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October 1, 2012

Recodifying our laws

Effort to balance criminal sentences likely to result in action in ’13 Indiana Legislature

INDIANAPOLIS — To understand why the Indiana criminal code may undergo a major overhaul in the next legislative session, it helps to know that child molesters and rapists face less prison time than someone caught with a few grams of cocaine standing near a public park.

The code – which lays out the standards for crime and punishment in Indiana – is, as one judge puts it, “out of whack and in need of realignment.”

That quote comes from John Marnocha, a trial court judge in South Bend, the past president of the Indiana Judges Association and a member of the Indiana Criminal Code Evaluation Commission.

Over the past few weeks, Marnocha and commission members have been vetting major recommendations that, if put in place, would overhaul the state's criminal felony laws to make punishment more proportionate to the crime.

The recommendations come from a work group of attorneys, created by the commission and led by former U.S. Attorney Deborah Daniels. They call for some sweeping changes, including more levels of felonies, tougher penalties for the worst sexual and violent crimes and less prison time for low-level drug crimes.

“What we’re talking about is part of long-term, top-to-bottom reform,” said state Rep. Matt Pierce, who served as the commission’s first chairman when it was created in 2009. Commission members include an array of stakeholders in the justice system, representing judges, lawmakers, prosecutors, public defenders, probation officers and corrections officials.

Pierce, a Bloomington attorney, is a liberal Democrat in a statehouse dominated by conservative Republicans, but his allies in the effort are on both sides of the political aisle.

“There’s a pretty strong consensus between conservatives and liberals that this needs to get done,” Pierce said.

That’s echoed by the current commission chairman, Republican state Rep. Ralph Foley from Martinsville, who likes to remind his colleagues: “The Indiana constitution requires proportionality.”

That’s no easy task.

The state’s criminal statutes were last “recodified” by the legislature in 1977. Since then, the legislature has added a lot more crimes to the code, but did so in a piecemeal fashion without making sure there were like penalties for like crimes.

Foley blames it in part on “law and order” lawmakers – himself included – who beefed up the punishment for drug crimes, convinced it would be a deterrent.

That’s why possessing a small amount of cocaine while near a park or a school is a class-A felony – the highest felony level – which can get you 20 to 50 years in prison.

Compare that, as the commission’s work group did, to rape. That crime is a class-B felony that carries an advisory sentence of 10 years and a maximum penalty of 20 years. Child molesting, charged as a class-C felony, carries a maximum penalty of 8 years.

It’s not just the drug laws that may be in for a fix.

One of Marnocha’s favorite examples of how the code is “out of whack” involves comparing theft and forgery. Theft, up to $100,000, is a class-D felony with a maximum penalty of three years behind bars. Forgery, charged as class-C felony, can get you eight years.

“So if I had a suitcase filled with $99,999 and you stole that, it’s only a class-D felony. But if you stole my checkbook, signed my name and cashed a check for $9.99, that’s a class-C felony and you could go to jail for a lot longer,” Marnocha said.

“That’s one example; there are others that are a lot more serious.”

The present formula no longer makes sense to longtime legislators like state Sen. Brent Steele, a conservative Republican from Bedford and influential chairman of the Senate’s courts and corrections committee. Steele has already said he’ll carry the Senate version of the bill that rewrites the criminal code and base much if it on the recommendations that come out the Criminal Code Evaluation Commission.

“We’ve got to be willing to back up and look at what we’ve done,” Steele said. “And then go in and fix it.”

Pierce agrees. “The slogan used to be ‘Let’s be tough on crime,’ ” he said. “The new slogan is ‘Let’s be smart on crime.’ ”

Maureen Hayden is the Indiana Statehouse bureau chief for CNHI, the parent company of the Tribune-Star. She can be reached at maureen.hayden@indianamediagroup.com.

 

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