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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. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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