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Indiana’s struggle with insanity defense mirrors coming SCOTUS case

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The Indiana Lawyer on 9/5/2019 by Marilyn Odendahl

A case that split the Indiana Supreme Court last December over a criminal defendant’s mental capacity to appreciate the wrongfulness of her actions dovetails into a larger question looming before the U.S. Supreme Court — whether states have to provide laws that allow for an insanity defense.

Cases raising the issue of how much evidence is required to support an insanity defense appear regularly in Indiana criminal courts, said Indiana deputy attorney general Steve Creason. The especially difficult cases, particularly those where a trial judge or jury found the defendant was not insane, come before the state’s appellate courts every couple of years.

But Kahler v. Kansas, 18-6135, could offer some guidance. That case, which is scheduled for oral arguments before the U.S. Supreme Court Oct. 7, will examine whether the elimination of the insanity defense violates the Eighth and 14th amendments of the Constitution.

“What the U.S. Supreme Court says about insanity defense and its history might very well affect how our court, and the justices on it, approach these questions,” Creason said.

Creason made his observations Wednesday at a panel discussion hosted by the Indianapolis Lawyers Chapter of the Federalist Society for Law and Public Policy Studies. The panel, which included Indiana Justices Mark Massa and Geoffrey Slaughter plus Indiana Solicitor General Thomas Fisher, reviewed some select opinions issued by the Indiana Supreme Court last term. Faegre Baker Daniels partner Brian Paul moderated the discussion.

The insanity defense case that Creason highlighted was Barcroft v. Indiana, 18S-CR-135.

Lori Barcroft was found guilty but mental ill in the shooting death of Southport pastor Jaman Iseminger. The Indiana Court of Appeals reversed, citing Galloway v. State, 938 N.E.2d 669 (Ind. 2010),  on the grounds that the trial court relied on demeanor evidence which was of no probative value in light of Barcroft’s history of mental illness and the conclusions of three experts who found she could not appreciate the wrongfulness of her actions.

A split Indiana Supreme Court found the demeanor evidence was ample and supported the guilty but mentally ill conviction. The majority opinion, written by Massa, held that Barcroft’s actions before, during and after the crime, along with the flawed expert testimony and lack of a well-documented history of mental illness, was more than sufficient to support the rejection of her insanity defense.

Justice Christopher Goff dissented, joined by Justice Geoffrey Slaughter.

Goff saw the court as retreating from the stance taken in Galloway which asserted “demeanor evidence must be considered as a whole, in relation to all the other evidence.” Also, he viewed Barcroft’s actions at the time of the shooting in addition to the evidence of her mental illness and the experts’ testimony as all supporting her insanity defense.

Creason views the dissent as also looking at the role the insanity defense plays in our jurisprudence. This, he said, relates to the issue at the center of Kahler, which is whether insanity is a fundamental principle of law.

Kansas is one of four states that has legislatively abolished the insanity defense. Evidence of insanity is not barred but, according to the Sunflower State, the evidence of mental disease or defect must be channeled into the mens rea element of the crime.

Indiana has joined 15 other states in an amicus brief supporting Kansas. They argue the Constitution does not require states to provide any insanity defense to criminal liability.

In their brief, the states asserted, “While the Court has considered issues of moral culpability to be relevant to the punishments for certain classes of criminals, those moral culpability cases do not draw into doubt the legitimate, predicate power of the States to convict and impose some punishment on those who commit crimes despite their reduced moral capacity.”

How To Talk To Teens About Vaping

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NPR on 10/06/2019 by Emily Vaughn

Vape pens are easy to conceal, they’re easy to confuse with other electronic gadgets like USB flash drives, and they generally don’t leave lingering smells on clothes. All these things make them appealing to underage users, and confounding to parents. Gone are the days when sniffing a teenager’s jacket or gym bag counted as passive drug screening. Now if parents want to know if their teens are vaping nicotine or cannabis, their best bet is a good old fashioned conversation.

And with news of an outbreak of life-threatening vaping illness sweeping the country, and vape use at an all-time high among teens, the issue feels more urgent than ever. Here’s what to say — and not to say — to help your child deal with peer pressure and misinformation, and stay safe.

Explain the health risks, because some kids really don’t know

Surprisingly, there’s a widespread the misconception among teens that vaping is safe. “Two thirds of kids didn’t realize Juul always has nicotine,” says Robin Koval, CEO of Truth Initiative, a public health organization focused on ending tobacco use. “Many of them started vaping thinking it was just great flavors and water vapor. They certainly didn’t sign up to become addicted.”

