Two Steps Forward, One Step Back in Indiana Sentencing 5/18/01

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The recently adjourned Indiana General Assembly showed increasing signs of drug war fatigue this year as it passed into law measures that will get nonviolent drug offenders out of prison faster and make them ineligible for enhanced sentences under the state's habitual offender law (known as "the bitch"). But in the same session, it succumbed to the spreading methamphetamine hysteria, passing a law that will heighten meth penalties to bring them in line with those for cocaine and "narcotics." Under Indiana law, trafficking in those drugs can bring a 20-year prison sentence.

For the first time, some persons convicted of drug dealing offenses will be able to avoid prison by serving home detention or work release sentences instead. Other drug offenders will be eligible for earlier releases under the state's already functioning Community Transition Program.

Rep. B. Patrick Bauer (D-South Bend) was a prime mover in the sentencing reforms. Bauer wrote the community release and habitual offender language and then inserted it into the state budget bill, which became law earlier this month. In an interview with the Fort Wayne Journal Gazette last week he sounded two themes: the cost of incarceration and the need to consider drug treatment.

"Many of these prisoners are drug offenders who are not dangerous to society. They are only dangerous to themselves," Bauer said. "We put them in prisons, which are known as schools of crime, they come out hardened and two out of three go back. We're trying to stem the tide of building prisons," he said. "It's a tax savings, but also perhaps we need to focus more on rehabilitation," Bauer added.

More than 3,600 of Indiana's 20,000 prisoners are doing time solely on drug charges, according to the Indiana Department of Corrections. Each costs the state between $25,000 and $30,000 annually to imprison. Indiana also holds 73 prisoners convicted only of drug offenses who have seen their sentences doubled under the state's habitual offender laws. Under the old laws, a person arrested for a felony charge could be charged as a habitual offender if he had two prior unrelated felony convictions. Possession of illegal drugs other than marijuana is a felony in Indiana. The new habitual offender law, however, does not allow prosecutors to bring the charge if the new offense is a drug offense, if the previous felonies were drug offenses, and no more than one of them was a drug distribution offense.

Allen County (Fort Wayne) Prosecutor Robert Gevers II told the Journal Gazette his office used "the bitch" as a bargaining tactic by promising defendants not to use it in return for a guilty plea. He bemoaned the loss of leverage.

"We may end up filing fewer habitual offender charges, and you won't see sentences as long as they could be," a glum Gevers told the Fort Wayne newspaper before going on a brief rant about a real drug war. "If in fact the country determined that we were truly going to wage a war on drugs -- as defined by a dictionary and not this piecemeal, half-hearted approach -- we would not be having this conversation. It would be over," Gevers declaimed.

Allen County Superior Court Judge Kenneth Scheibenberger provided the Journal Gazette with one example of the law's impact. He sentenced Fort Wayne resident Alvin White to 20 years in prison last year, and added another 20 under the habitual offender law. White's prior convictions were for cocaine possession. Under the new law, White would not have been eligible for the doubled sentence.

Scheibenberger also hailed the new provision allowing persons convicted of drug distribution to qualify for home detention or work release. He told the newspaper the law would allow him to make a distinction in sentencing between entrepreneurs and addicts.

Not all legislators were in accord. "I don't agree that someone should be able to bypass prison altogether dealing narcotics at this level," Sen. David Long (R-Fort Wayne) told the Indianapolis Star.

The legislature also provided for earlier release dates for drug offenders. Under the state's Community Transition Program, nonviolent offenders can be released into a supervised setting as the ends of their sentences draw near. Previously, prisoners had to be within 60 or 120 days of completing their sentences; now drug offenders need be only within six months. But the impact of this move will be limited. Release is not automatic, and according to the Journal Gazette, Allen County, in which judges have granted early release to only 15% of those eligible, has one of the state's highest participation rates.

But Indiana lawmakers also took a step backward with the passage of a new methamphetamine law. Under siege from law enforcement and a sensation-seeking mass media -- the Indianapolis Star editorialized in April about "bracing for a methamphetamine epidemic" -- the solons voted to heighten meth possession, manufacture, and distribution penalties to make them as tough as the state's penalties for heroin and cocaine. The bill also makes it a crime to transport or store the precursor chemicals used in meth's manufacture, and increases criminal penalties for the theft of anhydrous ammonia, widely used by farmers in fertilizers, but also widely used by amateur meth cooks.

Indiana's schizophrenic approach to drug policy this year was exemplified by the Indiana Prosecuting Attorneys Council, which lobbies lawmakers on crime issues. The group could not arrive at a consensus on the drug bills, Executive Director Steve Johnson told the Journal Gazette. The group had "a slew of opinions" but could not reach agreement, he said.

"There's a lot of consideration about the effectiveness of the laws. Everyone is trying to figure out the best way to handle this," Johnson said. "We are not waving the white flag. States all over the country are just examining the war on drugs."

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Issue #186, 5/18/01 Editorial: Supreme Fictions | Supreme Court to Medical Marijuana Movement: Drop Dead -- Movement to Feds: Get Real | Study Finds Seattle Drug Arrests Target Blacks, Suggests Decrim Dialogue, Police Chief Suggests Arresting More Whites | In US First, South Carolina Court Finds Drug-Using Woman Guilty of Murder in Death of Fetus | Colombian Coca and Poppy Production Up Last Year Despite Heightened Drug War, Market Crash Ahead? | Thugs Kill New York City Marijuana Retailer, Two Others, Police Blame Marijuana | DEA's Caribbean Office Lied About Arrests, GAO to Investigate | Two Steps Forward, One Step Back in Indiana Sentencing | Canadian Medical Association Journal Calls for Marijuana Decriminalization | Media and Resources: Arianna Huffington, Village Voice,,, U. Miami Law Review, CDC | The Reformer's Calendar
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