Report of the Criminal Code Evaluation Commission Workgroup

Report of the Criminal Code Evaluation Commission Workgroup

Presented to Indiana Association of County Councils

September 24, 2012

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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:

• 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

• 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 ProjectScope of Review

• All Title 35 crimes Felonies only

• Sentencing matrix (6 levels of felonies, from 6 (lowest) to 1 (highest)

• Other sentencing issues 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 ofOffenders 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 ofOffenders 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 ofOffenders 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 ofOffenders 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 ofOffenders 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 18Note: Agendas may be subject to change—monitor site

for changes

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• QUESTIONS??

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Deborah J. DanielsPartner

Krieg DeVault LLPOne Indiana Square

Suite 2800Indianapolis, IN 46204-2079

Phone: 317-238-6253Cell: 317-414-2602Fax: 317-636-1507

 [email protected]