Transcript Aspects Potentially Reducing DOC

Report of the Criminal Code Evaluation
Commission Workgroup
Presented to Indiana Association of
County Councils
September 24, 2012
Background
• Criminal Code Evaluation Commission
established by HEA 1001, 2009
• Purpose: “evaluating the criminal laws of
Indiana”
• Summer Study Committee, comprised of
legislators, state officials, IPAC, IPDC,
academics
• 2010: entertained proposals from the Justice
Reinvestment Initiative
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2010 Justice Reinvestment Initiative
• Early 2010: Governor, AG, Speaker, President
Pro Tempore and Chief Justice invited Pew
Center to analyze Indiana’s approach to
incarceration vs. community supervision
 Purpose: enhance public safety, reduce recidivism
• Summer 2010: Analysis begun by Council of
State Governments
• Late fall 2010: Recommendations made
• January 2011: SB 561 introduced in General
Assembly
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2010 Justice Reinvestment Initiative
(cont’d)
• Proposals included:
 Monetary incentives to encourage supervision of
nonviolent D felons in the community
 Enabling probation to manage caseloads better
• Administrative probation for low-risk offenders
• Swift and certain sanctions, saving court time and delay
• Grants to probation departments for innovations
 Payments to counties to keep D felons on probation
rather than short terms in DOC
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2010 Justice Reinvestment Initiative
(cont’d)
• Legislation died in 2011
• Some aspects were adopted in 2012
 Swift and certain sanctions
 Improvement of sentencing abstract (more info to
DOC about inmates; better data in future)
 More information to victims
• Length of actual sentence
• Release from prison
• One apparent result: D felony commitments
have decreased since 2010
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Criminal Code Evaluation Project
• Background:
 Initial work group:
• Steve Johnson (IPAC)
• Larry Landis (IPDC)
• Judge John Marnocha (St. Joseph Superior Court)
 Identified undergirding principles in 2010
 Team of attorneys began working on comprehensive
review in early 2011; completed July 2012
 Note: this review is independent of the earlier “Pew
Study” (Justice Reinvestment Initiative)
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Criminal Code Evaluation Project
• Background (cont’d)
 Contributing agencies:
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Indiana Judicial Center
Indiana Prosecuting Attorneys Council
Indiana Public Defender Council
Indiana Attorney General
 Agencies loaned attorneys, law clerks
 Significant research on model penal code, laws of
other states
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Criminal Code Evaluation Project
Principles
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Consistency
Proportionality of Penalties
Like Sentences for Like Crimes
Elimination of Duplication
Increased Certainty (Length of Sentence to be
Served)
• Keep Dangerous Offenders in Prison; Avoid Use
of Scarce Prison Space for Nonviolent Offenders
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Criminal Code Evaluation Project
Scope of Review
• All Title 35 crimes
 Felonies only
• Sentencing matrix (6 levels of felonies, from 6
(lowest) to 1 (highest)
• Other sentencing issues
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Suspendibility of sentences
Habitual Offender and related provisions
Sentencing enhancements
Credit time
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Aspects Potentially Reducing
DOC Commitments
• Many recommendations actually propose to
increase sentences in DOC; these have no
effect on counties
Examples:
 Sex Crimes
 Child Solicitation and certain other child abuse related
crimes
 Crimes that result in death
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Aspects Potentially Reducing
DOC Commitments (cont’d)
• Other recommendations would increase
judicial discretion
 Not require community supervision
 In some cases, judges may prefer county supervision
but have been forced to commit to DOC (e.g.,
nonsuspendibility provisions)
 If more options are available, judges may prefer
county supervision
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Aspects Potentially Reducing
DOC Commitments (cont’d)
• Examples:
 Theft: dollar threshold for felony theft ($750)
• 49 states have dollar threshold
 Range: $250 to $2,500
 Average: $808
 Most frequent:
• 15 @ $500
• 15 @ $1,000
• Would also lower threshold for Class C felony theft to
$50,000 from $100,000 – so more thefts would be
charged at higher level
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Aspects Potentially Reducing
DOC Commitments (cont’d)
• Examples (cont’d)
 Drug Penalties
• Stair-stepping penalties (no leap from D felony to B or
