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Mandatory minimums for drug dealing splits Statehouse

February 24, 2016

During a recent Senate committee hearing as a legislator presented his bill to increase penalties for drug dealing, Sen. Tim Lanane crystallized the struggle for his fellow lawmakers. The Anderson Democrat pointed out his district is battling meth and heroin and then questioned how the bill addresses those problems.

Roughly 18 months after Indiana’s reformed criminal code took effect, emphasizing treatment over incarceration for drug offenses, the General Assembly is considering proposals that would boost certain crimes to a higher level felony, stiffen punishments for possession of controlled substances and make some cold medicine more difficult to purchase.

The Senate Corrections & Criminal Law Committee hearing Feb. 16 showed some legislators are thinking carefully about jumping on the “tough-on-crime” bandwagon. Ironically, it was the bill authored by Rep. Greg Steuerwald, the architect of the state’s new criminal code, that spotlighted the division among lawmakers.

His measure, House Bill 1235, would impose a mandatory minimum sentence of 10 years for anyone charged with Level 2 felony dealing in illegal drugs. Opponents maintained that treating addicts would lower the use of drugs and, in turn, shrink the market for the dealers. Supporters contended the state cannot ignore the individuals who are making and selling the harmful substances.

steuerwald Steuerwald

When he testified about his bill, Steuerwald, R-Avon, admitted authoring HB 1235 was difficult for him. However, he told the committee he has always been concerned about how to treat the worst of the worst and this bill is part of the “never ending quest to treat bad guys differently than the people who need our help.”

HB 1235 ended up being tabled. Committee chairman Sen. R. Michael Young, R-Indianapolis, asked Steuerwald to confer with other legislators and possibly amend the bill.

As Lanane pointed out, drugs are overrunning many communities. Indiana Sheriffs’ Association Executive Director Stephen Luce said county law enforcement is battling methamphetamines and prescription pain killers right now, but the biggest outcry among sheriffs is caused by the growing popularity of heroin.

The state’s heroin problem is ensnaring younger people and leading to overdose deaths as well as a rise in hepatitis C and HIV epidemics. Already four counties – Scott, Fayette, Monroe and Madison – have implemented needle exchanges.

Still, Luce said he was a “little surprised” the Legislature is looking to up the penalties for drugs so soon after the criminal code reform was implemented. Nevertheless, the opponents and supporters of HB 1235 are both right, he continued. Combating drugs requires a balance of law enforcement, education and treatment.

‘Stupidest last resort’

While heroin use is growing, meth remains a popular drug. In 2015, law enforcement seized 1,530 meth labs in Indiana. Delaware County was the leader with 234 clandestine labs busted.

Prosecutor Jeffrey Arnold partly attributed the increase in labs in Delaware County to local officials being more proactive. When he was elected in 2010, he huddled with mayors and law enforcement to outline his zero-tolerance policy toward meth labs. Yet Arnold acknowledged a stiff policy does not reduce the meth problem because communities cannot arrest their way out of this issue.

A zero-tolerance policy “is what you put in place when you don’t know what else to do because, to me, it’s the dumbest and stupidest last resort,” Arnold said.

One measure that both prosecutors and public defenders agree would help decrease meth labs in the state is making the key ingredient found in many over-the-counter cold medicines – pseudoephedrine – a prescription-only drug.

Rep. Ben Smaltz, R-Auburn, introduced a bill at the beginning of the session that would have classified products containing ephedrine and pseudoephedrine as schedule III controlled substances and available only by prescription. When House Bill 1390 reached the House floor, the prescription language was removed and a provision to allow pharmacists to refuse to sell the medications to individuals was inserted.

It passed the House 92-7.

Supply and demand

Smaltz’s bill will help but it will not reduce the supply of the drug, Arnold said.

The void created when the one-pot labs are shut down will be filled by crystal meth from Mexico, he explained. But choking the manufacturing will reduce the collateral damage caused by these laboratories. Communities will not have to plow resources into decontaminating homes.

Terre Haute criminal defense attorney Laura Paul noted meth is not the only drug rolling across Indiana’s borders.

“(Drugs are) coming from all over the place,” she said. “But it’s not going to come here if there’s no demand for it. That’s why we have to treat addiction.”

Paul testified in opposition to HB 1235 during the Senate committee hearing on behalf of the Indiana State Bar Association Criminal Justice Section. She advocated for treatment and after the meeting said the drug problem is solved “defendant by defendant by defendant.”

“It’s hard work,” Paul continued. “It’s easier to say these people over here are dealers and ship them off to prison but they’re always going to come back. Most of them are users and that’s why they’re dealers to begin with.”

Young was skeptical. He supported cracking down on dealers and often challenged those who spoke against the bill. At one point, he equated dealers to murderers, saying the people who are selling drugs are killing our children and family members.

powell Powell

David Powell, executive director of the Indiana Prosecuting Attorneys Council, also advocated for the passage of HB 1235, arguing the measure would provide a needed tool to hammer the supply of drugs by imposing stiff punishment on dealers. Currently, he said, judges can suspend all of a sentence for dealing. He pointed to Marion County as having many Level 2 felony offenders receiving suspended sentences.

However, Sen. Brent Steele was not convinced. He challenged Powell, asking him why the prosecutor had no data to support his statements. Without data, the Bedford Republican was hesitant to approve mandatory minimums and instead advocated for criminal code reform to be allowed to “run around the track” for a while to see how it affects sentencing and incarceration rates.

Henry Circuit Judge Mary Willis did present data supportingthe public defenders’ contention that any suspended sentence is coming as part of an agreement worked out with the prosecutor. Willis pointed to statistics from the state that showed 473 Level 2 felony cases were disposed of in 2015 but only 27 were resolved by the bench. The rest were either dismissed, deferred, pleaded out or handled another way.

A member of the Indiana Judicial Conference board of directors, Willis said Henry County courts had handled 14 Level 2 felony cases with an average sentence of 19 years executed and no Level 2 felony drug offenses were suspended.

landis-larry-mug Landis

Larry Landis, executive director of the Indiana Public Defender Council, described HB 1235 as “misleading,” asserting its only purpose is to show Hoosiers that the state is doing something about drugs. It will not address the problem, he said.

Yet despite the pushback in the committee, Landis expects the bill will pass if it gets to the House floor. Legislators will not want to face voters after opposing a bill that increases drug penalties.

“It’s so easy to vote for, it’s a no-brainer,” Landis said. “Nobody ever lost an election because they’ve voted to increase drug sentences.”•

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