Dr. Suchitra Krishnan-Sarin, a psychiatrist at Yale University, who specializes in teenage substance abuse, says when it comes to some ingredients, “we don’t really know the long term effect on your health.” She says the advice she gives her own son is: “Don’t put something in your body if you don’t know what’s in it.”

It may seem obvious, but make sure your kid understands that vaping comes with health risks. There’s even more risk for vape products purchased informally, which could have been adulterated, and for THC-containing products — which the CDC warns people to stay away from altogether until it has a handle on the vaping lung disease outbreak.

Continue reading…

IU conducts probation revocation study to combat mass incarceration

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Indiana Daily Student on 10/06/2019 by Claire Peters

IU is working with the Monroe County Circuit Court Probation Department to decrease the number of people sent to jail over probation violations as part of a nationwide study conducted to reduce mass incarceration.

When people are on probation, if they break any of the rules, such as not showing up for appointments, they are sent to prison.

Troy Hatfield, the Deputy Chief Probation Officer for Monroe County said they want to reduce the number of people on probation being sent to jail, and to do that they will need to create strategies based on their research.

IU is collaborating with Monroe County to analyze instances where people on probation were sent to jail to create solutions for reducing incarceration rates.

Hatfield said they’re going to look at data from 2014 to 2018 and pinpoint the ways that people on probation violated the guidelines and were sent to jail.

Arnold Ventures, a research philanthropy group, is funding the study. It is being conducted by the City University of New York Institute for State and Local Governance and is taking place in 10 cities across the United States.

“A huge number of people are in community supervision,” said CUNY senior research associate Victoria Lawson. “It’s ballooned in the past decade.”

It’s up to 2% of the population, Lawson said.

But Bloomington is well below the national average of revocation rates, Hatfield said. The city is at a 15% revocation rate,with the national average around 24-33%.

“The idea is that each of these 10 places is going to publish a research report and come up with a strategy for reducing revocations,” Lawson said. “We want them to create a proposal based on their own situation.”

Although Monroe County has taken steps to reduce incarceration numbers, the results have been mixed, said IU lead researcher Dr. Miriam Northcutt Bohmert.

“The county has been trying to reduce mass incarceration by putting them on probation instead,” Bohmert said. “We have a lot of people on probation, which is costly,and people are failing.”

She said many people run into issues with the financial obligations, such as paying probationary fees and participating in urine tests. Sometimes they end up committing other crimes while on probation, sending them to jail.

Bohmert said Bloomington is a great place for this study to be conducted because of Monroe County’s computer system, which has a large amount of detailed information regarding cases.

“We’re looking at people who failed, why some people have failed and succeeded, and can we create those successful conditions,” Bohmert said.

Divided ruling: Felony reduced to misdemeanor means longer expungement wait

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The Indiana Lawyer on 9/6/2019

The Indiana Court of Appeals on Friday asked the Indiana General Assembly for guidance as it sharply divided over whether minor felonies reduced to misdemeanor convictions should trigger new five-year waiting periods for people seeking to expunge their criminal records. The majority ruled they should, a result the dissenting judge called “unjust and ill-advised.”

The appellate panel affirmed the denial of an expungement petition that was filed last year in Elkhart Superior Court. Naveed Gulzar was convicted of Class D felony theft in 13 years ago, and in 2016, he successfully petitioned to have the conviction reduced to a misdemeanor. But when he filed an expungement petition in 2018, the trial court denied it, ruling that the entry of the misdemeanor conviction meant Gulzar had to wait five years from the date the conviction was reduced for relief.

Appellate judges Terry Crone and James Kirsch agreed in Naveed Gulzar v. State of Indiana, 19A-XP-637. “In an issue of first impression, we conclude that (Indiana Code) Section 35-38-9-2(c)’s requirement that a person wait at least five years ‘after the date of conviction’ before petitioning a court for expungement means five years from the date of the misdemeanor conviction, and not, as Gulzar urges, the date of the class D felony conviction. Therefore, we affirm,” Crone wrote for the majority.

The majority and Judge John Baker’s dissent focused on elements of statutory construction to construe whether Gulzar and others similarly situated would qualify for an expungement, but the jurists came to completely opposite conclusions.

