is where proportionality comes to the fore.
For example, possession with intent to deliver 3 grams of cocaine is categorized as a Class A felony, carrying a sentence of 20 to 50 years. This is more severe than the penalty for rape, a Class B felony carrying six to 20 years.
Also, possession of cocaine jumps from a Class D felony to a Class A felony if the individual has 3 grams or more and is within 1,000 feet of a school or public park.
“As long as I’ve been involved in criminal justice policy, it has been startlingly clear Indiana’s drug and theft laws are grossly disproportionate to the crime,” said Andrew Cullen, legislative liaison for the Indiana Public Defenders Council and member of the workgroup.
In its recommendations, the workgroup exhaustively revamped drug felonies. Dealing between 10 and 28 grams of cocaine within 1,000 feet of a protected zone with a gun or prior conviction for dealing would be a Level 2 crime. But dealing with less than 3 grams of cocaine would be a Level 5 crime.
Daniels is scheduled to formally present the workgroup’s report to the commission on Sept. 20.
6-Level Felony Proportionality Proposal
Below are some examples of changes to certain offenses based on proposals made by the Criminal Code Evaluation Commission Work Group. The workgroup has issued a lengthy report reviewing Indiana’s Criminal Code. Goals of the group included creating consistency, proportionality of penalties, and like sentences for like crimes. The workgroup has suggested expanding Indiana’s four felony classes to six levels.
LEVEL 1: Conspiracy to commit murder causing death
LEVEL 2: Attempted murder or conspiracy to commit murder
LEVEL 1: Aggravated battery (death)
LEVEL 3: Aggravated battery
LEVEL 2: Criminal confinement (ransom, hijacking, demanding release of another, hostage)
LEVEL 4: Criminal confinement (deadly weapon, serious bodily injury (SBI), aircraft)
LEVEL 5: Criminal confinement (less than 14 years old, vehicle, injury)
LEVEL 6: Criminal confinement
LEVEL 1: Rape (deadly force, weapon, SBI, drug)
LEVEL 3: Rape
LEVEL 1: Disarming a law enforcement officer (death)
LEVEL 2: Disarming a law enforcement officer using a weapon (SBI)
LEVEL 3: Disarming of law enforcement officer (SBI)
LEVEL 5: Disarming of law enforcement officer
LEVEL 1: Manufacturing: Meth lab explosion causing serious bodily injury to someone other than the manufacturer or causing property damage greater than $10,000
LEVEL 2: Dealing: Greater than 28 grams OR dealing between 10 and 28 grams AND manufacturing, dealing to person less than 18 years of age, within 1,000 feet of protected zone, with a gun or prior conviction of dealing in any controlled substance (excluding marijuana)
LEVEL 3: Dealing: Between 10 and 28 grams OR dealing between 3 and 10 grams AND manufacturing, dealing to person less than 18 years of age, within 1,000 feet of protected zone, with a gun or prior conviction of dealing in any controlled substance (excluding marijuana)
LEVEL 4: Dealing: Between 3 and 10 grams OR less than 3 grams AND manufacturing, dealing to person less than 18 years of age, within 1,000 feet of protected zone, with a gun or prior conviction of dealing in any controlled substance (excluding marijuana)
LEVEL 5: Dealing: Less than 3 grams