INDIANAPOLIS – Lawmakers are throwing in the towel on a primary pillar behind Indiana's 2014 criminal justice overhaul.
The goal then was to divert drug addicts and low-level offenders from state prisons to local treatment and supervision to reduce recidivism.
That part of the reform kicked in Jan. 1, 2016. And after five years – with many county jails bursting with inmates – lawmakers last week passed legislation that could lead to sending many of those low-level offenders back to state prison. House Bill 1004 passed the House 90-3 and now moves to the Senate.
“We are giving up and we haven't fully put our shoulder into it,” said Bernice Corley, executive director of the Indiana Public Defender Council. “We were putting more building blocks in place; ... this came out of nowhere.”
Corley said the state never provided the money necessary to expand the mental health, substance abuse and community supervisions programs. And local judges never bought in – still using incarceration as the primary tool in sentences instead of counties embracing community corrections and probation.
“Jail overcrowding is the tipping point,” Corley said.
The bill isn't a mandate. But it gives local judges the discretion to send level 6 felony offenders to state prisons instead of county jails.
“I'm all for it,” Allen Superior Court Judge Fran Gull said. “They haven't given us money.”
The Allen County Jail, which is routinely overcrowded, is the subject of a 2020 federal lawsuit by the American Civil Liberties Union that alleges inmates' rights are being violated. County commissioners are looking at all the options for a new jail that could cost $150 million.
A fiscal impact statement said that an average 14,760 people each year from 2012 and 2014 were committed to the Indiana Department of Correction. Between 2016 and 2020 – after the level 6 change – that average dropped to 8,840.
In fiscal year 2021, 28,589 people were convicted and sentenced for a level 6 felony. Of these, 15,936 were placed in a county jail for one or more days. Level 6 felonies, the lowest level of felonies, includes some battery cases, breaking and entering, thefts of property between $750 and $50,000, forgery and drug possession.
Rep. Randy Frye, R-Greensburg, the author of the legislation, concedes the growing jail populations are a concern. He said it's inhumane for people to be sleeping on mattresses on jail floors.
But Frye said that isn't the primary reason for the bill. He said many counties – especially in rural Indiana – don't have appropriate mental health and substance abuse services, while the Indiana Department of Correction has them readily available.
“If we don't get people care they will be back,” Frye said.
He said the legislation isn't a mandate, and judges who have the details of the case need to make the ultimate decision.
“When we did (reform) we thought we were doing the right thing,” Frye said. “For some communities it isn't right.”
The Indiana Department of Correction says it has enough space. Its maximum capacity is 29,079, and as of Dec. 1 the population was 23,035.
But when the criminal justice reform was discussed in 2013 alarm bells were ringing. And even after the reform, the Department of Correction projected its population would top 31,000 inmates in 2019 and exceed adult male secured confinement capacity in 2018.
The Department of Correction declined an interview request but is building a new Westville Correctional Facility with 4,000 beds. That location currently has about 3,500 beds.
Frye also noted the cost to the state will be lower under the bill – $12 a day to house a prisoner versus the $37.50 a day the state has been paying to county sheriffs for level 6 offenders.
Corley argues level 6 offenders won't get to use Department of Correction programs. The maximum sentence is 30 months, with most being less than that. Credit for good behavior cuts any sentences behind bars. And those who were in jail before their trials are credited for time served when they are sentenced.
“Level 6 offenders likely won't be there long enough to use those programs,” she said. “If I was the Indiana Department of Correction, I wouldn't be happy. They already have a line for access to recovery services.”
Rep. Matt Pierce, D-Bloomington, said the state funded some pilot programs in which counties could seek grants. And the results showed a clear drop in recidivism.
“But we are still waiting to fully fund it. That was on us to do, and we've never done it,” he said. “And so sheriffs are frustrated and we arrived at this point. As much as I don't like that this is a surrender, I think it's a practical thing that we have to do.”