INDIANA DRUG DEAL SENTENCES CHANGED

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
Correction.

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
offender.

"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
addicts.

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."