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CCEC Work Group proposes sweeping revision to the Indiana Criminal Code

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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.

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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.

Section 35-42-1-1

LEVEL 1: Conspiracy to commit murder causing death

LEVEL 2: Attempted murder or conspiracy to commit murder

Section 35-42-3-2

LEVEL 1: Aggravated battery (death)

LEVEL 3: Aggravated battery

Section 35-42-3-2

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

Section 35-42-4-1

LEVEL 1: Rape (deadly force, weapon, SBI, drug)

LEVEL 3: Rape

Section 35-44-3-3.5

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

Section 35-48-4-1.1

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

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  • retroactive
    I would also like to know if someone sentenced to 30 years for felony A possession and dealing cocaine/ non violent can it be retroactively changed!
  • "Getting Realistic on Clime"
    Curtis Cobbs has spent over 17 1/2 yrs in an facility, he is an non-violent offender that had received 50yrs out of spite since he refused the prior plea bargin. Is it possible for him to retroactive him a modification for the time that he has already spent?

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    1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

    2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

    3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

    4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

    5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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