News From Terre Haute, Indiana


July 31, 2011

STATE OF THE STATEHOUSE: Sentencing reform not for the faint of heart

INDIANAPOLIS — After sitting through another meeting of a legislative study committee charged with taking a hard look at crime and punishment in Indiana, I realized why it’s been nearly 40 years since lawmakers undertook a similar task and why an attempt to fast-track a sentencing reform bill went off the tracks in the last session of the Indiana General Assembly.

A comprehensive review of the state’s criminal code and sentencing policies isn’t for the politically faint of heart or those afflicted with attention deficit disorder.

It’s tedious stuff, plowing through legal language and figuring out the unintended consequences of simplifying a criminal code that’s been altered and expanded by a legislature that changes — in personalities and priorities — every two years.

In other states where criminal codes have been overhauled or cleaned up to eliminate antiquated, redundant or conflicting laws, it’s been likened to scraping barnacles off an old hull. The gluey substance excreted by barnacles to attach themselves is one of the strongest natural adhesives in the universe.

The analogy may be hyperbole, but it’s not the first time I’ve invoked some exaggeration to illustrate the difficulty of the task. In a recent column, I wrote that a current state senator told me it took a couple of guys about three days to rewrite the entire criminal code back in the 1970s.

When I asked one of those guys, retired lawyer Bob Small of Indianapolis, how he achieved such a task, he looked surprised.

“It took us three-and-half years,” he said.

Small, who later became an influential policy advisor to Democrat governors Evan Bayh and Frank O’Bannon, worked for a state commission established in the early 1970s and given the express task of revamping the Indiana criminal code. It, too, had been “barnacled” in the years since it had been rewritten in 1948. 

The commission for which Small worked had another big task beyond cleaning up the criminal code. It was also charged with rewriting the code in a way to switch punishment from “indeterminate” sentencing to “determinate” sentencing. 

Indeterminate sentencing put huge discretion in the hands of judges and parole boards to decide how long it would take an offender to be rehabilitated. Determinate sentencing limited that discretion and set up more of a prescriptive formula for punishment.

Long before Small and the commission took their recommendations to the legislature, they traveled around the state, inviting judges, prosecutors, defense attorneys and the public to help them wrestle with proposed changes.

It took the commission about three of those three-and-half years to build some consensus on difficult issues before the legislative bill to revamp the code was even drafted.

There's more to the story than that, but the moral of the tale may be that big changes deserve big effort and a lot of time to move from resistance to acceptance. 

Back in the 1970s, Small and the commission weren’t facing the same budgetary pressures that exist today.

The sentencing reform bill that failed in the last session was driven by the fact that Indiana prisons have topped out. There are now more prisoners than beds and the chunk of the state biennial budget that goes to the Indiana Department of Corrections is big: More than $1 billion.

So the question for legislators in the next session may have to do with the price of patience.

Maureen Hayden is Statehouse bureau chief for the Tribune-Star. She can be reached at

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