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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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