“We acknowledge that there is an incongruity between the waiting period required for expungement of conviction records for a class D felony and the longer waiting period required for a class D felony conviction converted to a class A misdemeanor,” Crone wrote. “Under Section 35-38-9-3(c), a person convicted of a class D felony must wait eight years after the date of conviction to petition a court for expungement. However, a person who has a class D felony conviction converted to a class A misdemeanor will have to wait longer. If a person seeks to convert a class D felony conviction to a class A misdemeanor, Section 35-50-7-2(d) first requires the person to wait three years after completing his or her sentence and satisfying all obligations before petitioning to convert the class D felony conviction to a class A misdemeanor. Then, Section 35-38-9-2(c) requires that the person wait five more years before petitioning for expungement. Thus, the waiting period required to petition for expungement for persons with converted class D felonies will be greater than eight years depending on the length of the person’s sentence and the time it takes him or her to satisfy the obligations imposed as part of the sentence. This incongruity is one that our legislature might consider addressing.”

Nevertheless, the majority concluded that by virtue of the conversion of his Class D felony conviction, “Because Gulzar was convicted of class A misdemeanor theft in August 2016, five years after the date of his conviction have not elapsed, and therefore he is not entitled to expungement of his misdemeanor conviction records under Section 35-38-9-2 at this time.”

Baker would remand the matter to the Elkhart Superior Court with instructions to grant the expungement, he wrote in dissent, suggesting the absurd result doctrine might apply in Gulzar’s case.

“(A)s a general rule, ‘we presume that the General Assembly intended its language to be applied logically and so as not to cause an unjust or absurd result,’” Baker wrote, citing Marshall v. State, 52 N.E.3d 41, 43 (Ind. Ct. App. 2016). Additionally, citing Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016), he noted, “expungement statutes are inherently remedial and, as such, should be liberally construed to advance the remedy for which they were enacted.”

“Our courts have not addressed whether, in cases where a class D felony conviction has been converted to a class A misdemeanor, ‘the date of conviction’ for purposes of the five-year waiting means the date of the class D felony conviction or the date the class D felony conviction was converted to a class A misdemeanor,” Baker noted.

“I believe that the position advanced by the State, and adopted by the majority, leads to an illogical result — a person who has a Class D felony conviction that was converted to a Class A misdemeanor has to wait longer for expungement than someone who merely has a Class D felony conviction. I simply cannot accept that the General Assembly intended this result, which is both unjust and ill advised. Moreover, given the mandate that we liberally construe the expungement statutes, in my opinion the result is doubly wrong.”

Baker did agree with the majority in one regard, writing in a footnote, “I certainly join in the majority’s wise suggestion that the legislature consider addressing this unclear statutory language.”

Stakeholders praise pretrial reforms at statewide summit

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The Indiana Lawyer on 10/04/2019 by Olivia Covington

Across Indiana, 44 local jails are currently at capacity. But if half of all pretrial detainees were released, that number would fall to 11.

State Rep. Greg Steuerwald presented that statistic Friday during the opening session of the Indiana Pretrial Summit. Interdisciplinary teams from all 92 counties gathered in Indianapolis to learn about pretrial best practices ahead of the Jan. 1 effective date of Criminal Rule 26, which will officially implement pretrial reform efforts.

Steuerwald acknowledged that releasing half of Indiana’s pretrial detainees is not a simple task. Even so, he used the statistic to demonstrate the benefits he sees in Indiana’s recent efforts to release low-level, low-risk offenders.

Those efforts have focused on a move away from following a traditional bond schedule and toward using evidence-based assessments to determine if a defendant is eligible for pretrial release. Eleven counties have been part of a pilot project to develop pretrial release programs in their jurisdictions.

Monroe Circuit Judge Mary Ellen Diekhoff, who has been part of the pilot program, used a sweet example to share her thoughts on the effectiveness of evidence-based pretrial decisions.

Across the Indiana Convention Center ballroom filled with hundreds of attendees, 100 Grand candy bars were randomly distributed. Those with candy bars at their seats were told they could leave the room, but everyone else had to stay.

“That is how we have done bail for a long time in this country,” Diekhoff said. “If you had the money, you could bail. Did we know anything about you? No. … Those of you who did not have money,” she continued, “we didn’t know anything about you, either. But you stayed in.”

Diekhoff championed evidence-based assessments as enabling judges to make informed decisions about which defenders could successfully be released pretrial. The assessments aren’t a controlling factor that take away judicial discretion, she said, but instead are tools that help courts better predict which defendants are at risk of failing to appear or committing a new crime, the two main factors considered in pretrial release decisions.

