INDIANAPOLIS — After the Madison County judge looked at Bruce A. Wilson’s pre-sentence report, he made a decision, based in part, the judge said, on Wilson’s “lack of remorse.”

So Wilson, busted with two ounces of marijuana tied up in three bags, $3,900 in cash and no prior felony convictions, was sentenced to three years in the Indiana Department of Correction for something that would have earned him a citation and a fine in Ohio.

Unfair? Not according to the Indiana Court of Appeals, which upheld the sentence.

Thus, Wilson became a statistic, one of the growing numbers of low-level felons in Indiana’s prison system, which grew by 41 percent between 2000 and 2009, a period that saw an almost perfectly corresponding drop in violent crime. Individuals like Wilson, convicted and sentenced on a Class D felony charge — the least severe of Indiana’s four felony grades — are the reason for that increase.

Systemic change

stalls at Statehouse

Those numbers were the impetus behind a sweeping sentence reform bill pushed by Indiana Gov. Mitch Daniels at the beginning of the 2011 legislative session. Concerned that rising prison costs were outpacing state revenues, Daniels saw reform as a way to curb some of $600 million spent operating Indiana prisons each year.

He pushed legislators to look for ways reduce the number of low-level felons going into state prisons and to expand and improve community corrections programs in the counties, programs designed to keep offenders like Wilson out of prison, considered by some to be a sort of academy for advancement in crime.

But the bill failed to gain traction with legislators wary of tampering with the status quo.

In announcing his priorities for the 2012 session that begins in January, Daniels left sentencing reform off the list, citing the lack of legislative will.

Some lawmakers believe that small pieces of the failed big bill can still be salvaged, but they’ve spent the past few months wrestling over how to get that done. Some are still not convinced of the basic premise, that there are people behind bars who don’t belong there.

“I don’t think we have any Jean Valjeans out there,” State Sen. Richard Bray, R-Martinsville, quipped as questions of harsh sentencing arose during a summer legislative study session he led.

But if there are no examples of Les Miserables’ fictional Valjean — sentenced to 10 years for stealing a loaf of bread — in Indiana’s prisons, there may be quite a few Bruce Wilsons.

Technically, the maximum sentence in Indiana for stealing a loaf of bread would be three years, as that is the maximum sentence for a Class D felony.

The fact that theft — no matter how small — is charged as a felony in Indiana was among the first topics raised this summer in the Criminal Code Commission that Bray chairs. Most members supported the idea of establishing graduated theft charges, and putting new limits on a prosecutor’s discretion to charge petty theft as a felony. But there weren’t enough votes to recommend it go into a bill for the 2012 session.

As the debate has evolved, the lack of sentencing statistics on low-level DOC prisoners — including the role played by judges and prosecutors — has become one clear area where the Indiana Prosecuting Attorneys Council and the reform proponents agree, research and discussion is needed.

Where they’ve disagreed, sometimes vehemently, and sometimes simply because not much is quantitatively known on the subject, is on how much latitude judges and prosecutors should have on the fate of an offender like Wilson.

The comprehensive reform bill of state sentencing and criminal laws backed by Daniels last session died after heavy criticism from the county prosecutors’ council, which came out especially hard against the bill’s attempts to lower the weight threshold for a drug dealing charge.

Legislators backing the reforms, like state Rep. Ralph Foley, R-Martinsville, spent months after the bill’s defeat looking for ways to break it into more palatable pieces. A bill he’s filed for the 2012 session would boost funding for probation and drug-treatment programs with the intent of reducing the number of low-level felons in the state prisons. “I’m pushing on because it’s the right thing to do,” Foley said.

In early December, Foley announced he won’t be running for re-election next year. So going into what will be his last legislative session, he’ll keep questioning why Indiana has more than 27,000 individuals incarcerated in state prisons.

“Our problems … I don’t know they’re being solved by delay. I think they’re being exacerbated by delay,” Foley said.

Reform supporter Larry Landis, who heads the Indiana Public Defenders Council agrees. “There are more prisoners coming into the system every year,” he said. “If we do nothing, that’s not going to stop.”

State officials want to reduce the costs associated with the Indiana Department of Correction. The problem, as seen by DOC officials and reform advocates is that the state’s prisons have become a revolving door for petty criminals.



