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Concerns exist over proposed sentencing bill

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The balance struck between the opposing demands of the prosecutors and public defenders in the proposed criminal sentencing bill may be upended during the 2014 legislative session, which could force Indiana to squeeze hundreds of millions of dollars from the state budget to build a new prison.

During the 2013 session, the Indiana General Assembly passed a new criminal code that changed the felony levels and restored proportionality that had gotten misaligned after years of tinkering by the Legislature. It had gotten to the point where possessing three grams of cocaine carried a higher penalty than rape.

The Legislature then assigned the interim group, the Criminal Law and Sentencing Policy Study Committee, the task of developing sentencing guidelines for the various offenses along with examining the issue of recidivism among Indiana inmates.

At its final meeting Dec. 19, the committee approved a draft proposal of a sentencing bill by a 9 to 4 vote. Sen. Brent Steele, who chaired a subgroup charged with changing the penalty portion of the revamped code, described the sentencing policy as the key to making the entire criminal statute work.

The Bedford Republican said the workgroup took ideas from prosecutors and public defenders to craft a bill that would help the new criminal code achieve its goal of lowering the prison population in the Indiana Department of Correction and providing effective treatment alternatives for low-level offenders.

The other members of the subgroup were Republican Reps. Greg Steuerwald and Jud McMillin and Democratic Rep. Matt Pierce.

Steuerwald, R-Avon, said the four legislators approached their work from the same philosophical stance – offenders whom society is afraid of should be treated differently than lawbreakers whom society is mad at. Then they incorporated the best ideas into the bill.

“We weren’t trying to pick winners and losers, we were trying to pick the best policy,” he said.

Overcrowding versus public safety

Study committee members Larry Landis, executive director of the Indiana Public Defender Council, and Randy Koester, deputy commissioner of re-entry for the DOC, voted against the measure. They cited concerns that the sentencing structure would increase prison population and overload the state’s penal system.

At roughly 29,500 prisoners, the DOC is very close to capacity. Reaching and exceeding 30,000 is believed to be the tipping point where the state would have to build more housing units or a whole new penitentiary.

A study by Applied Research Services Inc. concluded that the new criminal code contained in HEA 1006 would actually explode the state’s prison population to 35,504 in 10 years.

This mirrored the DOC’s prediction that the reworked criminal code would increase the number of people behind bars. Koester maintained the sentencing proposal did not go far enough to reduce costs or lower the incarceration totals.

He said there are a couple of ways to change HEA 1006 but the focus should be on credit time, which is directly linked to the offender’s period of incarceration.

“Their length of stay is really what drives how many prison beds we need and how many prison facilities we need,” Koester said. “And those lengths of stays, if they get adjusted upward, eventually that creates a stacking effect and we need to create new capacity, new prisons.”

Yet, as the bill moves through the Legislature, leaving the credit-time provision as requiring felons to serve at least 75 percent of their sentences is critical to retaining the support of the Indiana Prosecuting Attorneys Council.

Committee member David Powell, executive director of the IPAC, said adjusting the credit time downward would be detrimental to the prosecutors’ main goal of public safety. Lowering penalties and releasing offenders from jail does not improve the safety of the public, he said.

Even so, Powell voted yes on the sentencing bill. He noted prosecutors got the three main things they wanted: increasing the ranges of the advisory sentences as well as upping the nonsuspendible sentences, and limiting the number of times an offender may apply for sentence modification.

IPAC plans to continue pushing the Legislature to raise the penalties for drug dealing up one level. This would still be lower than the current penalty, Powell said.

Prosecutors would likely find a receptive audience in the General Assembly. But this could lead to the sentencing bill’s proportionality being undone.

“No doubt, if you have a local prosecutor telling constituents and legislators something is making the public unsafe, that’s a problem,” Pierce said.

The subgroup has been working hard with prosecutors and listening to their concerns, Pierce said. But the county prosecutors are all independent operators who are not invested in any compromise bill and therefore could spook legislators with their concerns.

Surprised by cost

In addition to the sentencing revisions, the Legislature will also consider a request for funding for treatment programs. HEA 1006 calls for low-level offenders to be kept in their home communities and provided services for the addiction or mental health issues they have. Advocates contend this will reduce the state’s recidivism rate, lower the crime rate, save money and help offenders salvage their lives.

A review of Indiana’s new criminal code by the American Institutes for Research found local jurisdictions are apprehensive they will get stuck footing the bill for the treatment programs and additional staff. The study estimated potentially 15,000 more offenders would be kept in the local jails under HEA 1006. Many of these individuals would be at high risk for problems involving substance abuse, criminal attitudes, education, employment and finances.

Consequently, treatment is the linchpin to accomplishing the goals of the new criminal code, said AIR principle researcher G. Roger Jarjoura. Currently, low-level offenders have chances to reform instead of being sent immediately to the DOC. However, they are not doing well with these second chances because the programs and resources are not available to help them.

“We don’t want just treatment and no supervision and we don’t want just supervision and not treatment,” Jarjoura said of reforming the system. “We’ve got to have both. But treatment has to be there and that’s the gap in most places. They just don’t have the treatment there.”

Jarjoura set a conservative price tag for operating such programs across the state at $10.5 million annually. Although the cost could rise if the programs are successful and more offenders are funneled through them, the increase would be balanced by a decrease in costs at the state level that will enable funds to be shifted to the local communities rather than having to look for a new source of revenue.

The cost estimate surprised Pierce and Powell as being lower than they expected.

Pierce acknowledged the fiscal committees in the Legislature will have to be assured that the provisions in HEA 1006 to bolster local services have been well-researched and will focus on instituting evidence-based practices and accountability.

With a low cost of $10.5 million, Pierce thinks the fiscal groups will find a way to fund the programs.•
 

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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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