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March 31, 2013

Statehouse debate over pot penalties isn’t over

Portage senator vows to bring bill back next year.

INDIANAPOLIS — The politics of pot may keep Indiana lawmakers from rolling back the state’s tough marijuana laws this session, but it won’t eradicate the push for decriminalization.

State Sen. Karen Tallian, a Democrat from Portage, has vowed to bring back a bill next year that would turn most marijuana possession offenses into an infraction, the same as a speeding ticket.

Tallian is convinced her proposal, first introduced two years ago, is gaining traction among the public — and with some conservative legislators — despite opposition from Republican Gov. Mike Pence.

“Just look the polling on this issue,” Tallian said, referring to recent polls that show increasing support among Hoosiers for lowering pot penalties. “The public is in favor of this.”

Late last week, in response to Pence’s criticism of legislation that rewrites Indiana’s criminal code to lower drug penalties, a Senate committee amended the bill to make punishment for marijuana crimes tougher than the legislation’s Republican authors had originally proposed.

“The governor is the only one who’s been talking about tougher penalties for drug crimes,” said Tallian, a lawyer and grandmother. “Across the country, the train is moving in the opposite direction.”

Fifteen states have reduced marijuana possession to a fine-only offense. This year alone, legislative chambers in four states have passed measures to reclassify minor marijuana offenses as non-criminal violations, punishable by a fine only.

Nearly a dozen other states are currently considering legislation to legalize the consumption of marijuana by adults and regulate its retail production and sale. Two states that have legalized pot for recreational use by adults are looking at ways to tax it.

The Indiana General Assembly wasn’t ready to go that far, but it had been moving to lessen pot penalties this session.

In February, the Republican-controlled House approved House Bill 1006, which rewrites Indiana’s criminal code to lower drug penalties and toughen punishment for violent and sex offenders.

The bill contained language that made most of the state’s marijuana crimes into misdemeanors. Bill supporters say the intent of the bill is divert drug users out of state prisons and into treatment programs, while reserving the prisons for the worst offenders.

Pence waited till mid-March to weigh in on House Bill 1006 and did so at a press briefing with TV and radio reporters, telling them: “I think we need to focus on reducing crime, not reducing penalties.”

In response to the criticism, the Senate courts and corrections committee amended House Bill 1006 last week, to push back up some of the marijuana penalties contained in the bill. The committee left intact the lower penalties for other drug crimes.

House Bill 1006 didn’t decriminalize possession of small amounts of marijuana, as Tallian wanted. But it almost did: One of the bill’s strongest supporters, conservative Republican Sen. Brent Steele of Bedford, chairman of the Senate Judiciary Committee, had drafted decriminalization language to add to the bill.

Steele said he backed off when he didn’t think he could get the support from the bill’s sponsors.

But both Steele and Tallian thought there was enough support for lowering the state’s marijuana penalties, which are some of the toughest in the nation.

Both cited the shift in public opinion, as evidenced in the October 2012 Howey/DePauw Indiana Battleground Poll that showed 54 percent of voters agreed with decriminalizing marijuana, while 37 percent disagreed.

Steele and Tallian also cited the relief it would provide to local courts that process more than 12,000 marijuana possession cases each year.

“What’s fair is what’s right, and this bill makes our laws more fair,” Steele said of the original House Bill 1006.

Under current Indiana law, possessing marijuana is a felony unless it’s a first-time offense or under one ounce. As originally drafted, House Bill 1006 dropped all the marijuana possession charges down to a misdemeanor level.

It also made a first-time offense of possessing less than one ounce of marijuana into a class C misdemeanor punishable with up to 60 days in jail. Currently, it’s a class A misdemeanor, which carries a penalty of up to a year in prison.

Pence was particularly critical of the original bill’s language that dropped possession of up to 10 pounds of marijuana from its current felony level down to a class A misdemeanor.

Under changes made by the Senate courts and corrections committee last week, most of the penalties have been pushed back up a level but are still lower than what the current law calls for. Possessing between one-third of an ounce and 10 pounds is now a class D felony, with a prison sentence between six months and 2.5 years.

Andrew Cullen is the legislative liaison for the Indiana Public Defender Council, which worked with the Indiana Prosecuting Attorneys Council to help craft the original House Bill 1006.

Cullen hopes the changes made by the Senate committee last week are enough to keep Pence from vetoing the bill. The marijuana drug penalties are just a small part of a massive piece of legislation that also includes tougher penalties for murderers, rapists, sex offenders, and other violent criminals. It’s the first rewrite of the state’s criminal laws since 1978.

“This is Indiana’s first opportunity to do something big in criminal justice reform in 35 years,” said Cullen. “It’s perplexing that Gov. Pence focused on minor drug offenses as his number one concern when we have the opportunity to reshape criminal justice in the state of Indiana.”

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