Posts filed under 'Crime & Punish'

Environmental Crimes Task Force - Third Meeting

On April 27, 2006, the Environmental Crimes Task Force conducted its third meeting. The Task Force was created to re-draft Indiana’s current environmental crimes statute (IC 13-30-6-1), which simply creates a D felony for any knowing, intentional, or reckless violation of any Indiana environmental law.

As I mentioned in my discussion on the Task Force’s first meeting last year:

The concern is that the statute is so overly broad that it could be found unconstitutional under the void for vagueness doctrine, the rule of lenity, and the fair notice requirement of due process.

In 2002, the Indiana Supreme Court in Healthscript, Inc. v. State (770 N.E.2d 810) found a Medicaid fraud statute unconstitutional on similar grounds. In fact, the environmental crimes statute would probably be considered even more broad and vague than the Medicaid statute that was overturned in Healthscript.

In fact, Indiana Department of Environmental Management (IDEM) Commissioner Tom Easterly has now reported that those very issues have been raised by the defense in the Department’s two most recent attempts to prosecute environmental crimes.

The Task Force’s second meeting last year was mainly occupied with a review of Indiana criminal law for members who were not familiar with it, and a comprehensive look at other states’ environmental crimes statutes. You can read more about that meeting here.

Our third meeting was another opportunity for the Task Force to narrow down our options and take a more specific direction.

The issue of prosecutorial authority came up again at this meeting. Currently, elected prosecutors have primary jurisdiction to prosecute all criminal offenses. In some instances, other offices can provide assistance – such as Secretary of State help with securities fraud cases, and Attorney General assistance with Medicaid fraud.

Although there were some suggestions to give primary prosecutorial authority on environmental cases to some statewide office, in the end the Task Force seemed to agree that local prosecutors should retain their existing authority. We may end up recommending that attorneys or investigators from IDEM should be allowed to be deputized by local prosecutors that request their assistance in cases.

The Task Force also came to a consensus that the environmental crimes portion of the Illinois Environmental Protection Act (415 ILCS 5/Tit. XII) could serve as a decent model for our work. It is drafted as a modern criminal statue – spelling out the elements of specific crimes, and differentiating between levels of intent.

However, Illinois only focuses on hazardous waste issues. We have found that most state statutes in this area are fairly limited in scope – usually addressing only one or two types of possible environmental crimes. This is probably because these statutes are usually drafted in response to some particularly outrageous incident, involving one type of crime (like toxic waste dumping).

Since we are looking at creating our statute from scratch, Indiana has the opportunity to create one of the most modern and comprehensive environmental crimes statutes in the country. Task Force member Sue Shadley suggested enumerating specific crimes in categories that correspond to existing Indiana environmental law, such as air, water, solid waste, etc. Commissioner easterly suggested possibly including a separate category for drinking water to correspond with the Safe Drinking Water Act.

My focus thus far has been in trying to make sure our statute adheres to the elements of Indiana criminal law. Unlike other states, Indiana does not have any “negligent” crimes – only those that are knowing, intentional, or reckless.

It is important that we structure the statute to conform with existing criminal law – both to encourage prosecutors to make use of the statute, and to create a clear framework for the public to understand.

The Task Force’s next meeting is scheduled for June 22, 2006. At that time we will hear feedback from Illinois officials on how they feel about enforcement of their statute. We will also begin applying the basic framework of the Illinois statute to Indiana code, and adopt more specific elements of environmental crimes.

Feel free to let me know if you have any questions or input on the Task Force’s progress.

Add comment June 9th, 2006

Only two weeks to go

There are now officially only two weeks left in the 2006 “short” legislative session. The House is working to finish consideration of Senate bills, and we have been making steady progress. Masson’s Blog has a summary of some of the bills that passed the House on third reading yesterday.

One of the bills that passed was SB 247, the bill I discussed in my last post that establishes the Indiana Intelligence Fusion Center. On second reading for the bill, the House accepted an amendment I drafted that removed some potentially dangerous language. Essentially, as drafted, the Fusion Center could have begun “collecting individual intelligence” on Indiana citizens.

