CRIMINAL CODE REVISION BILL H.B. 1006, 2013 Background: Criminal Code Evaluation Commission (CCEC) established by HEA 1001, 2009 Purpose: evaluating the criminal laws of Indiana Final Report: November 2012 Process: Work Group of attorneys representing prosecutors, defense, judiciary, as well as independent attorneys with criminal justice background, spent well over 1,000 hours analyzing the 1977 Indiana Criminal Code, as amended, and made specific recommendations to CCEC, which adopted a comprehensive Preliminary Draft on October 31, 2012 which has now been filed as H.B. 1006. Focus: o Felony offenses only, except in cases where some level of the offense is a misdemeanor o Title 35 only, at this point (Titles 7 and 9 to be recommended to Legislative Council for summer 2013 study committee for review) Effective date: July 1, 2014 (allowing an additional year for review and further amendment as necessary) Operational Principles Undergirding CCEC Process Proportionality of penalties Like sentences for like crimes Consistency Increased certainty regarding length of sentence to be served Streamlining (including repeal of duplicative statutes) Preserving prison space for the most serious offenders while finding more effective community supervision for less dangerous offenders Sentencing Scheme: Proposed Changes CCEC bill maintains Murder as its own category, as under current law. Bill expands current 4 felony levels (Class A-D) to 6 levels (Level 1-6). o Current Class A felonies divided into Levels 1, 2 o Current Class B felonies divided into Levels 3, 4 o Current Class C felonies generally equivalent to proposed Level 5 o Current Class D felonies generally equivalent to proposed Level 6 All existing felonies in Title 35 examined for proportional placement on Level 1-6 spectrum. Penalty ranges (number of years) within new Levels are not addressed in H.B. 1006 as introduced; will be addressed in comprehensive amendment in Committee. Misdemeanor classifications and penalty ranges remain unchanged (Class A-C).
Credit time: See page 8 of this document for proposed changes to current credit time allowances. Significant Proposed Substantive Changes from 1977 Code A. Crimes Against the Person 1. Penalties for Sex Offenses: Proposal includes several penalty increases a. Rape/Criminal Deviate Conduct: (1) Currently Class B felony, or Class A for use of weapon, deadly force, etc. (2) Proposal: Level 2 (high Class B range) for basic offense; Level 1 (high Class A range) for use of weapon, deadly force, etc. b. Child Solicitation: (1) Currently Class D felony unless computer is used; then a Class C. (2) Proposal: Make all Child Solicitation a Level 5 felony (equivalent of Class C). c. Child Seduction: propose increased penalty if intercourse occurs. d. Sexual Battery: (1) Currently no higher than Class C felony. (2) Proposal: increase penalty to higher level (Level 4, equivalent to today s Class B felony) for use of deadly force, deadly weapon, etc. e. Sexual Misconduct with a Minor (intercourse): (1) Currently ranges from Class C to Class A felony. (2) Proposal: Increase penalty to the highest level (Level 1) for intercourse with a child age 14-15 including use of a deadly weapon or deadly force, or causing serious bodily injury. f. Sexual Misconduct with a Minor (fondling): (1) Currently no higher than Class B felony. (2) Proposal: Increase penalty to Level 2 (equivalent of Class A felony) for fondling a child while using a deadly weapon, deadly force, or causing serious bodily injury. 2. Robbery (IC 35-42-5-1) and Carjacking (IC 35-42-5-2) Proposal: Keep proportionality of ascending levels of seriousness. Proposal: Repeal the Carjacking statute (included in definition of Robbery). 2
B. Crimes Against Property 1. Arson (IC 35-43-1-1): Proposal: Amend law to permit separate counts for multiple victims. (Current case law permits only one count of arson regardless of the number of victims in a single fire, based on the current wording of the statute.) 2. Computer Tampering (IC 35-43-1-4): Proposal: Modernize statute, using significant portions of Florida statute. a. Treat malicious hackers more seriously than adventure seekers. b. Adopt more modern approach based on contemporary technology. 3. Burglary (IC 35-43-2-1): a. Proposal: Amend to include breaking and entering coupled with the commission of a felony after entering, regardless of prior intent to commit a felony. b. Proposal: Amend to include intention to commit theft or a felony (see Theft statute, below). c. Proposal: As under original 1977 law, punish burglary of dwelling more severely than burglary of any other structure (based on expectation of safety and protection in a person s residence). d. Proposal: Clarify statute: same penalty should apply regardless of whether structure is occupied at the time of the burglary. d. Proposal: Outcome (e.g., bodily injury) should increase the penalty proportionally to severity of outcome. e. Proposal: Increase penalty to the highest level (Level 1 felony) the burglary of a dwelling causing serious bodily injury (Note: burglary resulting in death falls under the Felony-Murder statute). 4. Theft/Receiving Stolen Property (IC 35-43-4-2): Proposal: Create a dollar threshold of $750 for felony theft (Level 6) and reduce threshold to $50,000 for Level 5 a. Current Indiana law: 1. All theft is a felony (Class D). 2. The alternative charge of (misdemeanor) conversion is available at the discretion of prosecutors. b. Other States laws: 1. Every state in the U.S. except Indiana has a dollar threshold for felony theft (i.e., theft of an amount less than the threshold is a misdemeanor). 3