Data helps

to frame debate

Offenders with Class D felony convictions comprise some 55 percent of individuals going into the system, and offenders serving one year or less comprise more than 65 percent of the individuals released back into society each year, according to DOC statistics.

The U.S. Department of Justice says the revolving door has accelerated. Eleven years ago, fewer than half of Indiana’s prison releases were being turned loose after serving a year or less.

And the chances someone convicted of a Class D felony — an offense with a maximum sentence of three years — will serve more than a year in the DOC are slim. State law affords offenders one day of “good time credit” for each day served, so sentences are effectively cut in half.

By the time an offender gets to prison, he or she also often has picked up numerous days of credit from time served in a county jail while awaiting trial.

For close to a decade, the national trend was to lock up violent criminals. The number of sentenced prisoners convicted of violent crimes (murder, manslaughter, rape, etc.) grew by 60 percent between 2000 and 2008.

In Indiana, that trend seems to have been turned on its head.

Increasingly, the prisons are seeing greater and greater numbers of non-violent, short-term offenders, convicted of Class D felony crimes like theft.

New admissions to Indiana prisons were only slightly above the state’s rate of population increase from 2005 to 2010, but the number of new inmates serving sentences for theft as a Class D felony grew by 31 percent over the same period. Prosecutors, though, have used some of the same statistics to make their own points.

The ongoing debate is framed by data coming from the state’s Justice Reinvestment Initiative, a bipartisan initiative started in late 2010 by Daniels, legislative leaders, and Indiana Attorney General Greg Zoeller. They asked the non-profit Pew Center on the States for help.

They wanted Pew to help Indiana reduce prison costs but do it in a way that would protect public safety. The most contentious part of the Pew study was the statement that without reforms, Indiana’s prison population will grow by an additional 21 percent between 2010 and 2017.

The prosecutors council’s leaders flatly rejected that conclusion, noting that in the past two years, Indiana’s prison population has basically flatlined. The Pew study’s decision to use the 2000 to 2009 time frame, council leaders argue, was calculated to create the greatest percentage increase.

“If the economy were booming and the revenues were flowing in, we probably wouldn’t be having this conversation,” said David Powell, director of the prosecuting attorneys council.

“Crime is down as a result of the last two or three decades of prosecutors getting better at their jobs, and maybe because prisons were built and expanded,” Powell said. “Now, the reaction is, ‘We’re safe, so let’s let off on the rein a little bit.’”



Road to reform

a bumpy path

This summer, Rep. Foley tried to renew interest in a system of incentives and disincentives, designed to encourage certain counties from sending disproportionate numbers of Class D felons to state prison.

The measure was to be one of the cornerstones of the failed comprehensive reform bill.

Immediately, the Indiana Sheriffs Association put out an alert to its members, suggesting legislators were getting ready to remand all Class D offenders back to the county jails.

Howard County Sheriff Steve Rogers also immediately reported “a situation” to the Howard County commissioners, telling them more than 50 inmates could be returning to the already crowded county jail in Kokomo.

Sheriffs association spokesman Steve Luce said he didn’t mention the multiple promises, by Foley, that the Legislature wouldn’t create a new unfunded mandate for counties.

“You really don’t know, so you want people to be prepared for a worst-case scenario,” Luce said.

Foley has since pulled back on the proposal. “That kind of misinformation campaign has been really frustrating to me,” Foley said.

Many other voices are coming out in the debate, including IUPUI law professor Joel Schumm, who argued Wilson’s case in front of the Indiana Court of Appeals.

Schumm predicts sentencing reform will be stalled as long as Indiana judges refuse to give up their discretion of where to send Class D felons, and he claims that’s costing the state money.

“Essentially, (the) state has given judges a credit card with no limit and no payment due date,” he said.

Larry Landis, of the public defenders council, said reform efforts also need focus on the 40 percent of Class A and Class B felons imprisoned for drug offenses. His concern is whether any reforms will result in more substance abuse and mental health treatment being made available to offenders. If not, it becomes an exercise in cost-shifting to the counties, he said.

“If you’re going to push people from DOC to county jails, you’re going to have problems if you don’t provide funding for substance abuse and mental health treatment,” Landis said. “If you don’t have money for treatment, everything is undermined.”





Scott Smith is a reporter with the Kokomo Tribune, a CNHI newspaper. He can be reached at Scott.Smith@kokomotribune.com