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Criminal code overhaul shifts focus to sentencing

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The exploding prison population was a key motivator for revising the state’s criminal code, but an independent research group has concluded the new statute will cause a quicker increase in the number of inmates.

Applied Research Services Inc. detailed its analysis of the new criminal code contained in HEA 1006 to the members of the Criminal Law and Sentencing Policy Committee Dec. 10. The Atlanta-based company projected that with judges continuing to hand down sentences similar in duration to the ones they hand down now, the prison population will balloon to 35,504 by 2024.

This prediction outpaces all others.

Current law is expected to increase the number of inmates at the Indiana Department of Correction from today’s 29,500 population to a little more than 31,000 by 2024. The DOC estimated that under the new criminal code, the population will

rise by 2,000 inmates between 2014 and 2024. The model by the Indiana Legislative Services Agency has the population decreasing between 1,200 and 1,600 inmates by 2025.

Although the belief is that the Department of Correction will reach capacity at 30,000 inmates, John Speir of ARS cautioned the committee from interpreting the number as a “construction issue.” The predicted population, he said, does not mean the DOC is facing a crucial mass.

The new criminal code is the first major overhaul of the state’s criminal statute since 1977. It changes felonies from the current four levels to six and revises the penalties to make the punishment proportional to the offense. It also calls for low-level offenders to be kept in the local communities for mental health and addiction treatment rather than being sent to the DOC.

Advocates for the new code say putting nonviolent defendants into programs within their own communities will reduce the number of repeat offenders.
 

steuerwald Steuerwald

“The goal is to deal with low-level nonviolent offenders in a different manner,” said Rep. Greg Steuerwald, R-Avon. “As a result of this goal, we believe the DOC population should go down.”

Passed during the 2013 legislative session, the criminal code revisions are not scheduled to take effect until July 1, 2014. The Indiana General Assembly purposefully built in the delay to give the interim study committee the opportunity to review the bill and suggest changes.

Sentencing

Now the committee is turning its focus to the new code’s sentencing grid. Four committee members – Reps. Steuerwald, Matt Pierce, D-Bloomington, and Jud McMillin, R-Brookville, along with Sen. Brent Steele, R-Bedford – will examine the bill’s penalty structure and recommend changes with an eye toward lowering the number incarcerated.

How much time an offender should receive is a point of contention among the different factions represented on the committee. In advocating for their respective proposals, each group defines their positions in broad terms like improving public safety and ensuring the legal system is fair and just.

The Indiana Prosecuting Attorneys Council is proposing the advisory sentences in the new code be raised and that more sentences become nonsuspendable.

Under current law, the minimum sentence is not suspendable for a defendant with a prior felony conviction. HEA 1006 wiped away that requirement and gave judges broader discretion in choosing which sentences to suspend.

The IPAC, said executive director David Powell, does not think repeat felons should get what he called a free pass.


willis-maryjan-bw-mug.jpg Willis

Pushing back against limiting judicial discretion is the Indiana Judges Association. During the Dec. 10 meeting, Henry Circuit Judge Mary Willis presented the committee with a resolution that opposes reducing or eliminating the discretion of judges to sentence criminals. This includes being able to suspend sentences when appropriate.

Requiring mandatory maximums and increasing the number of nonsuspendable sentences limits a judge’s flexibility to weigh the facts and fashion the best penalty, Willis said. Restricting what judges can do shifts the balance of power by making one person in the sentencing process both prosecutor and judge.

Larry Landis, executive director of the Indiana Public Defender Council, was glad the judges are taking a position. He has long pleaded with them to speak up or, he asserted, the freedom that the new criminal code gives them will be taken away, and they will be reduced to rubber stamping whatever sentence their prosecutors recommend.

To lower the population in the state’s penitentiaries, the Public Defender Council is advocating changing the good-time credit to allow inmates to more quickly reduce their time behind bars through good behavior. The organization also is recommending lowering the maximum penalties for lower-level offenders and that judges be given an incentive to impose the advisory sentence.

Assumptions

In his analysis of the new criminal code’s impact, Speir said Applied Research assumed that judges would be slow to change how they currently sentence offenders. He did not believe that judges would suspend more sentences even though HEA 1006 provides them greater ability to do so. Also, he expected that judges would not adopt the new advisory sentences quickly.


surbeck Surbeck

Addressing the committee, Allen Superior Judge John Surbeck dispelled the last assumption. He described sentencing as a process where the judge begins with the advisory sentence then adds and subtracts years by weighing the aggravating and mitigating factors.

Steuerwald said Surbeck’s testimony made an impression on the committee. The thought, previously, was that judges work toward a number. Surbeck clarified that the point of the process is not to get to a specific prison term but at a sentence that fits the crime.

Likewise, Willis countered the assumption that judges would be reluctant to suspend more sentences. She said she often suspends a portion of sentences in order to be able to monitor and help individuals as they transition back into the community from prison. Without keeping back part of a sentence, the court would have no oversight over returning inmates.

Steuerwald was supportive of allowing judges to suspend more sentences.

“They don’t have to suspend sentences, they just have added discretion,” he said. “It gives them the ability to make the sentence fit the facts of the crime.”

Committee member and Bartholomew Circuit Judge Stephen Heimann said he has concerns about the impact of the new criminal statute on plea agreements. He wondered with the lower advisory sentences if prosecutors will try to get a longer prison term by not allowing defendants to plead to a lesser crime.

This, Heimann said, could impact the sentence imposed more than the judge not following the new law.

Startling jump

Speir reviewed Indiana’s past incarceration rate and found, like many states, the growth of the prison population flattened during the latter part of the Great Recession. However, in 2013, new admissions to the DOC jumped 9 percent.

He considered that hike an anomaly and expected Indiana will return to an average annual increase of 1 to 2 percent. If the new admissions continue at 9 percent, he said, the growth would become unsustainable within three years.

The jump in new inmates will be a strong motivator for the Legislature as it considers making changes to the new code before it takes effect, Steuerwald said.

“We have a 9 percent increase under current law,” he said. “We either keep pouring money into the DOC or we make changes, as a lot of other states have done, and we reap the benefits.”•

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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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