The Indianapolis Star provided some coverage here:

Rep. Ryan Dvorak, D-South Bend, who successfully amended the bill, said it went too far by allowing the state to collect information that could be shared with private organizations without judicial oversight.

After the amendment passed I was able to sit down with the bill’s sponsors, Senator Tom Wyss (R-Fort Wayne), and Representative Bill Ruppel (R-North Manchester), as well as Eric Dietz, Director of the Indiana Department of Homeland Security. Together we worked out a way to allow the Fusion Center to share information with other law enforcement agencies, accept public input, and allow warnings to be given to threatened private organizations – all without endangering the privacy of law-abiding citizens.

The result was a third reading amendment that reinstated some of the additional language along with clear definitions and safeguards.

Third reading amendments may be offered just before the bill is up for final passage. They are fairly rare, and require a two-thirds majority for passage. Thanks to the cooperation of all the parties involved – the amendment passed unanimously, and the bill went on to pass overwhelmingly.

News coverage of the legislative session often focuses on the stalemates and conflict that inevitably arise. But much of the behind-the-scenes work is accomplished quietly by Members who are genuinely interested in crafting sound public policy. Most of us get along fairly well, and are able to reach compromises for the sake of good government.

Of course, the last two weeks of session are normally the most contentious. Bills reach their final stages and negotiations can escalate to a fever pitch. I am sure the coming days will be both interesting and intense.

Add comment February 28th, 2006

“Intelligence Fusion Center” amendment

IDHSToday I offered an amendment to SB 247, a bill dealing with various homeland security provisions. The portion of the bill that was problematic was in the section establishing an “Indiana Intelligence Fusion Center.”

The U.S. Department of Homeland Security has encouraged states to establish these centers as clearinghouses for the analysis and sharing of data collected by local law enforcement, first responders, and federal agencies.

SB 247, however deviated from the authorizing language that has passed in other states. Specifically, it allowed the fusion center, at the behest of the Governor, to collect “individual intelligence information” on individuals “reasonably” involved with “possible” criminal or terrorist activity.

Further, any information collected by the center could be shared with any “private organization.”

The problem here is that a fusion center is designed to act as an information clearinghouse – a place that can receive reports from various agencies and help connect the dots in the larger homeland security picture. The center is not supposed to be an active intelligence “collection” agency. Collecting “individual intelligence” could mean searches, surveillance, or wiretaps – it is not very clear.

In order to preserve the functionality of the fusion center as an important part of our homeland security apparatus, but remove any potential for warrantless spying on Indiana citizens I offered the following amendment (link to actual amendment, mark-up of what it does below):

Chapter 10. Indiana Intelligence Fusion Center
Sec. 1. The Indiana intelligence fusion center is established to:
(1) collect;
(2) integrate;
(3) evaluate;
(4) analyze;
(5) disseminate; and
(6) maintain;
intelligence information and other information to support law enforcement agencies, other governmental agencies, and private organizations in detecting, preventing, investigating, and responding to criminal and terrorist activity.
Sec. 2. (a) The department shall operate the Indiana intelligence fusion center under the direction of the governor.
(b) The department shall cooperate with:
(1) the state police department; and
(2) upon direction by the governor, any other agency or organization, including an any agency of local, state, or federal government, or a private organization.
Sec. 3. The Indiana intelligence fusion center may collect individual intelligence information only if:
(1) the individual who is the subject of the individual intelligence information reasonably appears to be involved with or have knowledge of possible terrorist or criminal activity; and
(2) the individual intelligence information is relevant to the terrorist or criminal activity.

This amendment removes the possibility of fusion center employees conducting searches or wiretaps on Hoosiers. That type of intelligence collection should be left to prosecutors and state and federal law enforcement agencies that must follow proper statutory procedures and file detailed affidavits to receive judicial search warrants.

The amendment was approved on second reading by a vote of 49-45. I believe this change helps preserve the intent behind the fusion center concept as prescribed by the federal government, while keeping sensitive information in the government’s possession, and removing the potential for any abuse or violation of our constitutional rights.

9 comments February 21st, 2006

Continuing committee work on Senate bills

Most business in the House this week is taking place in the committees, as bills that have been sent over from the Senate are being considered.

