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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.”


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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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