Indiana’s most commonly used assessment is the Indiana Risk Assessment System – Pretrial Assessment Tool. Brad Ray, the director of the Center for Behavioral Health and Justice at Wayne State University, said effective use of the IRAS-PAT depends on judicial stakeholders understanding its purpose.

The tool isn’t meant to predict criminal thinking or global risk, Ray told the summit. Instead, it’s designed to predict a defendant’s risk of failing to appear or committing another crime if they are released pretrial.

“Public safety is and will continue to be our first concern,” Indiana Chief Justice Loretta Rush told the crowd, addressing concerns that have been raised during the pretrial reform process. Indeed, St. Joseph County Prosecutor Ken Cotter said when his county began the pilot, he “thought the sky was going to fall.”

Though it’s been a difficult process at times, Cotter said he now “grudgingly but forcefully” supports the use of evidence-based assessments. One benefit he’s seen has been the ability to keep a dangerous person suspected of only a “small crime” — and thus subject to a lower bond — in jail despite their monetary ability to bail out.

“It really comes down to knowledge,” Cotter said, describing the information gleaned from pretrial assessments.

Grant Circuit Judge Mark Spitzer said Grant County agreed early on to serve as a resource for other counties developing pretrial release programs. He said Grant County’s approach has been to view pretrial assessments in light of the “Three Ms”: maximize release, maximize public safety and maximize court appearances.

In so doing, Spitzer said Grant County has begun holding “meaningful first hearings” that involve both the prosecution and defense lawyers engaging with the court and sharing information to determine if a defendant is eligible for pretrial release and/or should be diverted into intervention or treatment programs. These hearings are intended to be a departure from traditional initial hearings where, Spitzer said, sometimes no lawyer was present at all.

Another element Spitzer urged attendees to consider was pretrial release conditions. Emphasizing that “pretrial is not probation,” he said defendants should be supervised only to the level necessary to ensure they appear in court and don’t commit a new offense. That supervision could be as basic as a text reminder to appear in court, he said.

A key theme from all speakers during the opening session was the need for data to assess the effectiveness of pretrial release programs. In Monroe County, Ray said the use of the IRAS-PAT has shown to be moderately to strongly predictive: 8.4% percent of low-risk defendants violated pretrial release terms, while 33% of moderate-risk and 52.5% of high-risk defendants did the same.

Speaking with reporters before the summit began, Spitzer said in Grant County, initial data showed that 0% of low-risk pretrial defendants had a failure. That number will likely change, but the judge still believes the initial results point toward the assessments being effective.

Other stakeholders, including prosecutors and public defenders, attended Friday’s summit. Bernice Corley, executive director of the Indiana Public Defender Council, has previously raised concerns about the possibility of bias in pretrial assessments.

Though no tool is perfect, Corley told reporters she thinks Indiana’s pretrial reform efforts are moving the state toward a fairer system. The key, she said, is to implement that system with fidelity.

“All the stakeholders have to be at the table, public defenders have to be at initial hearings, and they have to be prepared to advocate for the accused that they’re serving,” Corley said.

Though opinions about CR 26 and its related reform efforts are generally positive, concerns linger about counties having enough funding and resources, including personnel, to complete assessments and connect defendants with necessary services. Pilot counties have been provided with grant funding, and Rush told attendees that pretrial reform leaders are continuing to look for other funding options to assist counties with the transition.

The speakers praised the interdisciplinary approach that has been taken to pretrial reform, with Steuerwald saying representatives from all three branches of government have been actively involved.

“Without that cooperation, I’m not sure it would’ve been done,” he said.

Summit attendees were scheduled to attend breakout sessions and a working lunch throughout the day on Friday.

POPAI 2019 Election Results

  • CJ Miller, District 5 was re-elected as Treasurer
  • Melanie Pitstick, Marion County was re-elected as District Five Representative

Due to not receiving any nominations for Districts 1 and 3, the Board filled the vacancies.

  • Robert Schuster (District 1)
  • Sarah Lochner (District 3)

were nominated by the Board and accepted the positions/terms.

The full Board Member Listing is at http://gopopai.org/executive-board/

Questions? Contact POPAI’s Election Committee Chair, Michael Coriell at (812) 948-5448 Ext. 409 or email the Administrator at contactusatPOPAI@gmail.com

Call for Papers – 2020 Justice Services Conference

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on 10/3/2019 by Indiana Office of Court Services

The Indiana Office of Court Services is pleased to announce a Call for Papers for the 2020 Justice Services Conference.

