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IBA: A Review of 2011 Criminal Law Legislation

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Joel Schumm mug Schumm

By Joel Schumm, Professor of Law, Indiana University School of Law - Indianapolis

What looked early in 2011 like a blockbuster year for sentencing reform fizzled into a legislative session with mostly tinkering in the criminal law realm. This article summarizes some of the bills that took effect July 1 and concludes with a summary of failed sentencing reform.

Texting. Few doubt that texting while driving is a bad idea, but the ban enacted in HEA 1129 may create more problems than it solves. Only those who type, transmit, or read a text or email message while operating a motor vehicle commit a Class C infraction. Drivers remain free to dial their phone, read the New York Times app, Google any term they’d like, or play Angry Birds. Police may not confiscate the “telecommunications device,” but could presumably ask consent to see it, which savvy drivers will refuse. If an officer tickets a person for the infraction, proof may be difficult at trial without the phone unless the driver makes an admission. Moreover, many defendants will be charged with criminal offenses when an officer sees contraband in their vehicle. If courts find the officer lacked “an objectively reasonable reason,” the evidence will be suppressed. See State v. Massey, 887 N.E.2d 151, 158 (Ind. Ct. App. 2008).

Sexting. HEA 1083 creates a new defense to the crimes of child exploitation and obscene performance before minor for the consensual exchange of sexual pictures if the defendant is 21 or younger, using a wireless device or social networking site, and engaged in an “ongoing personal relationship” (but not a family member) with the other person who is within four years of the defendant’s age. The defense does not apply if the message is sent to others.

Restricted Records. Although Indiana’s expungement statute continues to allow a very narrow group of individuals a complete obliteration of records, HEA 1211 provides more limited relief for a broader class of arrest and conviction records.

Arrest. Under Indiana Code section 35-38-5-5.5, an individual arrested but not prosecuted, acquitted of all charges, or vindicated on appeal may petition to restrict access of the arrest record. If successful, the court shall order the state police not to disclose or permit disclosure of the arrest record to noncriminal justice organizations.

Conviction. Those convicted or adjudicated delinquent of a misdemeanor or D felony that did not result in injury may petition to restrict their conviction record. The defendant must wait eight years, have satisfied all obligations of the sentence, and cannot have been convicted of any felonies in the interim. The new bill expressly states “the person may legally state on an application for employment or any other document that the person has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records.” Some of this information, though, may already be available to companies that do background checks or be accessible through court records or elsewhere. The legislation may need to be revisited to meet its well-intentioned goal of giving people a second chance.

Drugs. Senate Bill 57 broadened all existing prohibitions on marijuana possession and dealing to include synthetic cannabinoid and salvia.

Voyeurism. In response to a highly publicized Marion County case of a man who put a camera on his shoe to look up dresses at a mall, the voyeurism statute was broadened to create the offense of public voyeurism for the non-consensual “peep[ing] at the private area of an individual.” Previously, voyeurism required peeping in areas where people were reasonably expected to disrobe, which did not include mall hallways.

Failed Sentencing Reform. After months of study, the 15-0 support of the Criminal Code Evaluation Commission, and Governor Daniels’ endorsement, Senate Bill 561 proposed a shift from Indiana’s “’one size fits all’ sentencing policy for a theft and drug offenses to a more graduated approach.” Sen. Richard Bray et al., Time to Revisit Our Criminal Code, Res Gestae, Jan./Feb. 2011, at 14-15. Among other things, the bill would have reduced many felony drug offense by one class felony if less than ten grams were involved and restricted enhancements for proximity to parks, schools, family housing complexes, and youth centers to 200 (instead of 1000) feet. It would also have reduced theft from a felony to a misdemeanor unless the property taken was valued at $750 or more or the defendant had a prior theft conviction. It wasn’t long before “prosecutors assailed [the bill] as soft on crime, senators gutted the bill and even lengthened sentences for some offenders.” Heather Gillers, Daniels: I’ll Veto Amended Prison Bill, Indianapolis Star, Mar. 23, 2011, at A1. The Governor threatened a veto of the new bill that no longer achieved the goal of graduated penalties and “smarter incarceration,” and the bill died. Id. Hopefully many of these sensible proposals will be revived next year.•

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    Voyeurism. In response to a highly publicized Marion County case of a man who put a camera on his shoe to look up dresses at a mall, the voyeurism statute was broadened to create the offense of public voyeurism for the non-consensual “peep[ing] at the private area of an individual.” Previously, voyeurism required peeping in areas where people were reasonably expected to disrobe, which did not include mall hallways. Ramji & Associates Houston Personal Injury Attorney

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. 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?

  3. 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?

  4. 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.

  5. 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?

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