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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. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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