INDIANAPOLIS — After the Madison County judge looked at Bruce A. Wilson’s pre-sentence report, he made a decision, based in part, the judge said, on Wilson’s “lack of remorse.”

So Wilson, busted with two ounces of marijuana tied up in three bags, $3,900 in cash and no prior felony convictions, was sentenced to three years in the Indiana Department of Correction for something which would have earned him a citation and a fine in Ohio.

Unfair? Not according to the Indiana Court of Appeals, which upheld the sentence.

Thus, Wilson became a statistic, one of the growing numbers of low-level felons in Indiana’s prison system, which grew by 41 percent between 2000 and 2009, a period which saw an almost perfectly corresponding drop in violent crime. Individuals like Wilson, convicted and sentenced on a Class D felony charge — the least severe of Indiana’s four felony grades — are the reason for that increase.

Systemic change starts at Statehouse

As the Indiana General Assembly begins a short session in January, expect that one fact to be front and center. The Legislature — at the prompting of Indiana Gov. Mitch Daniels — will be taking a hard look at the more than $600 million annually spent on prisons.

Legislators also will look at money the state spends funding community corrections programs in the counties, programs designed to keep offenders like Wilson out of prison, considered by some to be a sort of academy for advancement in crime.

Statistics provided by researchers, who are analyzing sentencing trends for low level offenders, will be used in legislators’ assessments. One of the most glaring disparities already revealed has been the wide variation in how different counties treat the same offenses. The number of Class D felons going to prison is 20 times greater, on a per capita basis, from Huntington County than from Lake County.

“I don’t think we have any Jean Valjeans out there,” State Sen. Richard Bray, R-Martinsville, quipped as questions of harsh sentencing arose during a summer legislative study session he led.

But if there are no examples of Les Miserables’ fictional Valjean — sentenced to 10 years for stealing a loaf of bread — in Indiana’s prisons, there may be quite a few Bruce Wilsons.

Technically, the maximum sentence in Indiana for stealing a loaf of bread would be three years, as that is the maximum sentence for a Class D felony.

The fact that theft — no matter how small — is charged as a felony in Indiana was the first topic raised in Bray’s summer session. 

Whether a bill surfaces to establish graduated theft charges, and to establish new limits on a prosecutor’s discretion to charge petty theft as a felony, will be seen as the new legislative session unfolds. As the debate has evolved, the lack of sentencing statistics on low-level DOC prisoners — including the role played by judges and prosecutors — has become one clear area where the Indiana Prosecuting Attorneys Council and the reform proponents agree research and discussion is needed.

Where they disagree, sometimes vehemently, and sometimes simply because not much is quantitatively known on the subject, is on how much latitude judges and prosecutors should have on the fate of an offender like Wilson.

Earlier this year, a comprehensive reform bill of state sentencing and criminal laws died after heavy criticism from the county prosecutors’ Council, which came out especially hard against the bill’s attempts to lower the weight threshold for a drug dealing charge.

Legislators backing the reforms, like state Rep. Ralph Foley, R-Martinsville, are planning to respond in the upcoming session by breaking down the comprehensive bill’s components and trying to pass them one by one.

Foley isn’t the first person to question why Indiana has more than 27,000 individuals incarcerated in state prisons, but somehow the mild-mannered Martinsville Republican attorney has become the point legislator on a very tricky issue.

“Our problems … I don’t know they’re being solved by delay. I think they’re being exacerbated by delay,” Foley said.

State officials want to reduce the costs associated with the Indiana Department of Correction. The problem, as seen by DOC officials and the office of Gov. Mitch Daniels, is that the state’s prisons have become a revolving door for petty criminals.

Data helps to frame debate

Offenders with Class D felony convictions comprise some 55 percent of individuals going into the system, and offenders serving one year or less comprise more than 65 percent of the individuals released back into society each year, according to DOC statistics.

The U.S. Department of Justice says the revolving door has accelerated. Eleven years ago, less than half of Indiana’s prison releases were being turned loose after serving a year or less.

And the chances someone convicted of a Class D felony — an offense with a maximum sentence of three years — will serve more than a year in the DOC are slim. State law affords offenders one day of “good time credit” for each day served, so sentences are effectively cut in half. 

By the time an offender gets to prison, he or she also often has picked up numerous days of credit from time served in a county jail while awaiting trial.

For close to a decade, the national trend was to lock up violent criminals. The number of sentenced prisoners convicted of violent crimes (murder, manslaughter, rape, etc.) grew by 60 percent between 2000 and 2008.

In Indiana, that trend seems to have been turned on its head. 

