The balance struck between the opposing demands of the prosecutors and public defenders in the proposed criminal sentencing bill may be upended during the 2014 legislative session, which could force Indiana to squeeze hundreds of millions of dollars from the state budget to build a new prison.
During the 2013 session, the Indiana General Assembly passed a new criminal code that changed the felony levels and restored proportionality that had gotten misaligned after years of tinkering by the Legislature. It had gotten to the point where possessing three grams of cocaine carried a higher penalty than rape.
The Legislature then assigned the interim group, the Criminal Law and Sentencing Policy Study Committee, the task of developing sentencing guidelines for the various offenses along with examining the issue of recidivism among Indiana inmates.
At its final meeting Dec. 19, the committee approved a draft proposal of a sentencing bill by a 9 to 4 vote. Sen. Brent Steele, who chaired a subgroup charged with changing the penalty portion of the revamped code, described the sentencing policy as the key to making the entire criminal statute work.
The Bedford Republican said the workgroup took ideas from prosecutors and public defenders to craft a bill that would help the new criminal code achieve its goal of lowering the prison population in the Indiana Department of Correction and providing effective treatment alternatives for low-level offenders.
The other members of the subgroup were Republican Reps. Greg Steuerwald and Jud McMillin and Democratic Rep. Matt Pierce.
Steuerwald, R-Avon, said the four legislators approached their work from the same philosophical stance – offenders whom society is afraid of should be treated differently than lawbreakers whom society is mad at. Then they incorporated the best ideas into the bill.
“We weren’t trying to pick winners and losers, we were trying to pick the best policy,” he said.
Overcrowding versus public safety
Study committee members Larry Landis, executive director of the Indiana Public Defender Council, and Randy Koester, deputy commissioner of re-entry for the DOC, voted against the measure. They cited concerns that the sentencing structure would increase prison population and overload the state’s penal system.
At roughly 29,500 prisoners, the DOC is very close to capacity. Reaching and exceeding 30,000 is believed to be the tipping point where the state would have to build more housing units or a whole new penitentiary.
A study by Applied Research Services Inc. concluded that the new criminal code contained in HEA 1006 would actually explode the state’s prison population to 35,504 in 10 years.
This mirrored the DOC’s prediction that the reworked criminal code would increase the number of people behind bars. Koester maintained the sentencing proposal did not go far enough to reduce costs or lower the incarceration totals.
He said there are a couple of ways to change HEA 1006 but the focus should be on credit time, which is directly linked to the offender’s period of incarceration.
“Their length of stay is really what drives how many prison beds we need and how many prison facilities we need,” Koester said. “And those lengths of stays, if they get adjusted upward, eventually that creates a stacking effect and we need to create new capacity, new prisons.”
Yet, as the bill moves through the Legislature, leaving the credit-time provision as requiring felons to serve at least 75 percent of their sentences is critical to retaining the support of the Indiana Prosecuting Attorneys Council.
Committee member David Powell, executive director of the IPAC, said adjusting the credit time downward would be detrimental to the prosecutors’ main goal of public safety. Lowering penalties and releasing offenders from jail does not improve the safety of the public, he said.
Even so, Powell voted yes on the sentencing bill. He noted prosecutors got the three main things they wanted: increasing the ranges of the advisory sentences as well as upping the nonsuspendible sentences, and limiting the number of times an offender may apply for sentence modification.
IPAC plans to continue pushing the Legislature to raise the penalties for drug dealing up one level. This would still be lower than the current penalty, Powell said.
Prosecutors would likely find a receptive audience in the General Assembly. But this could lead to the sentencing bill’s proportionality being undone.
“No doubt, if you have a local prosecutor telling constituents and legislators something is making the public unsafe, that’s a problem,” Pierce said.
The subgroup has been working hard with prosecutors and listening to their concerns, Pierce said. But the county prosecutors are all independent operators who are not invested in any compromise bill and therefore could spook legislators with their concerns.
Surprised by cost
In addition to the sentencing revisions, the Legislature will also consider a request for funding for treatment programs. HEA 1006 calls for low-level offenders to be kept in their home communities and provided services for the addiction or mental health issues they have. Advocates contend this will reduce the state’s recidivism rate, lower the crime rate, save money and help offenders salvage their lives.
A review of Indiana’s new criminal code by the American Institutes for Research found local jurisdictions are apprehensive they will get stuck footing the bill for the treatment programs and additional staff. The study estimated potentially 15,000 more offenders would be kept in the local jails under HEA 1006. Many of these individuals would be at high risk for problems involving substance abuse, criminal attitudes, education, employment and finances.
Consequently, treatment is the linchpin to accomplishing the goals of the new criminal code, said AIR principle researcher G. Roger Jarjoura. Currently, low-level offenders have chances to reform instead of being sent immediately to the DOC. However, they are not doing well with these second chances because the programs and resources are not available to help them.
“We don’t want just treatment and no supervision and we don’t want just supervision and not treatment,” Jarjoura said of reforming the system. “We’ve got to have both. But treatment has to be there and that’s the gap in most places. They just don’t have the treatment there.”
Jarjoura set a conservative price tag for operating such programs across the state at $10.5 million annually. Although the cost could rise if the programs are successful and more offenders are funneled through them, the increase would be balanced by a decrease in costs at the state level that will enable funds to be shifted to the local communities rather than having to look for a new source of revenue.
The cost estimate surprised Pierce and Powell as being lower than they expected.
Pierce acknowledged the fiscal committees in the Legislature will have to be assured that the provisions in HEA 1006 to bolster local services have been well-researched and will focus on instituting evidence-based practices and accountability.
With a low cost of $10.5 million, Pierce thinks the fiscal groups will find a way to fund the programs.•