Criminal code reform packs jails with Level 6 felony inmates

Nearly half the people housed in Indiana jails were there on a low-level felony charge, and in some counties, this population by itself exceeded the capacity of local jails.

Statewide, 45 percent of people housed in local jails were those charged or convicted of Level 6 felonies — typically drug or property crimes, said Lisa Thompson of the Indiana Supreme Court Office of Judicial Administration’s court technology department. She shared the information Sept. 6 with the General Assembly’s Interim Committee on Corrections and Criminal Code.

Of the Level 6 felony population in local jails, 52 percent were detained pretrial. “A few of the counties are above their (jail) capacity exclusively because of their pretrial population,” Thompson said.

Meanwhile, while much has been made of the shift of inmates convicted of Level 6 felonies from the Department of Correction to local jails, those offenders accounted for just 10 percent of total jail population statewide in July, Thompson said.

The committee has more meetings scheduled for Oct. 3 and Oct. 24 as it measures the impacts of criminal code reform adopted in House Enrolled Act 1006 in 2015. The legislation reclassified nonviolent former Class D felony charges and some Class C felonies as Level 6 felonies and aimed to keep these low-level offenders in their communities and out of the Department of Correction.

Jane Siegel, executive director of the Indiana Office of Court Services and chair of the Justice Reinvestment Advisory Council, reminded the committee at the outset of its first hearing that the flow of low-level offenders out of the DOC wasn’t the purpose of HEA 1006. “It was about looking at how we supervise offenders at the local level and about providing treatment to those offenders at the local level in order to reduce reoffending,” she said.

Lawmakers got a statistical overview of the impact of criminal code reform as they seek to measure savings the Department of Correction has realized, look into jail overcrowding and assess the availability of treatment options for low-level offenders.

The number of inmates serving time in local jails instead of the DOC on low-level felony convictions rose 177 percent in the two years since Indiana’s criminal code reform took effect. Additionally, 28 percent more people were convicted of the new Level 6 felony compared to the prior Class D felony, Dave Williams, project manager for court technology for the Indiana Supreme Court, told the committee.

While more people were convicted of Level 6 felonies, fewer received significant sentences. The average sentence for low-level felonies declined 31 percent in July 2017 compared with June 2014.

“In March 2014, the most common D felony sentence was straight to DOC,” Williams told the committee. “In December 2016 (for convictions of a Level 6 felony), that sentence had fallen to the fifth most common.” Judges instead more commonly sentenced Level 6 felony offenders to community corrections, probation, or to time executed or served in the county jail.

The committee heard varying views about whether the reforms have been positive, but most agreed that local jails are feeling the brunt of housing offenders who previously would have been sentenced to DOC.

Jails are reimbursed $35 a day per inmate by the DOC. The DOC receives $55 a day per inmate it houses. But that’s not the only way jails are shorted under the current system. Jails aren’t reimbursed for people held pretrial — an amount Williams said worked out to $43 million last year at the $35 daily rate.

Meanwhile, DOC legislative director Jon Ferguson told the panel that while the DOC population has declined in recent years as fewer people are being sent to state prisons, inmates are staying longer and DOC is projected to be at capacity by 2020. Code reform increased time served on executed sentences from about 2.6 years to a current average of about 4.7 years.

Vanderburgh County Prosecutor Nicholas Hermann told the panel many local jails are bursting at the seams, and more than 30 counties in Indiana are studying or have plans to enlarge their jails. He also noted that as with pretrial detainees, counties receive no funding from the state for offenders who are placed on probation or in community corrections. Nevertheless, these programs still bear costs paid by local taxpayers.

Hermann also linked criminal code reform with a rise in felony charges, noting that after they declined statewide in 2014, they are on pace in 2017 to be the highest this decade. Meanwhile, he said law enforcement in many cases is reluctant to charge misdemeanors, and probation departments are reluctant in some cases to report violations because jails lack space to house them.

As a result, he said consequences for failing drug screens or not following through with treatment are reduced. “In my community, people are not likely to get rearrested for violating until their fifth or sixth violation,” Hermann said. “Our ability to provide that negative incentive has gone away.”

He said lower penalties for lower-level offenses may have encouraged offenders to “level up” from theft to burglary to robbery, for example. “Crime rates are up, CHINS cases are up, overdose rates are going up,” Hermann said. “We’re not winning,” he said. “And I don’t mean prosecutors, I mean the people of Indiana.”

But Indiana Public Defender Council Executive Director Larry Landis said it’s too early to draw conclusions about code reform. Having been enacted in July 2015, impact on sentencing and crime would not have been known for many months, or perhaps as long as a year later. He said there was no evidence linking code reform to a rise in crime, calling such assertions “misleading at best.”

“One thing we know for sure is we have an opioid crisis, we have a heroin crisis. Neither of them were caused by (criminal code reform),” he said. Landis also noted prosecutors in most cases have more say than judges over sentences in plea agreements, which is the way most low-level felony cases are resolved.

Landis said jail crowding was in many cases due to too many people being held pending trial, largely because they can’t afford bail. He encouraged lawmakers to back evidence-based bail reform and bemoaned that just 11 counties are participating in a pilot project. “Every county should be doing bail reform,” he said, noting similar efforts are gaining steam nationally. “We’re not going to be immune to the bail-reform movement that’s going on.”

Landis and several lawmakers agreed with the need to better treat offenders with substance abuse and mental health issues. “The issue is, we don’t have an appropriate place for them, so we put them in jail.”•