ILNews

IBA: A Review of 2011 Criminal Law Legislation

Back to TopCommentsE-mailPrintBookmark and Share
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.•

ADVERTISEMENT

  • no subject
    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

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

ADVERTISEMENT