Criminal code reform review: Low-level felonies soar, jails feel brunt

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Dave Stafford for www.theindianalawyer.com

The number of people serving time in local jails instead of the Department of Correction on low-level felony convictions rose 177 percent in the two years since Indiana’s criminal code reform took effect, and 28 percent more were people convicted of the new Level 6 felony compared to the prior Class D felony.

Those were among the findings presented Wednesday to the General Assembly’s interim Committee on Corrections and Criminal Code by Dave Williams, project manager for court technology for the Indiana Supreme Court.

The code reform in House Enrolled Act 1006 that took effect in July 2015 converted Class D felonies and some Class C felony drug and property crimes into a new Level 6 felony category. Williams said the result has been more people convicted of Level 6 felonies, but fewer serving significant sentences. The average sentence for low-level felonies declined 31 percent in July 2017 compared with June 2014.

“In March 2014, the most common D felony sentence was straight to DOC,” Williams told the committee. “In December 2016 (for convictions of a Level 6 felony), that sentence had fallen to the fifth most common.” Judges instead most commonly sentenced Level 6 felony offenders to community corrections, probation, or to time executed in the county jail.

The committee in its statutory review of the implementation of criminal code reform heard varying views about whether the reforms have been positive, but most agreed that local jails are feeling the brunt of housing offenders who previously would have been sentenced to DOC.

Williams told the committee that jails are reimbursed $35 a day per inmate by the DOC. The DOC receives $55 a day per inmate it houses. But that’s not the only way jails are shorted under the current system. Jails aren’t reimbursed for people held pretrial — an amount Williams said worked out to $43 million last year at the $35 daily rate.

Vanderburgh County Prosecutor Nicholas Hermann said many local jails are bursting at the seams, and more than 30 counties in Indiana are studying or have plans to enlarge their jails. He also noted that as with pretrial detainees, counties receive no funding from the state for offenders who are placed on probation or in community corrections. Nevertheless, these programs still bear costs paid by local taxpayers.

Hermann also linked criminal code reform with a rise in felony charges, noting that after they declined statewide in 2014, they are on pace in 2017 to be the highest this decade. Meanwhile, he said law enforcement in many cases is reluctant to charge misdemeanors, and probation departments are reluctant in some cases to report violations because jails lack space to house them.

As a result, he said consequences for failing drug screens or not following through with treatment are reduced. “In my community, people are not likely to get rearrested for violating until their fifth or sixth violation,” Hermann said. “Our ability to provide that negative incentive has gone away.”
He said lower penalties for lower-level offenses may have encouraged offenders to “level up” from theft to burglary to robbery, for example. “Crime rates are up, CHINS cases are up, overdose rates are going up,” Hermann said. “We’re not winning,” he said. “And I don’t mean prosecutors, I mean the people of Indiana.”

But Indiana Public Defender Council Executive Director Larry Landis said it’s too early to draw conclusions about code reform. Having been enacted in July 2015, impact on sentencing and crime would not have been known for many months, or perhaps as long as a year later. He said there was no evidence linking code reform to a rise in crime, calling such assertions “misleading at best.”

“One thing we know for sure is we have an opioid crisis, we have a heroin crisis. Neither of them were caused by (criminal code reform),” he said. Landis also noted prosecutors in most cases have more say than judges over sentences in plea agreements, which is the way most low-level felony cases are resolved.

Landis said jail crowding was in many cases due to too many people being held pending trial, largely because they can’t afford bail. He encouraged lawmakers to back evidence-based bail reform, and bemoaned that just 11 counties are participating in a pilot project.“Every county should be doing bail reform,” he said, noting similar efforts are gaining steam nationally. “We’re not going to be immune to the bail-reform movement that’s going on.”

Landis and several lawmakers agreed with the need to better treat offenders with substance abuse and mental health issues. “The issue is, we don’t have an appropriate place for them, so we put them in jail.”

The committee will meet again on Sept. 19.

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