2. As of 2010, the dollar thresholds in other states ranged from $200 to $2,500. Some have increased since then, but as of 2010: (1) Average threshold: $808 (2) Mid-point: $900 (3) Most frequent: 15 at $500 15 at $1,000 c. Proposals: Create threshold of $750 for felony theft charge (theft of any amount less than $750 would be a misdemeanor). Measure value using fair market value; also, retain existing statute allowing use of retail price tag on a commercial item to ascertain value. Reduce threshold for Level 5 penalty to $50,000 from $100,000. Give prosecutors the option of aggregating multiple thefts to reach dollar threshold. Amend burglary and arrest statutes to preserve the ability of police to arrest and prosecutors to charge based on the proposed changes. Repeal receiving stolen property portion of statute (redundant; included in definition of Theft). Maintain Auto Theft and Receiving Stolen Auto Parts as a Level 6 felony in all cases despite dollar value, and one step higher (Level 5) upon second conviction, due to the threat posed by car theft rings and a recognition that most stolen cars have a value of at least $750. Check deception (currently a misdemeanor, increased to Class D felony if amount at least $2,500 and property acquired was motor vehicle) would track Theft (misdemeanor up to $750; Level 6 felony up to $50,000; then Level 5; and multiple checks could be aggregated at option of prosecutor). 5. Forgery/Counterfeiting (IC 35-43-5-2): a. Under current law, both are Class C felonies. b. Proposal: Treat both as Level 6 felonies (equivalent of D felony) as they are similar to theft, and/or committed with the purpose of accomplishing a theft. 3. Welfare Fraud, other frauds (IC 35-43-5-7, 7.1, 7.2; IC 35-43-5-12): a. Proposal: Conform to theft penalties; all are a version of theft. b. Exception: Bank fraud (IC 35-43-5-8) would remain at same level as 1977 Code: Level 5 (equivalent of a Class C felony). C. Offenses Against Public Administration 1. Obstruction of Justice (IC 35-44.1-2-2) Proposal: Expand definition to include positive inducements (to withhold testimony, etc.) as well as threats. 4
2. Disarming an Officer (IC 35-44.1-3-2) Proposal: Expand language to punish injury or death to any officer in same way as injury or death to officer who was disarmed. D. Offenses Against Public Health, Order and Decency 1. Criminal Gang Activity (IC 35-45-9; IC 35-50-2-15) a. Proposal: Clarify definition of criminal gang activity: proof that criminal activity that promotes or furthers the interests of a gang, or is committed to increase the defendant s personal standing with a gang, is sufficient to demonstrate criminal gang activity. b. Proposal: Expand definitions of recruitment, intimidation. c. Proposal: Provide for sentencing enhancement with same definition of gang activity as under a., above. E. Penalties for Drug Offenses: 1. Cocaine, Methamphetamine and Related Drugs (IC 35-48) Proposal: Move from the current scheme to a more graduated sentencing scheme. (Under current scheme, an increase from under 3 grams to over 3 grams of cocaine or methamphetamine increases the penalty in many cases, including possession, to Class A felony) For further explanation, see document entitled, Penalties for Drug/Controlled Substance Offenses (part of CCEC Workgroup Report, distributed with this summary) and Level 1-6 sentencing proportionality chart adopted by the CCEC (distributed independently). 2. Penalties for Marijuana Dealing, Possession (IC 35-48): a. Proposal: Penalties for possession of marijuana would all be at the misdemeanor level, not exceeding a Class A Misdemeanor. b. Proposal: Penalties for dealing marijuana would remain proportional to what they are currently. c. See document entitled, Penalties for Drug/Controlled Substance Offenses (part of CCEC Workgroup Report, distributed with this summary) and marijuana sentencing proportionality chart (also distributed with this summary). 3. General Provisions Relating to Penalty Enhancement: Protected Zone Distance and Types of Qualifying Zones: (1) Many drug offenses are enhanced under current law to a higher level if the offense was committed within 1,000 feet of various types of locations, including child care facilities. 5
F. Sentencing Issues (2) Proposal: The Criminal Code Evaluation Commission adopted an amendment to reduce that distance to 500 feet, and to limit the types of property to schools and parks, under circumstances when a child under age 18 would reasonably be expected to be present. (3) Proposal: Additional enhancing circumstances would continue to exist as under current law, including: (1) Delivering or financing the delivery of a drug to a child under age 18 and at least 3 years junior to the offender (2) Commission of the offense while in possession of a firearm (3) Commission of the offense on a school bus (4) Commission of the offense by a person with a prior conviction for dealing in any drug other than marijuana, hashish, hash oil, salvia divinorum, or a synthetic drug (5) Commission of the offense by a person who manufactured or financed the manufacture of the drug 1. Suspendibility of Lower Level Sentences: Current law, as enacted in the 1977 Criminal Code, required that the sentence be nonsuspendible (court must sentence to at least the minimum prison term) for any felony if the defendant was previously convicted of any felony. See IC 35-50-2-2. a. This means, e.g., that a person convicted of theft and sentenced as a Class D felon under current law, who has been previously convicted of any felony, including a minor theft, must serve at least the minimum sentence for the new D felony conviction in custody. b. Current law limits the applicable time period between convictions in the case of a prior Class C felony conviction (< 7 years since discharge) and prior Class D felony conviction (< 3 years since discharge). c. Proposals: o The sentencing Court should have full discretion to suspend the sentence and put a Class D (Level 6) felon on probation with conditions if the Court deems that appropriate, even if he has one or more prior felony convictions. o Similarly, the existence of a prior Class D or Level 6 felony conviction alone should not mandate the sentencing Court to impose an executed sentence in the case of any other felony. o Other statutory requirements for nonsuspendibility based on other factors are not affected by this provision. d. Theory: Community supervision in the case of low-level felonies, using evidence-based practices such as swift and certain sanctions, can be and usually is more effective than prison time. The court should have that option in sentencing where appropriate. 6