Yesterday, the Environmental Affairs Committee unanimously passed two bills. SB 22 applies pipeline safety laws to hazardous liquids and carbon dioxide fluid, and SB 146 deals with property transfer disclosure forms.

environmental committeeA third bill, SB 234, was held over for a vote at the next committee meeting. The bill deals with several aspects of environmental rulemaking, but it needs a few technical amendments, and Chairman David Wolkins (R – Winona Lake) indicated he would like time to consider more possible amendments for the bill.

Today I will be working in two more committees. The Committee on Courts and Criminal Code has the following bills on the calendar:

    SB 5 – Makes disorderly conduct within 500 feet of a funeral a Class D felony.
    SB 6 – Modifies several sex offense provisions, including lifetime parole and GPS monitoring for some offenders.
    SB 83 – Creates a mandatory D Felony for some classes of resisting law enforcement with a deadly weapon and some motor vehicle offenses resulting in death or injury.
    SB 168 – Allows a county prosecutor to refer some Medicaid related crimes to the Attorney General for prosecution.
    SB 246 – Expands definition of “sexually violent predator” among other issues. (This bill has been carried over from the last committee meeting and will be amended.)

Later in the afternoon, the Committee on Utilities and Energy will be considering these bills:

    SB 69 – Changes governance provisions of rural telephone cooperatives.
    SB 72 – Allows the IURC to meet in executive session in some instances.
    SB 353 – Creates several incentives and deductions for biodiesel and ethanol.

Some of the bills listed above may end up being held over for additional consideration, pending the outcome of committee discussion.

Add comment February 15th, 2006

Child support and elected officials

child supportThe South Bend Tribune today wrote a story about HB 1104, my bill (which I mentioned in an earlier post) that would remove from office any elected official who is more than $15,000 delinquent in child support payments:

Dvorak said the proposed legislation is really a “measure of responsibility.”

“The few (elected officials) that lack respect for their legal and moral obligations should not be entrusted with managing public programs or taxpayer dollars.”

WNDU-TV also interviewed me today for a story they titled “Dvorak introduces controversial legislation“:

Dvorak says, “I think it sets a very bad example for the rest of the citizens, when they see elected officials that are going massively delinquent in child support, and also there’s questions of trust and responsibility.”

I have also spoken with FOX28-TV about the bill, and they should be airing a story this evening, as well. (update: FOX28 story here)

If you have an opinion about this legislation, feel free to leave a comment here or let me know.

15 comments January 5th, 2006

The start of a new session and HB 1104

gavelThe House of Representatives convenes tomorrow for the start of the second regular session of the 114th Indiana General Assembly.

Two new members will be sworn in at 11am. Carlene Bottorff will be replacing her late husband, Jim Bottorff, and Dennis Tyler will be replacing the late Tiny Adams. Jim and Tiny passed away last month and will be greatly missed.

The first bill I have filed for the session is HB 1104 (not yet online, but initial draft is available here). The bill would remove from office any elected official who is more than $15,000 behind in child support payments.

Under current law, office-holders can be removed from office as a result of impeachment, felony conviction, various federal offenses (including draft-dodging and sedition), and even for “voluntary intoxication.”

Parents who fail to pay child support in other professions already face the potential penalties of losing their professional licenses, and even their driving licenses. Our elected representatives in government should face the same harsh results.

Elected officials who have failed to meet their obligations to their children have betrayed the public trust and have not lived up to their moral and legal duties. It is inappropriate for such individuals to be entrusted with taxpayer funds and the administration of laws.

The official press release on the legislation is available here.

I have four more bills that will be filed in the coming days, and I will post more about them when they are ready. I look forward to covering developments in the General Assembly this year, and welcome any feedback, comments, or questions.

3 comments January 3rd, 2006

More on the Envirnonmental Crimes Task Force

Bigeastern has posted some feedback on my previous post on the Environmental Crimes Task Force:

My opinion: remediation is no more a cure for a criminal environmental offense than it is for a bank robber, and often less so. If a bank robber pays the money back (after getting caught, of course) everybody is pretty much squared up. When an industry releases carcinogenic chemicals, how do you ‘remediate’ the people who’ve been exposed? Environmental crimes are intended to act as deterrents, especially for wrongful acts that might be highly profitable and difficult to detect. I would suggest that environmental crimes are no different than any other. The mere fact the person responsible — the criminal — may have a nice home, wear a fashionable suit, and play golf at the right country club doesn’t change a thing any more than it does for any other ‘white-collar’ crime.