from C to A felony for possession of cocaine/meth)
• Steady progression using weight ranges of controlled
substances, from newly recommended Level 6
(equivalent of D felony) to Level 1 (“high Class A
felony”)
• Marijuana possession: recommend misdemeanor only
• Marijuana dealing: same penalty levels as currently
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Aspects Potentially Reducing
DOC Commitments (cont’d)
• Examples (cont’d)
 Drug Statutes (cont’d)
• Removal of non-suspendibility provisions in drug
statutes
 Sentencing Provisions
• Removal of certain non-suspendibility provisions
 N/A to a person convicted of a Class D (Level 6) felony
 N/A to other felony convictions if the prior is a Class D
(Level 6)
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Aspects Potentially Reducing
DOC Commitments (cont’d)
• Effect of changes
 Provides expanded sentencing options for judges in
the case of Class D (Level 6) felonies
 Provides for misdemeanor treatment of thefts under
$750
• Prosecutors tell us they routinely charge these cases
as Conversion (Class A misdemeanor) anyway
• For first-time small-dollar D felony theft, we believe
judges do not routinely commit to DOC now
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Aspects Potentially Reducing
DOC Commitments (cont’d)
• Effect of Changes (cont’d)
 Provides for misdemeanor treatment of marijuana
possession (recommend no felony sentences for
possession)
• Currently a Class D felony to possess over 30 grams
(just over one ounce)
• Data Analysis Working Group* found only 47 new
commitments statewide (4% of total commitments) for
marijuana possession
 * I.U. Study of Drug Commitments for 3 months in 2011
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Aspects Potentially Reducing
DOC Commitments (cont’d)
• Effect of Changes (cont’d)
 Many D felony commitments are multiple repeat
offenders
• These offenders would still likely be committed to DOC
under proposed system
 Judges would have enhanced discretion in cases of
Class D (Level 6) felons with a prior felony
• Unclear in what percentage of cases a judge might still
commit to DOC based on extensive prior record
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Potential for Management of
Offenders at County Level
• Not at all certain that the provisions would lead
to any significant increase in jail commitments
• Provisions to streamline and provide additional
options to Probation offices already passed by
legislature/required by Indiana Judicial
conference
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Potential for Management of
Offenders at County Level (cont’d)
• New provisions include:
 Movement toward single probation office in each
county (reducing overlapping supervision, freeing up
probation officer time)
 Ability of Probation to impose “swift and certain
sanctions” – thus reducing recidivism as well as
probation officer time in court
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Potential for Management of
Offenders at County Level (cont’d)
• Potential sources of funding from State
 Marginal cost savings if commitments to DOC actually
decrease
 Potential additional court fees
 Potential additional diversion/deferral fees (Judges
concerned about “tipping point”: cheaper to take the
conviction?)
 Potential re-distribution of drug/alcohol fees
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Potential for Management of
Offenders at County Level (cont’d)
• Potential sources of funding from State (cont’d)
 DOC working to identify funds for:
• Additional counties for Community Corrections (CC)
 Counties without CC send more D felons to DOC than
those with CC (fewer options available)
 In 2011, DOC was able to shift $6 million in additional
dollars to CC in the counties
• Other community supervision services (probation)
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Potential for Management of
Offenders at County Level (cont’d)
• Potential sources of funding from State (cont’d)
 Additional suggestions from counties are welcome
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Process
• Criminal Code Evaluation Committee now
holding hearings
 See State web site for dates and agendas
 Rep. Foley intends to propose sources of funding for
counties (October 18, 10:30 a.m.)
 Don Travis, President of POPAI, to testify on
probation services (October 4, 1:30 p.m.)
 Public testimony to be received October 4 and 18
Note: Agendas may be subject to change—monitor site
for changes
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• QUESTIONS??
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Deborah J. Daniels
Partner
Krieg DeVault LLP
One Indiana Square
Suite 2800
Indianapolis, IN 46204-2079
Phone: 317-238-6253
Cell: 317-414-2602
Fax: 317-636-1507
[email protected]
www.kriegdevault.com
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