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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. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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