Let me know if you have any input on the process that you would like to share.

Add comment December 12th, 2005

Environmental Crimes Task Force – Second Meeting

toxicThe Environmental Crimes Task Force (ECTF) held its second meeting this week. As I have written about in an earlier post, the ECTF was established to review Indiana’s environmental crimes statue (IC 13-30-6-1) and make recommendations for legislation to revise it - including a set of specific statutory standards for determining criminal violations.

On the agenda for this meeting was an overview of Indiana criminal law (pdf) and a summary of how other states handle the prosecution of environmental crimes. The state-by-state prosecution summary (pdf) was prepared by task force member Gordon Durnil, whose service under President George H. W. Bush highlighted his credentials as a conservative environmentalist – an often overlooked political position.

The task force then reviewed existing criminal statutes from other states to prepare for our work on determining Indiana’s specific needs.

A substantive discussion on the consideration of criminal penalties focused on the rationales for punishment. Some members expressed the opinion that violations of mere promulgated rules should focus more on restoration of damage caused, or forfeiture of profit gained through violations of rules, as in disgorgement. Others felt that any criminal statue would necessarily deal with more serious violations that would merit more serious punishment.

Mark Stuann suggested adopting a framework for the task force’s work that would set three priorities: 1) determine who should have prosecuting authority for environmental crimes; 2) determine specific environmental crimes and their elements; and 3) determine penalties for the specific crimes.

Chairman Kenley agreed this would be a practical framework to adopt. We then discussed working it into a timetable that would result in draft legislation being ready for presentation to the Environmental Quality Service Council by late summer 2006, and a potential bill filing for the 2007 legislative session.

With the upcoming legislative session approaching, the task force will be unable to meet until Spring. The next meeting is scheduled for the end of April, with proposed meetings every month or two after that.

I have already received some constituent feedback on this process, and would be glad to obtain more. Feel free to let me know if you have something you would like to contribute to this process.

2 comments December 9th, 2005

Sentencing Policy and management of sex offenders

hands on barsThe Sentencing Policy Study Committee convened last Friday to hear testimony on the topic of sex offender management.

Jane Seigel of the Indiana Judicial Center discussed Indiana’s participation in the Interstate Compact for Adult Offender Supervision. The Compact allows states to keep track of registered sex offenders that move across state lines.

Last month, Massachusetts became the final state to ratify the compact - ensuring comprehensive national cooperation. Before full participation in the compact, it was difficult – if not impossible – to know when sex offenders from outside Indiana decided to take up residence in our communities. Now, officials are given notice of every individual offender moving into their jurisdiction and are able to keep them under a supervision program.

Steve Johnson of the Indiana Prosecuting Attorney’s Council gave the Committee an update on the current Sex Offender Registry statutes in Indiana, and David Donahue, Commissioner of the Indiana Department of Correction made a presentation on the upcoming launch of a new website for the Indiana Sex and Violent Offender Registry. The new website will provide mapping capabilities, and all data will be fully uploaded to the National Sex Offender Public Registry.

We also heard testimony on the challenges of supervising sex offenders in different types of jurisdictions. Mike Pate from the Greene County Probation Department discussed issues relating to rural communities, and Christine Kerl, of the Marion County Probation Department talked about uniquely urban issues.

Finally, the Committee made two legislative recommendations.

The first recommendation was to authorize courts to charge fees to defray the costs of individuals placed on pretrial supervision programs.

The second recommendation was to establish “re-entry” courts (similar to existing “drug courts”) that would allow judges to supervise the conditions of inmates’ release back into the community. Allen County has operated a similar program for four years, and has reduced recidivism by 50% in the offenders it has supervised.

The Committee will resume meeting after the adjournment of the next session of the Legislature next Spring. Feel free to let me know if you would like to suggest topics for the committee’s consideration.