Increasingly, the prisons are seeing greater and greater numbers of non-violent, short-term offenders, convicted of Class D felony crimes like theft.

New admissions to Indiana prisons were only slightly above the state’s rate of population increase from 2005 to 2010, but the number of new inmates serving sentences for theft as a Class D felony grew by 31 percent over the same period. Prosecutors, though, have used some of the same statistics to make their own points.

The debate is now being framed by data coming from the state’s Justice Reinvestment Initiative, a bipartisan initiative requested by Daniels, legislative leaders with both parties and Indiana Attorney General Greg Zoeller to the non-profit Pew Center on the States.

The stated goal of the initiative is “to reduce spending on corrections and reinvest in strategies to increase public safety in Indiana,” according to the study results published just before the start of the 2011 legislative session.

The most contentious part of the Pew study likely has been the statement that without reforms, Indiana’s prison population will grow by an additional 21 percent between 2010 and 2017.

The prosecutors council’s leaders flatly rejected that conclusion, noting that in the past two years, Indiana’s prison population has basically flatlined. The Pew study’s decision to use the 2000 to 2009 time frame, council leaders argue, was calculated to create the greatest percentage increase. 

“If the economy were booming and the revenues were flowing in, we probably wouldn’t be having this conversation,” said David Powell, director of the prosecuting attorneys council. 

“Crime is down as a result of the last two or three decades of prosecutors getting better at their jobs, and maybe because prisons were built and expanded. Now, the reaction is, ‘We’re safe, so let’s let off on the rein a little bit,’” Powell said.

Road to reform a bumpy path

This summer, Rep. Foley tried to renew interest in a system of incentives and disincentives, designed to encourage certain counties from sending disproportionate numbers of Class D felons to state prison. 

The measure was to be one of the cornerstones of the failed comprehensive reform bill.

Immediately, the Indiana Sheriffs Association put out an alert to its members, suggesting legislators were getting ready to remand all Class D offenders back to the county jails.

Howard County Sheriff Steve Rogers also immediately reported “a situation” to the Howard County commissioners, telling them more than 50 inmates could be returning to the already crowded county jail in Kokomo.

Sheriffs association spokesman Steve Luce said he didn’t mention the multiple promises, by Foley, that the Legislature wouldn’t create a new unfunded mandate for counties.

“You really don’t know, so you want people to be prepared for a worst-case scenario,” Luce said.

Foley, who is proposing to fund the program largely from realized savings in the DOC system, wasn’t happy with the portrayal.

“That kind of misinformation campaign has been really frustrating to me,” Foley said. “I am dedicated to getting money back to the counties; the whole thrust of the thing is to get money back to the counties,” he added.

Many other voices are coming out in the debate, including IUPUI law professor Joel Schumm, who argued Wilson’s case in front of the Indiana Court of Appeals.

Schumm said Indiana judges don’t want to give up their discretion of where to send Class D felons, and he claims that’s costing the state money.

“Essentially, [the] state has given judges a credit card with no limit and no payment due date,” he said.

Larry Landis, director of the Indiana Public Defender Council, said he would prefer efforts focus on the 40 percent of Class A and Class B felons imprisoned for drug offenses.

His concern is whether the reforms will result in more substance abuse and mental health treatment being made available to offenders. If not, it becomes an exercise in cost-shifting to the counties, he said.

“If you’re going to push people from DOC to county jails, you’re going to have problems if you don’t provide funding for substance abuse and mental health treatment,” Landis said. “If you don’t have money for treatment, everything is undermined.”

The greatest reduction in the prison population, Landis said, would come from raising the current 10 gram limit for possession of most hard drugs. Anything over that limit is now charged as dealing.

State Sen. Randy Head, R-Logansport, said he supports creating incentives for counties to expand community-based corrections programs. 

“It’s better than just warehousing them [in the DOC],” he said, cautioning that counties must be given the resources to operate such programs.

A former prosecutor, Head is lukewarm to other proposals. He voted “No” when Bray’s Criminal Code Evaluation Commission study committee voted 7-6 in July to recommend a $750 threshold for a felony theft charge.

The great hope of the reformers is that additional statistical data will smooth the path. Foley said the state already has made good strides in the availability of data.

“One of the criticisms about Daniels is that he’s too focused on measurement, but I understand why he’s like that. Before he was governor, we didn’t even keep recidivism rates for Indiana prisons,” Foley said.

Scott Smith is a reporter with the Kokomo Tribune, a CNHI newspaper. He can be reached at Scott.Smith@kokomotribune.com