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Lower Pot Penalties Favored in Statehouse

Commission recommends new felony to target large growing operations.

by Maureen Hayden CNHI Statehouse Bureau

INDIANAPOLIS — The head of the Indiana State Police may have surprised legislators last week when he told a state budget committee that he personally favored legalizing marijuana, but the push to re-think Indiana's pot laws isn't new.

A legislative commission set up three years ago to review Indiana's criminal code is recommending that the Indiana General Assembly overhaul the state's drug laws to reduce penalties for low-level marijuana and other drug crimes.

The commission's recommendations don't include legalizing pot or even decriminalizing possession of small amounts of the drug. But they do call for reducing some felony-level marijuana crimes down to misdemeanors, which would significantly reduce penalties.

Under current Indiana law, for example, anyone caught for the second time possessing less than 10 grams of marijuana (about 20 to 30 joints) can be charged with a class D felony, which carries a one-to-five year prison term. The commission calls for a second-time offense to be a class A misdemeanor, with no more than a year's jail time.

In addition to pushing for some less-harsh laws for low-level marijuana offenses, the commission is also calling for Indiana legislators to create a new felony crime which would allow police to go after the "grow houses" — large-scale operations where marijuana is illegally grown and manufactured in bulk.

The recommendations were crafted by a work group of the Indiana Criminal Code Evalution Commission, whose members included judges, legislators, prosecutors, public defenders, probation and prison officials.

The commission ended its work in October, but its recommendations are likely to be contained in a sweeping sentencing reform bill to be introduced in the 2013 session.

The proposed changes are finding some traction among the Republicans who control the Statehouse and who cite concerns about the rising costs of prosecuting and incarcerating low-level drug offenders. Drug offenses have accounted for much of the rise in Indiana's prison population over the last 20 years, according to Department of Correction numbers.

"I think we have to do something different than what we've been doing," said state Rep. Heath VanNatter, a conservative Republican from Kokomo. "We need to be spending our prison dollars more effectively than putting people away for minor violations like some kid caught with a joint in his pocket."

Indiana doesn't appear to be posed to follow in the footsteps of Colorado and Washington, where voters passed measures in November to allow adults to have small amounts of marijuana.

After Indiana State Police superintendent Paul Whitesell made his surprise comments at a state budget committee hearing last week — when he said that if it was up to him, he'd legalize marijuana and tax its sales — Indiana's newly elected governor slapped down the idea.

In a statement released to the Associated Press, a spokeswoman for Gov.-elect Mike Pence said Pence opposes decriminalizing marijuana.

That may put a damper on a proposal put forth by state Sen. Brent Steele, the powerful chairman of the Senate Judiciary Committee. The conservative Republican wants to decriminalize the possession of small amounts of marijuana, turning possession of 10 grams or less into an infraction, which is akin to a speeding ticket.

Steele is expected to carry the Senate version of the sentencing reform bill that will propose other changes to the state's marijuana laws that may mirror much of what the Criminal Code Evaluation Commission proposed.

For example, Steele has already indicated he supports the idea of doing away with the "drug zone" laws that enhance penalties for people caught with small amounts of marijuana or other drugs within 1,000 feet of a school, daycare center or park.

Like VanNatter, Steele cites rising costs to the criminal justice system from low-level drug offenders who may be better served by community-based treatment programs.

Joel Schumm, an Indiana University law professor, said Indiana legislators may be emboldened by what other states have done in recent years to lower drug penalties. Both Ohio and Kentucky, for example, have lowered their penalties while giving prosecutors and judges more discretion to send drug offenders into treatment programs.

"They've seen that other states have loosened their laws and terrible things haven't happened," Schumm said.

Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at maureen.hayden@indianamediagroup.com.

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County drug case or arrest in Denton County, contact the offices of Tim Powers today. There is no charge or obligation for the initial consultation. 940.580.2899.

*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.