Pubdate: Sun, 13 May 2001
Source: Journal Gazette (IN)
Copyright: 2001 Journal Gazette
Author: Niki Kelly


INDIANAPOLIS - Non-violent drug offenders could spend less time behind bars 
as a result of several changes made to state sentencing laws by the General 
Assembly this session.

The shift in sentencing options is either a sign that lawmakers recognize a 
need for alternative punishments and treatment or that legislators are 
looking to free up space - and money - in the expanding Department of 

For the first time ever, some drug dealers will be allowed to serve their 
sentences in home detention or work release. And other inmates will be 
eligible for earlier release under the state's Community Transition Program.

Legislators also made it harder to hit drug offenders with long sentences 
due to their habitual status, or having multiple prior felony convictions.

"People are talking treatment rather than throwing away the key," said 
Allen Superior Judge Kenneth R. Scheibenberger. "I'm not sure what (the 
legislature) had in mind, but I think there is a general philosophic trend 
away from that."

Rep. B. Patrick Bauer, D-South Bend, sought the new community transition 
and habitual drug offender language, and then inserted the provisions into 
the budget, which became law last week.

"It's a tax savings, but also perhaps we need to focus more on 
rehabilitation," Bauer said.

He said 40 percent of all DOC prisoners are non-violent, and they cost the 
state between $25,000 and $30,000 a year to house. On the other hand, it 
costs community corrections between $7 and $35 per day to supervise an 

"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 of three go back.

"We're trying to stem the tide of building more prisons."

There are at least 1,700 men serving time in prison for only drug offenses, 
according to the Department of Correction. Of that number, 73 sentences 
were enhanced by the habitual offender statute.

Allen County Prosecutor Robert W. Gevers II said the sentencing changes are 
not a signal Indiana is giving up the war on drugs; he doesn't believe 
there ever was one.

"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, halfhearted 
approach - we would not be having this conversation. It would be over."

The new approach seems to indicate the legal system is at odds with how to 
treat drug offenders - lock them up as criminals or rehabilitate them as 

This year, the legislature did a little of both. Lawmakers increased 
penalties for methamphetamine offenses but at the same time allowed those 
convicted to transition into society as much as six months earlier.

"We're struggling to find what works," Gevers said. "Putting them in jail 
isn't, but we haven't developed a coherent strategy for dealing with drug 
abuse in this country."

Some will see this year's changes as a weakening of the laws, while others 
will hail them as a needed attempt to end the cycle of drug abuse and crime.

The difference of opinion is best illustrated by the Indiana Prosecuting 
Attorneys Council, which worked with lawmakers throughout the process on 
the bills, but could not come to agreement on the answer as an organization.

The group's board of directors had a "slew of opinions," but no consensus 
could be reached, said Executive Director Steve Johnson.

"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 re-examining the war on drugs."

Sentencing options

The multitude of changes arrive through several different pieces of 
legislation, including the state budget and a bill to attack the growing 
methamphetamine problem in Indiana. Drug dealers who weren't allowed to be 
placed on community corrections before will now be eligible for work 
release and home detention, Johnson said.

Scheibenberger hailed the new provision because there are two levels of 
drug dealers - the entrepreneur doing it for money and the abuser doing it 
to feed an addiction.

Right now Scheibenberger's only option for a person found guilty of 
baseline dealing is a suspended sentence or prison. There is no middle step 
that provides supervision and treatment.

Judges need as many options as possible to get the "dealer" into the right 
sentencing alternative, Gevers said.

"Some are hard-core dealers just making money while poisoning the streets, 
and we should lock them up and throw away the key," Gevers said. "But 
community corrections here in Allen County has proven itself as an 
intensive supervision, education and treatment program that is going to 
help some of those drug dealers who are simply unable to help themselves."

For those drug offenders already serving time, Bauer's language provides 
for earlier release dates to the Community Transition Program.

The initiative, which releases non-violent offenders from prison into a 
supervised situation, was started several years ago to more effectively 
transition convicts back into society.

Allen County has one of the highest participation rates of all the counties 
in the program, as judges have agreed to release about 15 percent of those 
eligible. Marion County, on the other hand, has released less than 5 
percent of those eligible for the program.

Gevers attributes the high number to the confidence judges have in the 
local community corrections system.

Right now, inmates can get out anywhere from 60 to 120 days early. The new 
law accelerates the early release for drug offenders. For example, a man 
convicted of a drug deal that does not involve a weapon could be released 
six months early.

Scheibenberger said he has agreed to release about 30 percent of the cases 
brought to him, although they are largely low-level offenders who have not 
been a discipline problem in prison. He is unsure how he would feel about 
letting sentenced dealers back on the street.

Habitual offenders

The last major change made to the state's drug policy this year was in whom 
prosecutors can charge with being an habitual offender.

Based on the "three strikes, you're out" philosophy, a person arrested on a 
felony charge can now be charged with being an habitual offender if that 
person has two unrelated prior felony convictions. If found guilty, the 
sentence can be enhanced up to 30 years depending on the underlying crime.

Under the new provision, a prosecutor is limited in filing the habitual 
offender tag if the person is charged with a drug offense and only has 
prior drug convictions that do not include more than one dealing charge.

For instance, Scheibenberger sentenced Alvin White of Fort Wayne to 20 
years in prison last year for dealing cocaine, and then added another 20 
years because he was found to be a habitual offender.

Specifically, White had 1995 and 1997 convictions for drug possession, 
which now would make him ineligible for the enhancement.

Gevers said his office files quite a few habitual offender charges in drug 
cases. The goal in seeking the additional conviction is to take the 
criminal off the street for the longest time possible. To do so, 
prosecutors often use the charge as a bargaining chip to get the accused to 
admit to the main charge and serve the maximum possible while avoiding the 
additional years.

It's probably too early to gauge how many cases would be affected by the 
state's new change in policy because the restrictions are so narrow. The 
new provisions won't affect anyone charged with a violent crime or someone 
who has past violent convictions.

"We may end up filing fewer habitual charges, and you won't see sentences 
as long as they could be," Gevers said. "There is little leverage when 
someone is given four strikes before they're out - it's a heck of a lot 
easier with three strikes."
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