The conference will be held on April 27-29, 2020 at the Indiana Convention Center. The conference will include all staff from Probation, Court Alcohol and Drug Programs and Problem-Solving Courts. With the increased number of sessions offered, we are opening a “Call for Papers” for those interested in presenting a workshop at our conference. The submissions for presentation will be reviewed and selections made by the Indiana Office of Court Services staff along with the educational sub-committees for Probation, Court Alcohol and Drug Programs and Problem-Solving Courts.

Please contact Jennifer Weaver at jennifer.weaver@courts.in.gov with any questions relating to your submission.

Submit your information here: https://ijc.wufoo.com/forms/z6faggw0tfkes2/

Mears steps into top job, halts minor marijuana prosecutions

Indiana Lawyer on 10/2/2019 by Marilyn Odendahl and Olivia Covington

Ryan Mears

A week after he became acting Marion County prosecutor, Ryan Mears announced the office will no longer be prosecuting defendants accused of possessing 30 grams or less of marijuana.

“Too often, an arrest for marijuana possession puts individuals into the system who otherwise would not be,” Mears said at a press conference Sept. 30 announcing the change in policy. “The enforcement of marijuana policy has disproportionately impacted people of color, and this is the first step to addressing that.”

Although the policy change came a week after Terry Curry stepped down as Marion County prosecutor, Mears said the decision not to prosecute possession of small amounts of marijuana came after two years of discussion. Also, the office already has been shifting toward fewer prosecutions.

In 2018, 74% of marijuana possession cases were dismissed in Marion County and so far in 2019, that number has risen to 81%.

Mears said the new policy will not impact public safety, and that there is no correlation between possessing a small amount of marijuana and violent crime. The policy does not apply to individuals under the age of 18. Also, cases involving trafficking or dealing marijuana and driving under the influence of marijuana will continue to be prosecuted in Marion County.

Currently, under Indiana law, possession of marijuana in an amount less than 30 grams can be prosecuted as a Class B misdemeanor punishable by up to 180 days in jail and a fine of $1,000.

The policy announcement put Mears, who has 12 years of experience in the Marion County Prosecutor’s Office, into the spotlight just days after being tapped to temporarily lead the organization.

Mears was named the acting Marion County Prosecutor after Terry Curry resigned Sept. 23 because of health concerns. He has since announced his candidacy to fulfill the three years remaining on Curry’s term.

“Terry is my mentor, he’s my friend and I’ve learned so much from him,” Mears said. “He’s been such a good steward of the office.”

The process for choosing a permanent replacement for Curry will be done by caucus. Marion County precinct committeepersons will meet before the end of October and vote for one of the candidates to serve as prosecutor at least until Dec. 31, 2022.

Mears started at the prosecutor’s office in 2006 after his graduation from Indiana University Robert H. McKinney School of Law. He spent one year in private practice, representing civil and criminal defendants, which made an impression that he carried with him as he returned to the prosecutor’s office.

“I think it’s important to be able to see both sides and, also, it gives you a really good insight into what people are going through,” Mears said. “I think it’s always important to remember, it’s not only the family of the victim who’s going through things, the defendant’s family is going through a lot, too.”

Mears plans to keep going to court and leading trials as he handles the administrative duties of the office. He believes his direction on what cases are filed and how cases are resolved will be better appreciated by the deputy prosecutors if he regularly goes to court.

“That’s one of the things that I’ve always tried to do is continue to try murder cases and be in jury trials or bench trials so people see I’m willing to make the same sacrifices as them to hold people accountable,” Mears said.

Judicial commission investigating shooting involving judges

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The Indiana Lawyer on 9/11/2019 by Olivia Covington

The Indiana Commission on Judicial Qualifications is investigating the May 1 shooting that left two Clark County judges wounded and one convicted of misdemeanor battery, the Indiana Supreme Court confirmed Wednesday.

A court spokeswoman said the JQC is investigating the shooting outside of a downtown Indianapolis White Castle that put Clark County Judges Andrew Adams and Bradley Jacobs in the hospital. Adams pleaded guilty this week to misdemeanor battery against one of the other men charged in the incident, Brandon Kaiser.

Indiana Admission and Discipline Rule 25(VIII)(B) generally prohibits the disclosure of a JQC investigation, but an exception allows the commission to “disclose the existence of an investigation to assure that the proper administration of justice is being safeguarded.”

