Pending criminal code changes focus of concern

December 30, 2013

Indiana prosecutors are concerned that pending changes in the state's criminal code, now set to go into effect next summer, will dramatically impair their ability to battle drug crimes.

And that's only one of the controversies brewing over the state criminal justice system's first major overhaul in more than 35 years. House Enrolled Act 1006 was adopted by the state General Assembly last session, with the understanding the legislation would be "fine-tuned" before the changes take effect July 1, 2014.

To hear the Indiana Prosecuting Attorneys Council tell it, the new criminal code needs more than minor tinkering.

A group representing Indiana judges, meanwhile, opposes any substantial changes to the legislation.

That's not to say prosecutors aren't in favor of many aspects of the new code, including a provision that those incarcerated will serve at least 75 percent of the sentence imposed by a judge. For many years, most inmates in Hoosier prisons receiving credit for good behavior have been released after serving half of their sentences.

But under the new code, prosecutors say, those inmates will be serving 75 percent, rather than half, of significantly shorter prison terms, particularly in drug-related cases.

The state's primary motivation in revamping its criminal code?

"I think without a doubt the reduction of Department of Correction population and the costs associated with building new prisons and warehousing inmates," Delaware County Prosecutor Jeffrey Arnold told The Star Press of Muncie recently when posed that question.

"To me, it's all about money," Delaware Circuit Court 4 Judge John Feick said. "The legislature doesn't want to fund prisons."

"Our prisons are at maximum capacity, and they're very expensive to build," said state Rep. Sue Errington, D-Muncie.

Aaron Negangard, prosecutor of Dearborn and Ohio counties in southeastern Indiana and an official with the Indiana Prosecuting Attorneys Council, said sentencing standards should reflect "a policy toward public safety."

If reducing prison population is "the standard, we're not going to have a safe Indiana," he added.

There's also the matter of funding programs — at the county level — to allow local substance-abuse treatment for offenders who, under the current code, would perhaps receive that treatment in prison.

Arnold — while maintaining Delaware County was "ahead of that curve" with programs already in place — was concerned that would result in "unfunded mandates" for a county government already on the brink of financial insolvency.

"That's not going to happen," said state Rep. Greg Steuerwald, R-Avon, who wrote the bill that became House Enrolled Act 1006.

Steuerwald said finding funding for local treatment programs was the "most essential" issue facing legislators as they work to revise the new criminal code before it goes into effect next year.

Negangard, meanwhile, said he believed state legislators realized they would have to provide cash-strapped counties with money for such local treatment programs.

One funding option that's been discussed, he said, is a new state tax on beer.

House Enrolled Act 1006 has been criticized on other fronts. Some prosecutors have raised the planned reduction in penalties for other crimes, ranging from burglary to possession of child pornography.

And a consultant's report recently suggested that, contrary to its apparent purpose, the new criminal code would actually increase the population of Indiana's prisons.

Steuerwald said adjustments in the code might need to be made in response to that report. He noted such revisions were anticipated when the bill was adopted in the last session.

"We're working on a draft now," he said.

The controversies have prompted suggestions that implementation of House Enrolled Act 1006 be put off a year, until mid-2015.

"I really hope they'll set this off for another year, for legislative hearings again, and not fine tune it (after implementation)," Arnold said.

Asked about a possible delay in implementing the new code, Steuerwald said, "Right now, we're working toward having it (go into effect July 1)."

Indiana legislators most recently enacted sweeping changes in the state's criminal code in 1977, the year Jimmy Carter became president, Elvis Presley died and disco fever, for better or worse, began to grip the nation.

Most involved would agree that after more than three decades, revisions in that code that better reflect the values and priorities of 21st century Hoosiers are in order.

According to Arnold, a "major push in the reform of the code was because of drug crimes, and maybe rightfully so."

"The DOC is full of inmates who suffer from addictions and are there because of drugs," the Delaware County prosecutor said. "We weren't really opposed to reduction of crimes for people who have addictions. ... The changes that allow for treatment of addictions on the local level."

But it's the changes that would significantly reduce maximum prison terms for drug dealers have prosecutors concerned.

With those involved in the trafficking of drugs facing more lenient sentences, their incentive to cooperate with police investigations targeting major drug suppliers will diminish, Negangard said.

"They're not going to work with us," the southeastern Indiana prosecutor said of the lower level drug dealers who are now sometimes willing to work as informants in exchange for leniency. "The big guys would be untouchable. ... The big stick (of threatened prison time) is now a twig."

Negangard also said that gang members from the Cincinnati area active in the drug trade have tended to stay out of nearby Indiana counties, aware of the Hoosier state's strict drug-dealing laws.

"It helps keep Indiana safe," he said of existing drug-dealing laws.