1 comment November 3rd, 2005

Environmental Crimes Task Force - First Meeting

envirocrimesThe Environmental Crimes Task Force held its first meeting on Thursday, October 13, 2005. The Task Force is chaired by Senator Luke Kenley, who sponsored the enabling legislation – Senate Enrolled Act 195.

Indiana’s environmental crimes statute (IC 13-30-6-1) is the topic under consideration by the committee. The law now simply allows a D felony to be charged for any intentional, knowing, or reckless violation of any Indiana environmental law. The concern is that the statute is so overly broad that it could be found unconstitutional under the void for vagueness doctrine, the rule of lenity, and the fair notice requirement of due process.

In 2002, the Indiana Supreme Court in Healthscript, Inc. v. State (770 N.E.2d 810) found a Medicaid fraud statute unconstitutional on similar grounds. In fact, the environmental crimes statute would probably be considered even more broad and vague than the Medicaid statute that was overturned in Healthscript .

The initial challenge will be determining the scope of the Task Force’s job. The first meeting was devoted to examining other states’ environmental crimes statutes, and figuring out just how much education the Task Force members need on the issues of environmental code and criminal law before beginning the meat of the work.

We have until November of 2007 to make a recommendation to the Environmental Quality Service Council (of which I am also a member). Ideally, that recommendation would be draft legislation with bipartisan support.

This will be a long-term project that involves a good deal of public testimony from all sectors before a consensus can be reached that will withstand constitutional muster.

Feel free to let me know if you have any input you would like to offer on this topic.

3 comments October 18th, 2005

Community Corrections update to the Sentencing Policy Study Committee

sentencingThe Sentencing Policy Study Committee met Wednesday afternoon to hear more testimony on community corrections programs. Julie von Arx, the Deputy Commissioner for the Indiana Department of Correction’s Re-Entry and Community Programs and Deanna McMurray, the Director of Community Corrections gave an assessment of existing programs.

Community Corrections programs are implemented in 68 counties across the state, and include programs such as Work Release, Home Detention, Day Reporting, and Juvenile Alternatives. A state budget of $27 million funds these efforts with the goal of reducing crime, and diverting offenders from the more costly Department of Corrections prison facilities.

One problem that exists with the program is a lack of statistical analysis and performance measurement. Without any measurement of results, there is no true accountability for the funding that the State provides.

Another issue is that half of the program participants are misdemeanants. If a major justification for state funding of these programs is relieving costs to the state Department of Corrections, perhaps more of the state dollars should be targeted toward adjudicating felons.

Finally, the Committee discussed the lack of integration between various community correction programs, re-entry programs, and community transition programs. Ideally, all of these efforts should be united under one umbrella to manage offenders both diverted from prison, and those returning to the community.

The Committee set a tentative next meeting date of October 28, 2005.

Add comment October 14th, 2005

Sentencing Policy and Re-Entry Programs

eminent domain 2nd hearingToday’s meeting of the Sentencing Policy Study Committee focused on collecting information about the various “re-entry programs” for offenders who are entering back into society after finishing their sentences.

Last year, 14000 offenders were released from state prisons back into our communities. Re-entry programs are designed to reduce the rate of recidivism in these offenders so they are no longer a threat to public safety, and can begin productive lives.

The Indiana Department of Correction’s official “Road to Re-Entry” program, is making strides toward becoming more effective. Small changes, such as providing released offenders with valid state identification, can have a big effect by helping them find jobs and housing more easily - and keeping them off the streets.

There are still problems with overall program monitoring. It is difficult to evaluate the effectiveness of the programs when the state does not have access to data on released offenders that re-offend, but only serve time at the county level.

These are the types of problems the Committee is trying to identify, and remedy with suggestions for legislation next session.

The Committee also heard testimony from Porter County Superior Court Judge David Chidester, who requested reconsideration of HB 1055, which was introduced last session. The bill would allow judges to charge a pretrial services fee to people charged with a felony. The fee would pay for their participation in a probationary, pre-trial monitoring program.

The Sentencing Policy Study Committee is comprised of legislators, judges, and corrections and probation officials. The next meeting is tentatively scheduled for October 12, 2005.

Add comment September 23rd, 2005


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