The Indiana Court of Appeals has rebuked Marion Superior Court Judge James Payne for a sentencing policy the appellate court found to be wrongly sending some local juveniles to the Department of Correction.
Marion County Chief Public Defender David Cook: "The juvenile court is awfully quick to send kids to the Department of Correction."
The decision in the case of E.L. vs. State (minors" names are not disclosed in court records) reversed a Marion County Juvenile Court sentencing of a 17-year-old girl after she admitted to the misdemeanor offense of disorderly conduct. Although the crime was minor, and the girl"s school and home record were exemplary, juvenile court magistrate Carol Orbison said that she was obligated to sentence E.L. to the Department of Correction. In open court, Orbison cited a policy set by Judge Payne that juveniles like E.L., who had been released from the Indiana Girls School two and a half years earlier, must be re-committed upon any subsequent offense.
Marion County continues to far outpace all other counties in the state, both per capita and in sheer numbers, in juveniles committed to the Department of Correction. As of March 28, 680 Marion County children were incarcerated in institutions like the former Indiana Boys School, now known as the Plainfield Juvenile Correctional Facility.
Indiana House Ways and Means Chairman William Crawford (D-Indianapolis) has long expressed concern about the $38 million a year Marion County"s juvenile imprisonment costs the state and county, as well as the human cost to the children handed the harsh sentences. Payne, who oversees the county"s juvenile court, has attributed the high local imprisonment rate to the amount of serious crime in Indianapolis. ("Marion County Leads State in Incarcerating Kids," NUVO, Jan. 2)
But the Court of Appeals" opinion in the E.L. case, along with other appellate court decisions and local lawyers" observations, suggests Payne is sending far too many local children to the juvenile equivalent of prison. As quoted in the E.L. court record, Orbison expressed doubt about the wisdom of sending the girl to the Department of Correction, but said her hands were tied by Payne"s policy: "So, I"m obliged by this court"s policy for the reasons that I"ve given you, to follow that policy," Orbison told E.L. "And I pray, I pray to the good Lord that this will not change your attitude and the course that you set for yourself."
The Court of Appeals criticized Payne"s unwritten rule of re-incarceration, noting that Indiana law dictates the opposite presumption in juvenile cases. "Commitment to the Department of Correction should be resorted to only if less severe dispositions are adequate," Judge Ezra Friedlander wrote in the 3-0 decision. "The juvenile court"s policy, which effectively creates a presumptive disposition, runs counter to the court"s duty to make an individualized determination in each case."
E.L."s attorney, Jan Berg, says the reversal could not make up for the injustice done to her client. By the time of the appeal ruling, E.L. had already served six months in the Department of Correction. "It was just wrong," Berg says. "It is one of those cases where you hang your mouth open and say, "I can"t believe they did that to this girl." This girl had everything going in the right direction, but the policy was mandatory and the court didn"t look at any of those factors. That"s the exact opposite of what a juvenile court is supposed to do."
"Predictability and certainty"
The E.L. appellate decision was one of three issued in an 18-day span in February and March, all overturning Marion County juvenile court sentences as unduly harsh. That Court of Appeals pattern is unusual, but Marion County"s chief public defender David Cook says the decisions reflect the daily realities of Payne"s court. "Our general feeling is that the court is awfully quick to send kids to the Department of Correction without exploring all viable alternatives to incarceration," Cook says. "The statute says the D.O.C. is supposed to be the last resort, but that does not match the policy we have observed."
Payne says it would not be appropriate for him to comment specifically on the E.L. decision, but acknowledges that he issues sentencing prescriptions - "more guidelines than policies," he says - to the magistrates and pro tem judges in his court. "There are four court rooms in juvenile court, and I try to make it so that there is a similar result coming from each court," Payne says. "I don"t want to make it a roll of the dice on what kind of result will occur. For 18 years, I have tried to obtain predictability and certainty in judicial decisions, just like courts have done in adopting parenting and child support guidelines."
Payne would not comment on the existence of a specific guideline about automatically returning offenders to the Department of Correction after a new offense, except to note that the original ruling in such cases includes a finding that alternatives to incarceration were not appropriate.
Payne may be under more pressure to curb Marion County"s high juvenile incarceration rate if budget provisions included in Indiana House Bill 1001 become law. The House budget bill places a population limit on juveniles housed at the Department of Correction.
The population limit, calculated on a per capita basis, places Marion County at a maximum of 183 juvenile inmates each day, barely a quarter of the number of county juveniles currently held in the Department of Correction. Marion County could exceed its limit only by purchasing extra space from counties not using their full allotment. The Indiana Senate recently removed these population limits from its version of the budget bill, but Crawford says he still hopes to get the provision reinstated before a new budget is approved.
Since her ruling in the E.L. case, Carol Orbison has left the juvenile court and now works for the state attorney general. Orbison, also a longtime prosecutor of child abuse crimes, says there were many policies in the juvenile court that constrained individual case decisions during her seven years as a magistrate. "I think Judge Payne"s desire to have consistency between the courts is a good one," she says. "However, I think the magistrates should have the flexibility to deviate from the policies depending on the child"s circumstances and the case situation."
Orbison said there were several cases where she thought justice would have been better served if she was allowed to make rulings based on her evaluation of the individual child. Although Orbison agrees with Payne that Marion County"s rate of violent crime contributes to the county"s high juvenile incarceration rate, she says the local crime rate is not completely to blame. "I think this particular policy [of automatically re-sending juveniles to the Department of Correction] is a contributing factor, too," Orbison says.
Crawford, a longtime critic of Payne, is more direct. "I"ve said all along that Marion County"s juvenile incarceration policy is a failed strategy, and I"m glad the Court of Appeals is recognizing that," he says. "Our local policy is just dead wrong."
Kudos to "The Star"
The Indianapolis Star editorial page has taken up the cause for a raise in the state income tax. Opposing the planned state cap on Medicaid spending but acknowledging the fiscal crisis that inspired the cap, The Star wrote on Tuesday: "The state has reached the point where a tax increase is necessary. Indiana must not resolve its budget problems by ignoring the needs of its sick and elderly."
Given the editorial team"s libertarian leanings, a call for a tax increase stands out. Given Indiana"s cash-strapped dilemma, it is no secret that legislators and the governor would raise taxes in a minute if they believed there would be no political fall-out from doing so. The Star, the state"s largest newspaper, has done its part to lend some electoral cover. Now we"ll see if lawmakers are reading and heeding.