The Indiana Prosecuting Attorneys Council has noted that a drug-dealing conviction that now carries a standard sentence of 10 years would carry an advisory sentence of two years under the new code.

Arnold suggested that with less concern about significant prison terms, those who now participate in programs like those offered through Delaware County's forensic drug court will elect instead to just serve brief sentences, then return to their addictions.

"We won't be able to help them," he said. For those who do go to prison, under the new code many won't stay there long enough to participate in the DOC's Therapeutic Community program for substance abusers, he said.

Judge Feick, who presides over Delaware County's drug court, said he wasn't certain that those who commit drug-related crimes are contemplating the severity, or leniency, of the statutes they are violating.

"They just want to get what they want," he said. "Their addiction is so strong."

The judge acknowledged there was a "fear factor" — about going to prison — that prompts some to complete drug-treatment programs.

But even more participants, tired of the devastating impact of substance abuse on their lives, "just want to get clean," he said.

State Rep. Steuerwald said it was inevitable that not all criminals would respond to the state's anti-recidivism efforts.

"I think certain people are going to take advantage of the programs we offer them and certain people are not," he said.

Prosecutors have noted, on a positive note from their standpoint, that the new code would increase possible penalties — in terms of actual time spent in prison — for the most serious crimes, including murder, rape and child molesting.

It also enhances the additional penalties facing those who have been declared habitual offender.

And it places a two-year cap (down from four years) on the sentence reductions an offender can receive through academic achievements while in prison.

They aren't happy with a change that would significantly add to a judge's discretion to issue suspended sentences.

Under the revised code, the only defendants without prior convictions not eligible for a suspended sentence would be those convicted of murder.

The only other defendants facing non-suspendable sentences would be convicted felons committing the most serious classifications of crimes.

"The certainty of punishment," Arnold said, "is the only thing I've seen that deters crime."

Judges, perhaps not surprisingly, do not have a problem with having increased discretion when it comes to imposing sentences.

The Board of Managers of the Indiana Judges Association has announced that it opposes any "substantive changes" to House Enrolled Act 1006, and "specifically (opposes) reducing or eliminating the discretion of judges to sentence criminal appropriately... including the exercise of discretion to suspend sentences when appropriate."

The Indiana Public Defender Council has also been largely supportive of the new code, including reductions in penalties for drug-related crimes.

Jack Quirk, Delaware County's chief public defender, acknowledged reaching a "valued judgment" on what punishment is appropriate for such crimes can be difficult.

Quirk acknowledged frustration when clients facing charges tied to drugs such as methamphetamine find themselves facing Class A felonies, which carry maximum 50-year prison terms.

"Some of them are over-charged, and some of them are over-punished," he said. "That's just ridiculous."

Other prosecutors have expressed unhappiness with a reduction in sentences stemming from house burglaries.

Arnold has noted that defendants convicted of crimes such as distributing child pornography would face minimum, suspendable sentences of six months in jail — no more severe than the punishment for those convicted of the lowest forms of theft.

"How can you compare human trafficking of minors ... or possession of child pornography to stealing a loaf of bread?" he asked.

Steuerwald said it was possible changes made to the code this legislative session would include "putting more teeth in the advisory sentences" for some crimes.

Negangard said Indiana's prosecutors have a proposal for reducing the state's prison population without significant changes in the state's sentencing statutes.

He suggests the state fund programs like those proposed under House Enrolled Act 1006, offering substance abuse treatment to offenders aimed at fighting recidivism, and then re-evaluate at a later date to see if that has achieved the desired goal of a lower DOC population.

"I wouldn't mind if we bumped this (criminal code change) off a couple of years," he said. "Put some money into treatment programs."

How does the state pay for such programs?

Negangard points to an option that's been discussed at the Statehouse — implementation of a new state beer tax.

An assessment of a nickel on every six-pack sold statewide would generate $150 million annually, according to one estimate.

"There's money if there's a will to do it," he said. "The legislature knows they've got to find the money. ... A nickel's not going to affect anybody's bottom line."

State Rep. Steuerwald said he thought it was more likely a greater percentage of the state's existing alcohol tax would be redirected to addiction services.

Only 7 percent of that revenue goes for such efforts now, he said.

Arnold and Negangard acknowledged that after more than three years of discussion, some legislators are "tired of the debates" and eager to have criminal code revision behind them.

The Delaware County prosecutor said he hoped that wouldn't prompt lawmakers to enact a largely unchanged version of House Enrolled Act 1006, with the intention of making later revisions in response to problems that develop down the road.

"This isn't something we can afford to fine tune," Arnold said. "It needs to be as good as is can possibly get when it is enacted, and it's not there right now."


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