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Thursday, August 11, 2011

Ind. Law - "Why do drug charges carry bigger sentences than killing? For the answer, ask your legislator"

Efforts at sentencing reform in Indiana died in the last session. Eric Bradner of the Evansville Courier & Press reported on July 10 on efforts to try a new approach this year. From his long story:

Perhaps the most controversial piece of the sentencing reform puzzle is related to drug crimes.

Daniels, Bray and others have argued that community-based options might better suit those convicted of what are considered low-level drug crimes than incarceration does.

"If you could just get the kingpins, the drug cartel leaders and all of that, I would think life without parole would be a minimum," Bray said.

On the other hand, he said, "maybe 10 years is excessive for a kid who hasn't been in trouble and has done something stupid, or perhaps someone who is an addict trying to sell pot for a little cash. I'm not necessarily agreeing with that person, but maybe they're not the people we should fill our prisons with."

Finding a way to convince a majority of legislators that these arguments have merit, Daniels has argued, is urgent. Indiana's Department of Correction runs prison that are at nearly full capacity, which means without changes to the law, the only options that exist are building new prisons or releasing inmates earlier.

Also important, though, is convincing county prosecutors – and the Indiana Prosecuting Attorneys' Council, which lobbies for them – that such changes won't amount to a "soft on crime" approach that undermines local efforts.

Vanderburgh County Prosecutor Nicholas Hermann has resisted the proposed sentencing overhaul.Hermann said he is particularly concerned by the notion of dropping sentences for drug crimes – especially those involving methamphetamine.

"In Vanderburgh County, we led the state in meth lab seizures last year, and we're on pace to break our record from last year this year," he said.

"If you reduce the penalties, you're going to get more of it. That's what common sense would dictate."

Meth crimes, he said, can be destructive in ways that go well beyond what comes with most drug use.

"I've been in these homes and seen the kids' toys, the baby cradles. It's moved beyond a drug and a drug addiction to, you have someone basically making a bomb in a residential neighborhood," he said.

Other parts of Bradner's long story were reported in this July 11th ILB entry.

Today Justin Leighty of the Elkhart Truth gives an in-depth look at sentencing disparities in Indiana with respect to drug and other cases. Here is what he writes:
GOSHEN - Monday's sentencing of Yvonne Addington once again raised questions that often come up when someone is convicted of a crime that involves someone's death but receives a sentence lighter than some drug cases. Here's a look at some of those questions and their answers.

Q: Why did Yvonne Addington only get four years, and only face eight, when she killed Alan Hess last March?

A: Addington reached a plea deal with Kristine Osterday, deputy prosecutor. Addington admitted to leaving the scene of a deadly crash and Osterday agreed to drop a second charge of failing to report a deadly accident. Even though the second charge carried the same weight, up to eight years in prison, the sentences may not have been eligible to be served back-to-back, meaning she might've only faced eight years even under both charges. The Elkhart County Prosecutor's office didn't respond to multiple requests for information on the case this week.

Judges have to weigh aggravating and mitigating factors when they sentence someone. According to the Indiana appellate courts, maximum sentences are reserved for "the worst of the worst." Judge Stephen Bowers laid out aggravating factors and mitigating factors to craft a sentence of two years in prison, two in Elkhart County Community Corrections and two years on probation.

Bowers noted, though, that if Addington stuck around after the crash and was found to have been intoxicated, she would've faced a more serious level of crime, which could've carried up to 20 years in prison.

Q: If she admitted to drinking at the time of the crash, why didn't she get a more serious charge?

A: "Without a BAC (blood/breath-alcohol-content) test, the State would need to prove intoxication," said Joel Schumm, a professor at Indiana University Law School in Indianapolis. "Her admission could probably be used against her," but only if it came before the guilty plea. "The offense would become a B felony, though only if she had a prior in the last five years or license restriction," said Schumm in an e-mail.

Q: Isn't killing someone the worst thing you can do under the law? Why do drug dealers get longer sentences?

A: "Criminal penalties are a legislative decision, and they sometimes do not seem proportional to the harm caused," said Schumm. "Property crimes and drug offenses are often punished more severely than crimes that involve serious injury or even death to people.

"Just about every year the General Assembly enhances the penalty for one or more crimes, sometimes in response to a specific case where the penalty seemed too low. This comes at a cost, though. The Pew Center study last year was crafted into a legislative proposal (SB 561 - last year's sentencing law reform bill) to make theft and drug offenses more graduated. The proponents of the legislation thought we were putting too many non-violent people in prison for too long, which costs a lot of money and will require new prisons if it continues. It did not pass because of very vocal opposition by prosecutors," Schumm said.

"The C felony penalty (2-8 years) for failure to stop is similar to the C felony penalty for involuntary manslaughter, reckless homicide," or operating a vehicle while intoxicated "causing death (if the person does not have a prior and is under 0.15 BAC - either of which make it a B felony). A person is dead in all those offenses, but the defendant is thought to be less culpable than in a murder (an intentional killing - 45 to 65 years) or voluntary manslaughter (an intentional killing under sudden heat - 20 to 50 years if a weapon is used).

"A person who forges a check for $10 can similarly be charged with a C felony, and a person who has three grams of cocaine within 1,000 feet of a school can be charged with an A felony (20-50 years)," Schumm pointed out.

"People upset about the penalties for this or any offense should contact their legislators. They are the only people who can alter the penalty ranges. Increasing the penalties for this or other crimes, though, means more government spending for prisons. It also means that a person who could be working and paying taxes is instead sitting in a prison cell costing taxpayers about $20,000/year."

Posted by Marcia Oddi on August 11, 2011 02:43 PM
Posted to Indiana Law