“Given the public exposure of the incident and Judge Andrew Adams’ September 9, 2019 guilty plea, the Commission is taking the rare step to disclose that an investigation into the incident is ongoing,” spokeswoman Kathryn Dolan wrote in an email to Indiana Lawyer. “While the specifics of the investigation will not be revealed unless and until formal charges are brought, the Commission is taking the necessary steps to conduct a proper, speedy, and appropriate disposition of this matter.”

Adams will not serve any jail time as a result of his plea, for which he received a suspended one-year sentence with no probation. Jacobs was not charged in the shooting, but along with Kaiser, Alfredo Vazquez is still facing felony and misdemeanor charges stemming from the incident.

The JQC moved to suspend Adams on June 28, the same day he was indicted by a Marion County grand jury. That suspension remains in effect, the court said.

Senior Judge Steven M. Fleece has been presiding over Adams’ court, Clark Circuit Court 1.

Public invited to comment on proposed rules for pretrial services

Full Article

Posted on 9/30/2019

To the Bench, Bar and Public:

The Board of Directors of the Indiana Judicial Conference is seeking public comment on proposed new rules for the certification of pretrial services. The proposed rules include:

  • Procedures for certification through the Indiana Office of Court Services
  • The creation of a multidisciplinary pretrial policy team
  • Pretrial services staff requirements
  • The development of a pretrial services policy and procedure manual
  • Required documentation for pretrial services activities

 Proposed Pretrial Services Rules

Feedback

The Board invites public comments until 12:00pm (Eastern) on Friday, November 1, 2019Submit comments online or by mail to:

Judicial Conference Board of Directors
c/o Diane Mains
Indiana Office of Court Services
251 N. Illinois Street, Suite 800
Indianapolis, IN 46204

2019 Gang Trends & Updates November 6th, 2019 Hosted by The Midwest Gang Investigators Association Indiana Chapter

Full Article

The Midwest Gang Investigators Association Indiana Chapter invites you to attend:

2019 Gang Trends & Updates
November 6th, 2019

In conjunction with the Indiana State Police (ISP), Indiana Department of Corrections (IDOC), and the Indianapolis Metro Police Department (IMPD).

LOCATION: Monroe Convention Center
ADDRESS: 302 South College Avenue, Bloomington, IN 47403

8-hours of ILEA training credit w/ certificate is given upon class completion.
Lunch is on your own. Refreshments will be on-site.

See the registration document for schedule, registration form, and hotel information

Criminal suspects can’t be forced to pay for their own GPS monitoring, court rules

Full Article

Arizona Republic on 10/01/2019 by Lauren Castle

Judge Peter Swann (from left), Judge Paul McMurdie and Judge Lawrence Winthrop hear arguments in Hiskett v. Hon. Lambert/State at the Arizona Court of Appeals in Phoenix on Aug. 22, 2019. (Photo: Thomas Hawthorne/The Republic)

A state law allowing the electronic monitoring of people accused of sex offenses does not give counties the authority to force defendants to pay for their own monitoring before they are convicted of any crime, the Arizona Court of Appeals has ruled.

The Arizona Court of Appeals ruled Tuesday after a Mohave County man told a judge he couldn’t afford to pay $400 a month for pretrial GPS monitoring services through a private company. The judge set his bond at $100,000 and sent him to jail.

Robert Hiskett was charged with sexual conduct with a minor but was released on his own recognizance. He was ordered to be under GPS monitoring, and to pay for it himself.

Hiskett and his attorney brought up their concerns about the GPS monitoring costs at a hearing in May. Hiskett said the fee was too expensive because he was supporting his daughter while also living in a different household.

Robert Hiskett was put in jail after not being able to afford pre-trial GPS monitoring. (Photo: Courtesy of Robert Hiskett)

His attorney, Michael Wozniak, asked that public funds be used to cover the monitoring costs. Instead, Mohave County Judge Rick Lambert sent Hiskett to jail. The judge said during the hearing that it was a community safety issue.

The ACLU stepped in with an emergency appeal, arguing that state law doesn’t allow the Mohave County Probation Department to threaten jail just because someone can’t afford to pay a private company for pretrial electronic monitoring.

The judge then released Hiskett from jail.

The Arizona Attorney General’s Office has weighed in on the matter, saying state law does not give courts the power to force defendants to pay for mandatory pretrial GPS monitoring.

However, the office did say Hiskett should be under GPS monitoring due to the charges against him.

County was trying to get out of paying

The Court of Appeals pointed to State v. Reyes for one reason why Hiskett shouldn’t be burdened with the costs.

