ISBA section calls for nonviolent sentencing reforms

More than six years after sweeping criminal code reforms were enacted in Indiana, a section of the Indiana State Bar Association is calling for additional sentencing reforms to establish parity with those who received longer sentences before the reforms were enacted.

The Criminal Justice Section of the ISBA, represented by Professor Joel Schumm of Indiana University Robert H. McKinney School of Law, advocated for additional sentence modification options for non-violent offenders Tuesday during a meeting of the Interim Study Committee on Corrections and Criminal Code.

The study committee, led by Rep. Wendy McNamara, R-Evansville, was tasked with reviewing the implementation of House Enrolled Act 1006, the code-reform bill that dramatically changed Indiana’s sentencing structure. Schumm pointed to July 1, 2014, as the turning point in sentencing reform.

After July 1, 2014, nonviolent offenders were sentenced according to more lenient guidelines meant to preserve jail and prison resources. But on or before June 30, 2014, nonviolent offenders convicted of the same crimes were sentenced to longer periods of incarceration per prior guidelines.

At the time, Schumm said, HEA 1006 prevented amelioration — that is, offenders sentenced under the pre-reform guidelines could not receive the benefit of the more lenient guidelines enacted in July 2014. That prevented a flood of modification petitions hitting Indiana trial courts, he said.

But now, six years out, Schumm and the Criminal Justice Section say there should be a system to level the playing field between those sentenced for nonviolent crimes before criminal code reform and those sentenced after. The section did not put forth a specific proposal for achieving parity, but Schumm discussed general ideas for revising the sentence-modification statute.

Hundreds of Hoosiers sentenced for nonviolent drug offenses under pre-HEA 1006 guidelines could benefit from a post-HEA 1006 sentence modification, Schumm said. Today, offenders will serve less than 10 years for a Level 5 felony conviction, whereas previous guidelines required a 20- to 50-year sentence for the same crime.

Chris Naylor, executive director of the Indiana Prosecuting Attorneys Council and a lay member of the committee, noted the language of HEA 1006 was very explicit in prohibiting such modifications. Schumm agreed, saying the Legislature would have to change the statutory language to achieve the parity he was advocating for.

Rep. John Young, R-Franklin, asked how changing the modification statute might affect judges’ sentencing discretion. Schumm said judges would retain discretion to impose sentences within a given range even if the statute is amended. The difference, he said, is that pre-July 2014 offenders could seek modification to within a post-July 2014 sentencing range.

“There’s no specific proposal, and anything is better than nothing,” Schumm said of the Criminal Justice Section’s position. “Really, the real concern is that a lot of discretion will mean a lot of disparity.”

In a similar vein, Bernice Corley, executive director of the Indiana Public Defender Council, told the committee that the goal of HEA 1006 — reducing prison populations and preserving resources — has not been realized.

Corley, who is also a committee lay member, pointed to data from the Indiana Criminal Justice Institute showing that since 2014, 14,467 sentence modification petitions have been filed. Of those, 3,090 have been granted, 4,524 have been denied, and roughly 7,000 were unaccounted for. At the time of the hearing, Corley had not yet contacted CJI to discern the reason for the unaccounted petitions.

“While sentence modification is a tool, it’s not providing a great deal of relief,” she told committee members.

Among the recommendations offered by Corley and Schumm was that prosecutorial consent should not be required to seek a post-July 2014 sentence modification. Additionally, the biggest statutory change, according to Corley, would be to amend the language allowing for sentence modifications only within the range in place at the time of sentencing.

Also, Corley advocated for the appointment of counsel for offenders in modification proceedings.

The 20-member study committee is scheduled to reconvene Oct. 6. Meetings can be watched online.

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