A landmark event happened quietly July 1 when Indiana began implementing its new criminal code, the first major overhaul of the massive statute in more than 35 years.
For Darrin Dolehanty, being a part of that history meant spending evenings, weekends and breaks between court hearings hunched over the computer. The Wayne Superior judge typed sections of the code into individual sheets, listing the new classifications and penalties for the felonies and misdemeanors he would most likely see in his court.
Now, when a case arrives with the defendant being charged under the new criminal code, one of Dolehanty’s cheat sheets is placed in the case file as a visual reminder for him to slow down and pay close attention.
“Because it’s such a big change, everybody is really paying extra attention,” Dolehanty said. “My concern is once the new code becomes a part of the landscape, (the careful attention) is going to stop.”
Prosecutors, public defenders and judges around the state have been attending special seminars, updating computer programs and reading through the new criminal code in preparation for the switch. Many say they will need about six months before they feel comfortable with the new code, and they expect they will be juggling cases charged under the old code for at least another 12 to 18 months.
While most agree an overhaul was needed, they are certain the changes will spark legal disagreements that state appellate courts will have to settle.
“It doesn’t matter if you say the sky is blue, it’s always open to interpretation,” Hendricks County Prosecutor Patricia Baldwin said when asked if the language in the new code was clear. “I think there will be a lot of appeals coming because of its new wording.”
Indiana’s new criminal code is the result of several years of work in the Legislature. The intent is to put proportionality back into the statutes by making sure the penalties are appropriate for the crimes as well as to ease overcrowding in the state prisons by incarcerating only violent offenders while providing alternative sentences to the nonviolent defendants.
The General Assembly passed the overhaul during the 2013 session but delayed the effective date until July 1, 2014. Work continued on House Enrolled Act 1006 and, in the 2014 session, lawmakers revamped the sentencing structure to try to give judges more discretion and to ensure the Indiana Department of Correction would not run out of space.
Implementing the code
For the state to achieve its goals, the criminal section of the bench and bar have the heavy, sometimes tedious, task of putting the new criminal code into practice.
The Indiana Judicial Center, the Indiana Prosecuting Attorneys Council and the Indiana Public Defender Council have all conducted workshops to educate their members about the changes. Daylong seminars, online videos and printed materials are part of the effort to help attorneys and judges navigate the learning curve.
Clark Superior Judge Vicki Carmichael volunteered to help with the training sessions offered by the Judicial Center. Her team had to go back several times and revise their presentations as the Legislature kept tinkering with the code. The night before the first seminar, she recalled they were all nervous, realizing they were responsible for teaching the code to their colleagues.
“My comfort level is better than some of my colleagues,” Carmichael said. “I learned it because I had to. I read it and presented it, but it’s still different.”
In Vigo County, Prosecutor Terry Modesitt and his staff keep a printed copy of the new code in the office and regularly refer to a chart displaying the offenses, new classifications and new sentences.
One of the deputy prosecutors in Baldwin’s office volunteered to go through the new code and input all the new information for every single felony into the office’s computer system. Likewise, the office of Washington County Prosecutor Dustin Houchin keeps both a printed copy and an electronic copy of the code along with redrafts of the charging forms.
Judges, prosecutors and defense attorneys are going to need to keep a copy of the new code handy, Houchin, who is also chairman of the IPAC board, said. With hundreds of pages to commit to memory, at least initially, everyone will be consulting their copies.
Currently, much of the implementation rests with the prosecutors who must make sure the charges are correct and that defendants offered a plea are aware of the changes concerning good-time credit.
By September or October, Dolehanty expects defendants convicted of felonies to start appearing in his courtroom to be sentenced under the new guidelines. He is most concerned about sentencing and calculating good-time credit.
Generally, the new criminal code divides offenses so individuals convicted of drug and nonviolent crimes will get one day credit for every day served while persons guilty of violent crimes will get one day credit for every three days served. Consequently, defendants convicted of serious offenses, like murder and rape, will have to serve at least 75 percent of their sentences.
In general, penalties for drug offenses were reduced with placement made in a community-based treatment program rather than incarceration in the Department of Correction.
Larry Landis, executive director of the Indiana Public Defender Council, sees the move to help addicts as an attempt to break what he called the state’s own addiction to incarceration. The war on drugs and the war on crime has increased costs but not reduced recidivism, he said. Society must look for better ways to provide for the public’s safety as well as help people with drug problems.
Both Baldwin and Modesitt raised concerns about the new drug sentencing provisions. Only a small percentage of offenders who enter treatment are rehabilitated because success depends on a number of factors like personal commitment and family support, which are beyond the control of the courts and the DOC.
In addition, Baldwin called the drug penalties “shortsighted” because the Legislature did not see the bigger picture that many other crimes are driven by drugs.
Houchin anticipates the sentencing guidelines for drug offenses will generate substantial litigation because those changes are the most extensive. However, in general, he expects more time in the courtroom will be spent arguing over the code’s language. Many times, the Indiana Supreme Court will have to determine the Legislature’s intent.
Carmichael agreed the state appellate courts will be called upon frequently to interpret the new code – in particular the sentencing scheme. Yet, she said, “I think judges, generally, are pleased with the legislation because it gives us more discretion than we had under the old code to fashion a sentence appropriate for the defendant.”
In local courtrooms, Landis and Modesitt believe more trials are likely. Defendants charged with serious crimes will be more inclined to go to trial rather than accept a plea agreement because they will not want to serve 75 percent of their sentence. Those facing lesser offenses will be tempted to try for a not guilty verdict since even if they lose at trial, they will not have to spend much time in jail.
Despite the questions sure to arise, Houchin is confident the code will be implemented without greatly disrupting the work of the courts.
“It’s still practicing criminal law,” he said, “so at the end of the day, we’re actually doing things very similar to what we have done before.”•