The court ruled that Reyes, who was convicted, was not required to pay for his own DNA testing.

Arizona Judge Lawrence Winthrop hears arguments in Hiskett v. Hon. Lambert/State at the Arizona Court of Appeals in Phoenix on Aug. 22, 2019. (Photo: Thomas Hawthorne/The Republic)

“If the superior court in Reyes could not order a convicted felon to pay for mandatory DNA testing where the statute was silent about cost shifting, the same reasoning applies

here — and with greater force — where Petitioner is accused of certain crimes but has not yet been tried, much less convicted,” Judge Lawrence Winthrop wrote in the opinion.

The court said it looked at the legislative history of the state law to come up with its conclusion.

“Although counties are not necessarily required to invest in location monitoring devices, counties that utilize such devices may not require accused defendants such as Petitioner to pay the cost,” Winthrop wrote.

During a November email exchange with Mohave Probation Department Officer Alan Palomino, Hiskett’s attorney asked about the company’s fees.

“The problem with the Pre-Trial defendants is that when they don’t pay for their GPS, the probation department gets stuck with the bill,” Palomino stated in the email. “We don’t have the funding for GPS monitoring for probationers, let alone Pre-Trial defendants, and regardless of a defendant’s innocence or guilt, it is not the probation department’s responsibility to pay for GPS monitoring while their case is pending.”

The Court of Appeals ordered Mohave County to have a hearing on the availability of electronic monitoring:

  • Can it be provided by the county or a private company.
  • Determine the costs and savings.
  • Make an individualized assessment of what released conditions or bail is appropriate.

Arnold Ventures and the CUNY Institute for State and Local Governance Announce 10 Jurisdictions Selected as Probation Research and Reform Sites

Full Article

CUNY Institute for State & Local Governance on 9/24/2019

New York, New York – Today, Arnold Ventures and the CUNY Institute for State and Local Governance (ISLG) announced the selection of 10 jurisdictions to participate in the Reducing Revocations Challenge, a national initiative dedicated to transforming probation supervision and reducing the number of unnecessary failures. The Challenge was launched in response to the growing recognition that supervision failures are a major contributor to mass incarceration, responsible for almost half of state prison admissions nationwide, and need urgent reform.

The Challenge will support action research in the 10 selected jurisdictions to better understand why revocations occur and how they can be prevented, with the goal of informing specific policy and practice interventions that can be piloted and tested in a potential second phase of the initiative. In each jurisdiction, the work will be carried out by action research teams (ARTs) comprised of a research group and a partner probation agency. Selected jurisdictions and ARTs include the following:

  • Cook County, IL: Loyola University and the Cook County Adult Probation Department
    Denver, CO: University of Wyoming and Denver Adult Probation
  • Harris County, TX: Justice System Partners and the Harris County Community Supervision & Corrections Department
  • Monroe County, IN: Indiana University and the Monroe Circuit Court Probation Department
  • Niagara County, NY: Niagara University and the Niagara County Probation Department
  • Pima County, AZ: Urban Institute and the Adult Probation Department of the Superior Court in Pima County
  • Pulaski County, AR: University of Arkansas for Medical Sciences and Arkansas Community Corrections
  • Ramsey County, MN: Robina Institute and Ramsey County Community Corrections
  • Santa Cruz County, CA: Resource Development Associates and the Santa Cruz County Probation Department
  • Spokane County, WA: ideas42 and the Spokane Municipal Probation Department

As they carry out their work, ARTs will receive technical assistance from experts in the probation field and participate in peer learning events that include a cross-site summit where they will share what they have learned and discuss potential solutions. At the end of the Challenge, each ART will release a public report summarizing findings and policy and practice implications.

ISLG serves as the Challenge’s research intermediary.

“Probation revocations are a significant driver of incarceration—in light of that, it’s great to see corrections leaders stepping up to transform what’s not working and expand what is,” said Amy Solomon, Vice President of Criminal Justice at Arnold Ventures. “The Reducing Revocations Challenge sites represent the cutting edge of research-practitioner partnerships, and each site will serve as a model for other jurisdictions, demonstrating the most effective ways to reduce probation failures, strengthen public safety, and ensure greater equity in our communities.”

