The Herald Bulletin

August 22, 2012

Sentencing reform undertaken with opposite premise

By Maureen Hayden
CNHI Statehouse Bureau

INDIANAPOLIS — A closer look at low-level offenders in Indiana prisons reveals that few of them are first-time criminals.

A yet-to-be released study of state prison inmates convicted of Class D felonies — the lowest felony level in Indiana — shows they had an average of five prior criminal convictions.

The study also shows that of those first-time offenders who did go to prison on a Class D felony conviction, nearly 80 percent of them did so for committing a violent crime such as battery or domestic violence.

The study upends the premise that drove the sentencing reform effort that failed in the last legislative session — that prosecutors and judges were crowding state prisons with low-risk, first-time offenders.

“It shows we aren’t sending beginners to prison,” said David Powell, executive director of the Indiana Prosecuting Attorneys Council.

Boone County Prosecuting Attorney Todd Meyer, among those who pushed for the study, echoed Powell.

“The people in prison are those who need to be in prison,” Meyer said.

The study was conducted by the Center for Criminal Justice Research at Indiana University’s Public Policy Institute in Indianapolis. A final version of the report is slated to be released next week.

Center staff conducted the study at the direction of the Legislature’s Criminal Code Evaluation Commission, whose members plan to take up sentencing reform again in the next session.

While the study shows that 91 percent of Class D felons in the Indiana Department of Correction are repeat offenders, it also shows why many of them are there: on drug and theft charges. Most of the drug convictions involved dealing in marijuana, and over half the theft convictions involved stolen items worth less than $250.

Andrew Cullen, legislative liaison for the Indiana Public Defender Council, said the study shows there are too many people in prison due to drug and theft crimes.

“The data shows that we are incarcerating a lot of citizens who are nonviolent, low-level property offenders, and we believe there are other options that are much more effective in addressing that behavior,” Cullen said.

About 27,000 offenders are housed in state prisons run by the Indiana Department of Correction; about 15,000 are there on Class D felonies.

Cullen and other advocates of sentencing reform have argued that those low-level offenders are crowding prisons and taking up space that should be used for violent offenders.

The study shows that the state prisons are crowded with people who can’t — or won’t — stay out of trouble. More than half of the Class D felons in DOC prisons are there because they violated the terms of their probation or parole.

“These were people given the opportunity to succeed back in the community but who decided not to follow the rules,” said Floyd County Prosecuting Attorney Keith Henderson, a strong advocate for the study.

Don Travis, chief probation officer in Howard County and president of the Probation Officers’ Professional Association of Indiana, is one of the few non-legislators who sits on the Criminal Code Evaluation Commission.

“The question has been, ‘Are we putting the proper people in DOC?’ and this report indicates we are,” Travis said.

The study’s findings are important, especially to the state’s prosecutors, who were widely blamed for derailing legislation last year aimed at reducing the state’s prison population by sending more low-level offenders back to their home communities.

Local prosecutors balked at the notion that they were driving up the state’s prisons costs.

State Rep. Ralph Foley, R-Martinsville, and the retiring chairman of the Criminal Code Evaluation Commission, said the new study will be helpful if it sheds light on who needs to be in prison — and who’s better served by community-based corrections programs.

“This isn’t about saving money (in state prison costs),” Foley said. “It’s about making sure we’re spending the right amount of money in the right places.”

The Center for Criminal Justice Research study came in response to questions raised by prosecutors and some legislators to a January 2011 report from the Council on State Governments and the Pew Center on the States. That report, initially used as an argument for sentencing reform, showed Indiana’s prison population had increased more rapidly than surrounding states over the past decade and was on track to keep escalating at an enormous cost to the state budget.

But prosecutors questioned why that report used prison population numbers from 2000 to 2008, which showed a rise in prisoners, but didn’t use numbers from 2009 and 2010, which showed a leveling off of the prison population.

Prosecutors also questioned the report’s finding that about half of new prisoners in DOC facilities were people whose crimes fell into the least serious category, Class D felonies. Those numbers were used as basis for the sentencing reform bill that would have reduced penalties for low-level drug and property crimes and shifted those offenders out of state prisons and back into local jails and community corrections programs.

Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at