News and Tribune

February 27, 2014

Law goes into effect in July allowing judge’s leeway in Indiana

Could help reduce strain on state’s prison system

By MAUREEN HAYDEN
newsroom@newsandtribune.com

INDIANAPOLIS — Judges who’ve been clamoring for more control over prison sentences may be exercising some of that discretion this summer.

A long-in-the-making rewrite of Indiana’s felony criminal code removes some mandatory sentences added during decades of tough-on-crime policies, which led to higher prison costs.

The updates, passed last year, take effect July 1 and give judges more leeway by removing the binding, “non-suspendable” sentences for many low-level drug and property crimes.

“If somebody deserves to go to prison for 80 years for the crime they’ve committed, we’ll still be sending them there,” said Superior Court Judge Robert Freese, of Hendricks County. “But sending people to prison when it’s not appropriate isn’t justice.”

Like many of his colleagues, Freese says minimum sentences handcuff judges from doling out appropriate punishment — such as assignments to community-based treatment programs.

Someone charged with theft for stealing a Slurpee from a convenience store, for example, would face a mandatory sentence to state prison of no less than 180 days if he has a felony on his record within the past three years.

“Is sending someone to jail for stealing a $1.49 Slurpee the right punishment and the right use of our limited criminal justice resources?” Freese said.

The example may seem extreme, but a 2010 study commissioned by judges, legislators and former Gov. Mitch Daniels found the state’s prison population had grown by more than 40 percent in a decade. Annual prison costs were projected to reach $1 billion a year by 2017.

The average sentence for non-violent crimes was 96 months, according to the study, while the average sentence for sexual assault was only 65 months.

The study’s authors blamed the discrepancy in part on mandatory minimum sentences that elevate penalties for drug offenders and repeat low-level offenders. They suggested returning some discretion to local judges as a partial remedy.

The criminal code reform passed last year repealed many of mandatory minimum sentences.

As legislators revised the bill this year, adding new sentencing guidelines, they kept mandatory sentences for high-level crimes such as murder, rape and drug dealing. But they left intact language that eliminated mandatory terms for lower-level crimes including theft and drug offenses.

John M. Marnocha, a St. Joseph County judge who spent three years on the commission that helped rewrite the criminal code, said increasing judges’ discretion can reduce recidivism and bring down the prison population.

Judges may dole out alternative sentences to low-risk defendants who’d benefit, for example, from drug or alcohol treatment, he said. They could also start using options such as house arrest or work release.

But, Marnocha cautions, multiple factors are at play. Prosecutors and judges may risk being seen as “soft on crime” if they opt for prison alternatives. All of Indiana’s county prosecutors and most state judges are elected.

“It’s almost too early to tell what’s ultimately going to happen,” Marnocha said. “It’s still a work a progress.”

Larry Landis, head of the Indiana Public Defender Council, worries the increased judicial discretion will be offset by other changes made to the criminal code this year.  Under pressure from prosecutors, legislators increased advisory sentences for some crimes, mandated minimum sentences for some habitual offenders and jacked up penalties for gun-related crimes.

You can’t call this criminal code ‘reform’ anymore,” Landis said.

The impact all of the changes will have on the prison population remains in dispute.  Last summer the state Department of Correction predicted an increase in the prison population while the Legislative Services Agency — the research arm of the General Assembly — forecast an eventual drop.

The biggest unresolved issue remains funding. The General Assembly has yet to allocate money for communities to expand local programs that judges would use as part of new sentences.

The Senate Appropriations Committee is expected to take up the issue Thursday. Reps. Greg Steuerwald, R-Avon, and Jud McMillin, R-Brookville, are expected to argue for local funding.

Both may cite a recent study that says the new criminal code, once in effect, will drive down the projected state prison population. They’ll argue that the resulting savings should be passed on to communities for programs that offer sentencing alternatives.

“We’re so close to getting this done,” Steuerwald said. “We know there are too many people in prison who don’t need to be there.”

— Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at maureen.hayden@indianamediagroup.com