SB 561 and Sentencing Reform

It’s been difficult going for the sentencing reform effort discussed in previous Our State Legislature articles. The need for reform is urgent: Indiana has the fastest growing incarceration rate in the country, even though the Hoosier violent crime rate has dropped by a third in recent years. During the past decade, the prison popula- tion grew 41%, three times faster than any neighboring state. The costs skyrocket; our resources keep sinking.

This last summer, using research from the Pew Center and the Council of State Governments, the criminal code evaluation commission drafted legislation for the 2011 session. Additional initiatives are expected in 2012.

The principle bill this session is SB 561, which permits the diversion of low-level drug and theft offenders from prison to a community corrections program or problem-solving court and treatment. Funding for the required new programs and personnel will come from prisoner reduction.

Indiana’s lengthy mandatory sentences for drug crimes are a chief cause of its prison overpopulation. In a Pew Report comparison, the penalty for selling 3 grams of cocaine is 2 to 20 years in Texas; up to 12 1⁄2 years in Wisconsin; probation or up to 1 year in Ohio; and 20-50 years in Indiana. The average sentence for drug sale in Indiana is nearly 50% longer than the average sentence for sexual assault.

The reform package downgrades possession of small amounts of cocaine or methamphetamine to a D felony (six months to three years) and dealing of small amounts to a C felony (two to eight years).

Theft sentences are also restructured to make the punishment proportionate to seriousness. Theft of property below $750 is made a misdemeanor rather than a felony; an amount between $750 and $50,000, a Class D felony; above $50,000, a class C felony.

Judges are given discretion to sentence those convicted of lesser felonies to spend the final six months to three years outside prison. Those who have committed a Class D felony may serve their entire sentence on pro- bation in a community transition program, as long as they do not violate a condition of probation.

This smarter approach to corrections not only cuts costs but also improves public safety by promoting rehabilitation, community reentry, employability and strengthening of family and social ties. Those convicted of nonviolent minor crimes have a chance to become productive members of society.

SB 561 is carried by Senators Brent Steele and Richard Bray and Representative Ralph Foley; it has the endorsement of the Governor and Chief Justice Randall Shepard.

Not one of these could ever be accused of being soft on crime. The measure has the support of legislative leaders, most members, and almost all involved in law enforcement. Almost all, that is, except prosecutors.

Prosecutors have great trouble with a sentencing bill that does not include enhancements. In December, the board of the Indiana prosecutors’ professional association voted to oppose the shortening of drug penalties. And that opposition succeeded. The bill was amended to require that 85% of some terms must be served in prison.

Because this would result in even higher expenditures, there would be no money for reform.

The Senate vote to pass the amended SB 561 was 46-3.

If there will be action on it in the House, the extended prison time provisions must be deleted.

Indiana needs this money-wise, results-wise change in dealing with offenders.

Rethinking Incarceration

Originally published Spring 2010

Indiana’s fiscal difficulties had one happy consequence: it resulted in a 2010 General Assembly session that passed remarkably few new crimes or enhanced sentences. Larry Landis, Executive Director of the Indiana Public Defender Council, said this year’s low number was a record.

The reason for this restraint, of course, is that the cost of incarceration is enormous. And what’s worse, as costs increase and resources disappear, Indiana like many other states has cut back on prison programs like education and recreation, which increases the likelihood of recidivism and its future costs.

Alternatives to incarceration not only save money – money that could fund public education, for example – but they also promote rehabilitation, community reentry and the re-establishing of social ties.

One promising alternative is the use of problem-solving courts. A bill that seems headed for enactment would permit city or county courts to set up a variety of treatment diversions for offenders. These could include but are not limited to drug courts, family dependency drug courts, mental health courts, reentry courts, domestic violence courts, veteran’s courts, and community courts to address specific neighborhood or local criminal problems. The due process concerns with the original bill have been eased by amendments.

The Assembly was also creative in handling a bill criminalizing a juvenile’s creating, transmitting or possessing sexually provocative video or text messages. “Sexting”, as this has come to be called, is an issue of great interest in many legislatures this year. It’s not a new preoccupation of teens; it’s simply the use of the newest technology for them to explore and express their sexuality.

Sexting is of course ill-advised, but for politicians to make it a delinquent act would expose a large number of teens to the criminal justice system. The cost to them and to the taxpayers would be great. If punishment were to include incarceration, the costs would escalate. The average cost of housing a juvenile in a state juvenile facility was $75,050 in FY 2009.

Confronted with these fiscal realities, the legislature decided to refer the sexting bill to a summer study committee for its recommendations and to permit schools to offer instruction regarding the risks and consequences of sending sexually suggestive materials electronically.

This openness to exploring alternative ways of addressing undesirable behavior is wise and socially beneficial.

We should each make it a point to encourage our legislators to continue it even when funding becomes less dire.