2. Suspendibility of Sentences for Higher Level Offenses: a. The CCEC adopted a proposal that the following be added to the list of intrinsically non-suspendible sentences (see IC 35-50-2-2): Attempted Murder Conspiracy to Commit Murder Voluntary Manslaughter Neglect of a Dependent as a Level 1 felony (resulting in the death of a person under age 14) b. The CCEC adopted a proposal that the following be deleted from the list of intrinsically nonsuspendible offenses in IC 35-50-2-2: Battery with a Deadly Weapon o Rationale: The offense can be charged as Aggravated Battery (which is nonsuspendible) if serious bodily injury occurs. Sexual Battery with a Deadly Weapon o Rationale: If the act involves Rape or Criminal Deviate Conduct, it will be nonsuspendible. If it does not involve either of those, the court should have discretion based on the facts of the case. Child Molesting (fondling) but maintain Child Molesting involving intercourse as nonsuspendible. Drug dealing offenses currently listed as nonsuspendible (e.g., within a protected zone or while possessing a firearm). o Rationale: Other proposed changes in the drug penalties would result in a higher level penalty any time one of these was a factor in the case. c. The CCEC bill proposes that the following remain on the list of intrinsically nonsuspendible offenses: Habitual offender Additional penalty for use of a firearm in certain offenses Use (as opposed to possession) of a firearm in dealing a controlled substance All sentence enhancements listed by statute in IC 35-50-2 3. Habitual Offender: While the CCEC Work Group presented a proposal to revise the Habitual Offender statute (IC 35-50-2-8), the CCEC did not include the proposed change to the statute in H.B. 1006 as introduced. Individual legislators offered to work to improve the proposed language through additional collaboration with prosecutors and public defenders in the time preceding the 2013 session of the 7
Indiana General Assembly. It is anticipated that a proposed revision to the Habitual Offender statute will be presented in a comprehensive amendment in Committee. With that in mind, H.B. 1006 as introduced does propose repeal of the Habitual Substance Offender statute (IC 35-50-2-10) and the life without parole habitual statute (IC 35-50-2-8.5). G. Credit Time Issues 1. Good Time Credit : H.B. 1006, as introduced, does not include a recommendation with regard to good time, which is currently at 50% for those in Credit Class I (good behavior), stepping down to zero credit for those in Credit Class 3; other than to propose repeal of the credit restricted felon statute (which requires 5 days served for 1 day credit, or approximately 85% of sentence served, for certain specified crimes regardless of the inmate s behavior in prison). a. Rationale for repeal of credit restricted felon status: Given the increased sentence levels and lengths for certain offenses, and the higher sentence floors for the higher level offenses, those convicted of these specific offenses should receive sufficiently severe sentences that no artificial means should be necessary to achieve higher sentences. b. Certain legislators agreed to work with prosecutors and public defenders in the period prior to the 2013 session of the Indiana General Assembly on both the specific sentence lengths for each new level (Levels 1-6) and the percentage of credit that should be received for time served based on good behavior. This will be presented in Committee as part of a comprehensive amendment to the bill, and will further address the concerns that led to enactment of the credit restricted felon statute. 2. Programmatic Credit Time: Based on concerns expressed regarding the amount of sentence reduction an offender can receive for educational and programmatic credits, the Commission proposes to maintain the incentive for engaging in these programs while minimizing the ability of an inmate to manipulate the system and receive an undeserved or excessive reduction in his sentence. Proposed amendments in bill: Limit the amount of educational credit obtainable from any one degree to: o Not more than one year for completion of an associate s degree. o Not more than two years for completion of a bachelor s degree. o Not more than a total of one year for completion of one or more technical or vocational programs approved by DOC. Restrict the educational programs available to an inmate to those that the Department of Correction (DOC), in consultation with the Department of Workforce Development (DWD), believes likely to lead to gainful employment by enhancing the individual s skills. 8
Provide for only pro-rated credit for a degree based on the portion earned during the inmate s incarceration. Change the equation for applying educational and programmatic credits back to the 1977 Code method: subtracting credit from the full sentence imposed by the sentencing court, rather than after applying good time credit to that sentence, which is the practice today pursuant to legislation in recent years. KD_4766756_1.DOCX 9