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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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