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Friday, May 23, 2014

Ind. Courts - What’s Unfortunately Missing in the Now-National Rape Sentence Story: A Sentencing Order

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

The headline almost writes itself: "Home Detention for Rapist." Like many, I was surprised when the story broke last week. I’m not surprised it has continued. I’m disappointed, though, that the whole story is not being told. We are given bits and pieces from some of the people involved, but we don’t have access to the audio or transcript of the sentencing hearing. Orders detailing the judge’s reasons for imposing sentence are not prepared in Marion County, unlike the rest of the state.

The Court File

So, imagine that you're an interested member of the public (or a reporter who was not able to attend the sentencing hearing). You wonder why Marion County Criminal Court 1, Judge Kurt Eisgruber. gave a sentence of home detention to a man convicted of rape and other sex crimes. You stop by the office to look at the court file. Here's what you'll find.*

It’s a quick and somewhat cryptic read. You can see the crimes for which the defendant was convicted and the length of the sentence. The few additional comments, translated into normal-person-speak:

That’s right. That’s it. If you’re wondering why home detention instead of prison (or probation, which is an option for a first-time offender convicted of B felony rape), you’re not going to find the answer anywhere in the court file.

No Sentencing Order

Marion County is unique in this regard. Judges in most, if not all, of the other 91 counties issue a sentencing order shortly after imposing sentence. The order, which recaps much of what has been said in court in imposing sentence, highlights the aggravating and mitigating factors the judge considered and the reasons for imposing the specific sentence.

Although the oral statement in the courtroom is very important to those in attendance, few people are there, and the written sentencing orders prepared elsewhere in Indiana go a long way in fostering public understanding of the process and sentence in a specific case.

As the Indiana Supreme Court has noted in several cases [emphasis added]:

An attempt by the sentencing judge to articulate his [or her] reasons for a sentence in each case should in itself contribute significantly to the rationality and consistency of sentences. A statement by the sentencing judge explaining the reasons for commitment can help both the defendant and the public understand why a particular sentence was imposed. An acceptance of the sentence by the defendant without bitterness is an important ingredient in rehabilitation, and acceptance by the public will foster confidence in the criminal justice system.

A statement of reasons is especially important in cases resolved by trial, after which the judge has broad sentencing discretion. The statement is much less important in guilty plea cases that offer the court little or no discretion in imposing sentence.

The Indiana Supreme Court has recognized the “very high volume” of criminal cases in Marion County in seemingly exempting it from the requirement of a written judgment of conviction and sentence. Drafting a sentencing order, though, is time well-spent, especially in a case like this one.

Audio of the Hearing?

Can the public listen to the audio of the sentencing hearing? Possibly —- but barring some special permission from the Indiana Supreme Court, you can’t share it and we can’t post it here. A 2012 informal opinion from the Indiana Public Access Counselor concluded:

The [Indiana Supreme Court’s Public Access to Court Records] Handbook provides that creating a copy of the audio record is probably the most efficient and least time consuming method to provide public access. The court reporter indicated that a copy of the hearing existed on hard drive and CD. If the Court is able to make a copy of the CD, the recording is not declared confidential, and providing the recording complies with the Court’s management of its audio recording pursuant to AR 9(D)(4) and Indiana Judicial Conduct Rule 2.17, it may do so. The Court may also issue in conjunction with providing a copy of the CD an order specifically limiting its use and barring the recipient from broadcasting the received record in any manner. The Court would further be allowed to charge you a fee pursuant to IC 5-14-3-8.
Don’t Attack the Judge

To those attacking Judge Eisgruber and calling him all sorts of names, please stop. You are certainly free to disagree with the sentence and criticize the decision he made. The Indiana Supreme Court has explained, though, that there is “no right answer as to the proper sentence in any given case.”

Moreover, this is nothing close to a minimum sentence. A first-time offender convicted of B felony rape faces a sentence range of six to twenty years with an advisory sentence of ten years. No prison time is required; no home detention time is required. The judge could have imposed a six-year suspended sentence under the governing statute. Instead he imposed the advisory sentence on each count and even ran two of those consecutively —- for a sentence of twenty years -— with eight of those served on home detention and the remaining twelve suspended.

What does this mean? If Mr. Wise violates any of the many conditions of home detention or probation, he may well end up serving something close to the twenty years (less good time credit) in prison.
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* Because I know some judges will be reading this, I include here a pet peeve (shared by the ILB). When someone requests to see a public document (like the court file in the Wise case), please train your staff to simply hand it over. If the person requesting it looks shady or sinister and likely to take something from it, your staff can keep an eye on them. But court staff should not ask the individual to identify himself or herself or ask, “Who are you with?” It doesn’t matter. It’s a public document. Anyone can see it for any reason. (Oh, and by the way, I don’t think I look shady or sinister?)

Posted by Marcia Oddi on May 23, 2014 01:49 PM
Posted to Schumm - Commentary