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Criminal code changes get mixed reviews in Southern Indiana

Area prosecutors say they are less than satisfied with the modifications made to the Indiana criminal code last year

By Gary Popp
The Evening News and The Tribune

SOUTHERN INDIANA — With more than six months of hindsight, area prosecutors say they are less than satisfied with the modifications made to the Indiana criminal code last year.

Clark County Prosecutor Jeremy Mull and Floyd County Prosecutor Keith Henderson each said state legislators were too aggressive in redrafting portions of the code related to drug crimes.

“One of the significant impacts we have seen is the reduction in our ability to get strong sentences in drug cases,” Mull said. “These changes have taken away a lot of our ability with drug offenders, to remove them from the community, if they refuse to get the treatment that we make available to them.”

Henderson said the updated code’s reclassification of drug-possession charges, in particular, are detrimental to healthy communities.

“With our drug offenses, many of the penalties have been drastically lowered. For instance, if someone has a million dollars worth of marijuana that they are selling, and they get caught ... it is now a misdemeanor. I don’t think that is good public policy,” Henderson said. “Under that same category, the enhancements of dealing drugs within a 1,000 feet of school has been shortened [to 500 feet], and, now, it is no longer an enhancement if someone is dealing drugs in a goverment-assisted housing.”

Mull said those who commit drug crimes should receive stern justice because drug activity influences the majority of all criminal activity.

“Having been a prosecutor for approximately 15 years, I can attest to the fact that many, if not most, crimes in this community have a link to drugs and the abuse of drugs,” he said. “It has always been very important to me to take those individuals committing those sorts of offenses, which lead to other violent and property crimes, and remove those individuals from society, if they are unwilling to get treatment and clean themselves up.”

The criminal code was updated July 1, 2014, and includes many changes beyond drug crimes.

According to a document from Clark County prosecutor’s office from August 2014, while Steve Stewart led the office, the change is the first major rewrite to the criminal code since 1977.

Jeffersonville defense attorney David Mosley said it is too soon to determine if the updated structure is an overall improvement, but that he favors the new approach to drug-related crimes.

“It was a difficult thing to try to explain to a person how selling a very small amount of some drug to support a personal habit could cause you to face more prison time than a person who burglarized someone’s house or rape,” Mosley said. “That was totally out of whack. That is the best thing about the changes to this code.

He said the new code puts more authority in the hands of judges during the sentencing of a convicted person.

“Prosecutors do a very difficult, important job. But, they are an advocate. When you are a hammer, every problem looks like a nail,” Mosley said. “The easy, default answer is let’s convict them and let’s put them in prison for as long as we can. Where the judge has the benefit of sitting back and seeing the larger picture.”

One of the most predominate modifications is how offenses are classified. Under the old code, crimes were categorized from class D felonies, which have a maximum penalty of three years in the Indiana Department of Correction, to class A felonies, which max out at 50 years incarceration.

The new code comes with the addition of two felony classifications and are classified from level 6 felony, which have a maximum prison sentence of two and a half years, to level 1 felony, which carries a maximum of 40 years in DOC.

A charge of murder remains unaltered, with a penalty range of 45 to 65 years, life in prison without parole or the death penalty.

Another significant change in the new code will affect the expected time served for virtually all sentences.

Previously, an Indiana inmate received two days credit for each day served, resulting in 25 years of incarceration for someone given a 50-year prison sentence, for instance.

Under the new structure, offenders must serve 75 percent of a sentence, so a person sentenced to 50 years, must serve 37.5 years before becoming eligible for release. The time-served alteration excludes level 6 felonies.

“I, certainly, like a lot of what is in the new code. I like that offenders must serve a lot more of their executed sentence than in the past. I have always thought only doing 50 percent of your sentence was ridiculous,” Mull said. “I don’t believe there is very much merit to this idea of sending people for a certain term of years then automatically cutting time off of that at get go.”

Mull also takes issues with the new leniency toward theft charges.

He said thefts involving property valued at less than $750 will now be classified as misdemeanors.

“I like the discretion that we had to decide whether if a specific theft needed to be charged as a conversion misdemeanor or a felony theft, that is a discretion that we had under the old code that we don’t anymore,” he said. “Some items that citizens own have a lot of sentimental value, they have a lot of personal value to those people and sometimes the offenders know that.”

People can become frustrated to have property stolen and see the offender only face a misdemeanor charge, Mull said.

“We were able to, in my opinion, better protect the community by levying that theft charge in appropriate situations, but that has been taken out of our hands now,” he said.

Henderson said the criminal code revision minimized duplicity and made it more efficient and less bloated.

“There are some good things in the overhaul, but overall it is not an improvement. It didn’t accomplishment what I had hoped it would accomplish,” he said. “Albeit, there needed to be some balancing in the penalty phases of the state, I think, overall, it does not improve public safety.”

He said under the former code, when a person convicted of felony who had previously been convicted of another, unrelated felony, he or she would be required to serve a sentence in the Indiana Department of Correction.

“Now, that sentence can be fully suspended to probation,” Henderson said. “I don’t think that is an improvement.”

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