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Lawmakers discuss sentencing

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At the Oct. 19 meeting of the Indiana Criminal Code Evaluation Commission, lawmakers heard proposals that aim to reduce the number of inmates housed in the Indiana Department of Correction. Presented for review were plans to assign more offenders to community rehabilitative programs and to restructure felony classes.

Deborah Daniels, a partner with Krieg DeVault, presented recommendations from the commission’s work group. She said that Indiana’s current system of classifying felonies as A, B, C or D class may lead to sentences that are inappropriately harsh for a given offense. As an example, she said that dealing in less than three grams of cocaine or a narcotic is currently a Class B felony, but that anything more than three grams – whether that’s four grams or 20 grams – automatically makes the crime a Class A felony.

Daniels said the working group proposes felonies to be assessed in levels, numbered one through six, with a Level 1 felony being assessed only for meth lab explosions causing serious bodily injury to someone other than the manufacturer or causing property damage in excess of $10,000. Under the working group’s Felony Proportionality Proposal, dealing less than three grams of cocaine would be a Level 5 felony; between three and 10 grams would be a Level 4 felony; between 10 and 28 grams would be a Level 3 felony; and an amount higher than 28 grams would merit a Level 2 felony.

The commission discussed sentence enhancements, with Sen. Lindel Hume, D-Princeton, interjecting.

“It concerns me that we have this 1,000 feet from a school enhancement,” he said. He said he knows of instances where police who have arrested someone on a drug offense have offered that offender a reduced sentence if he or she can stage another deal. And Hume said that police sometimes try to ensure that a staged drug deal is within 1,000 feet of a school, resulting in an enhanced sentence, which Hume said is bordering on entrapment.

“If it’s at midnight and you’re within 1,000 feet of a school, there are no children that will be present,” Hume said. Daniels said that a better approach may be to rewrite that enhancement to specify that a child would have to be within 1,000 feet of the drug deal for the enhancement to apply.
 

foley-ralph-mug.jpgFoley

Rep. Ralph Foley, R-Martinsville, said, “Through the years, I’ve become less enamored with geography as a criminal element, unless it puts other people or children at risk.”

Daniels also offered revisions to marijuana charges, which would reclassify as misdemeanors several offenses that are currently felonies. Driver’s license suspension would no longer accompany marijuana charges, as she said the working group felt that added punishment “did more harm than good.”

Daniels said the working group would try to have sentencing terms drafted before the committee’s next meeting on Nov. 2.

Reducing recidivism

Foley discussed a potential addition to Indiana Criminal Code Section 11-13 that would create a Probation Improvement Fund at the county level to be administered by the DOC. Using appropriations from the General Assembly, along with donations, gifts and money transferred from other funds or accounts, Foley said the fund would enable county probation departments to develop and use progressive sanctions for dealing with probation violations. It would also be designed to help departments address the needs of offenders with substance abuse and mental health problems.

“There are D felons that need to go to prison, and we should make that determination on the local level,” Foley said. “If the D felon should not go to prison for a commitment of at least one year, then that needs to be handled in the community.”


head-randy-mug.jpg Head

Sen. Randy Head, R-Logansport, said that based on his past experience as deputy prosecutor he saw the merit in Foley’s proposal.

“You’re absolutely right that sometimes D felons need to go to the department of correction,” he said. “The beauty of this is it gives each county the flexibility it needs to deal with different situations.”

Head said that when an offender is picked up for a probation violation, by the time he’s “processed” he gets credit for time served and ends up feeling like he’s gotten away with the undesirable behavior. Immediate sanctions – like a few days in a jail for a drug offender who tests positive for a controlled substance – would be much more effective in deterring repeat offenses, Head said.

At its Oct. 4 meeting, Randy Koester, deputy commissioner of the DOC, explained that the DOC reduced parole and probation revocations for technical violations, increased the number of counties with community corrections programs and requested prosecuting attorneys and criminal court judges in each county to consider other sanctions besides prison for persons sentenced for nonviolent crimes.

Foley said an important step in preventing recidivism is recognizing that offenders who remain in their communities may be able to benefit from supports and services in a more immediate fashion. While the DOC has several rehabilitative programs for offenders, the time it takes for inmates to be processed, sent to DOC facilities and participate in the programs may be longer than the inmate’s incarceration, which in turn leads to people being unable to complete the program.

Tim Brown, director of legislative services for the DOC, said that the DOC’s outpatient substance abuse treatment is completed in three phases and that offenders must be able to complete Phase 1 (two to four weeks), Phase 2 (an average of three months) and part of Phase 3. Literacy programs take an average of six months to complete, and GED diploma programs take about six to nine months to complete.

“We need at the very minimum eight to nine months to effectively get an offender into any type of programming at the DOC,” Brown said.

Foley’s proposal also called for a Substance Abuse Treatment Fund and a County Offender Fund which would be used at the local level to defray the costs of housing an inmate, to support community corrections programs and to support problem-solving courts and work release programs.

“I have become convinced that we can do a better job of probation. Swift and certain sanctions are meaningful,” Foley said. He explained that the proposed changes are based on what has worked in other parts of the country.

Foley said it’s important to keep in mind that many of the people who are being picked up on probation violations are men with low-level drug offenses who have child support obligations and families that need their help. Keeping them connected to the community rather than in the DOC is better for society in general, he added.•
 

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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