“Probation violations have resulted in significant increases to prison populations to no good effect, and it’s time to refocus resources on policies and practices that will help people succeed and increase public safety,” said Michael Jacobson, Executive Director of ISLG and former Commissioner of the New York City Department of Probation. “We look forward to collaborating with these 10 sites in their pioneering efforts to do just that. Understanding what drives revocations—and for whom—is a critical first step, and the insights we gain from the Challenge can help probation offices around the country advance effective strategies for increasing success.”

“The Reducing Revocations Challenge is aimed at reducing mass incarceration, and I am optimistic about this initiative to better understand violations of probation from both a policy and practical perspective; and ultimately, to improve outcomes and reduce unnecessary failures,” said Veronica Cunningham, Executive Director of the American Probation and Parole Association and former Chief of Cook County Adult Probation and Director of Texas State Parole. “This action research is one of many tools needed to shepherd true community corrections reform, and is expected to benefit justice-involved individuals as well as families and communities.”

“There are many ways policy makers need to tackle mass supervision in America so we are not spending hundreds of millions of dollars incarcerating people for non-criminal, technical probation violations. One of them is for probation administrators and state and local justice systems to use their discretion wisely and in line with best practices that safely reduce incarceration for frivolous misbehavior. The 10 Reducing Revocation Challenge sites are the tip of the spear in such efforts who will hopefully lead by example for other jurisdictions around the country in the years to come.” Vincent Schiraldi, former Commissioner, New York City Probation, Co-Director, Columbia University Justice Lab, Co-Chair EXiT: Executives Transforming Probation and Parole.

For more information on the Reducing Revocations Challenge please visit https://islg.cuny.edu/sites/our-work/reducing-revocations-challenge/.

 

Chief justice: ‘We were tough on drugs, but now we need to be smart’

Full Article

Herald-Times on 09/25/2019 by Laura Lane

Indiana’s top judge says nothing in her lifetime has hit society and the courts as hard as the festering opioid epidemic that has swept the nation.

“This opioid crisis caught us all sort of flat-footed. We saw the addiction wave coming and we have not been good at addressing it.”

That was Indiana Supreme Court Chief Justice Loretta Rush speaking Tuesday at the conclusion of the third annual South Central Opioid Summit. The daylong event at the Monroe Convention Center was sponsored by the Monroe County Opioid Advisory Commission.

Rush co-chairs the National Judicial Opioid task force, created in 2017 to focus on tangible recommendations to courts to support judges in their effort to help people recover from opioid use disorder and embrace a life without drugs.

She reminded the 100 hearing her speak that substance abuse disorder continues to be an issue driving social issues and the criminal court system. Courts are the primary referral system for people struggling with addiction, she said, and people illegally using opioids are 13 times more likely than others to be charged with a crime.

“We need a model to deal with addiction, and we should have developed it during the years of crack cocaine,” Rush said.

Increases since 2016 in what are called “problem-solving courts” — 81 to 112 — and in family recovery courts — from 6 to 18 — reflect the progress the state is making.

She cited numbers showing that while Monroe County is not an epicenter for opioid use, the prevalence might startle some people. State statistics show that from 2011 through 2017, at least 136 Monroe Country residents died from opioid overdoses, and that more than 32 million opioid-based pills were prescribed to 126,000 people.

Rush contends it’s long past time for an attitude change where substance use disorder comes into play. “We were tough on drugs, but now we need to be smart. It’s more important to be smart,” she said. “Addiction is a disease. I truly believe addiction is a disease.”

(Monroe Circuit Court) Probation Department Donates to Vets

Herald Times

The Monroe Circuit Court probation department staff recently donated items for local veterans. Pictured are Elizabeth Wright, left, director of the VA’s Bloomington Community-Based Outpatient Clinic, and Richard Greco, Monroe Circuit Court’s Veterans Treatment Court case manager.

In celebration of the 2019 Pretrial, Probation and Parole Supervision Week, the Monroe Circuit Court probation department staff completed a service project for veterans.

The department collected donations to provide gift bags to local veterans in collaboration with the Department of Veterans Affairs Bloomington Community-Based Outpatient Clinic and the VA’s Bloomington Mental Health Clinic.

The gift bags contained numerous hygiene products, household items, reading materials, military souvenirs and gift cards for food.

Personalized notes and letters were included to let the veterans know they are valued.

The department donated a total of 74 gift bags to veterans.

A majority of the donations were provided to veterans visiting the VA’s Bloomington Community-Based Outpatient Clinic.

The remaining donations were provided to the VA’s Bloomington Mental Health Clinic to assist low-income and homeless veterans utilizing the Department of Housing and Urban Development and Housing Choice Voucher assistance program services.