Indiana Public News Radio has an article on the General Assembly’s study committee getting recommendations from an advocate to reduce underage drinking:

She told a summer study committee today that she wants substantial reforms – like raising the alcohol tax and instituting a social host law. Social host laws are those that punish adults who knowingly allow underage drinking on their property.

I have an idea. Lower the drinking age. I can almost guarantee that will reduce the incidence of underage drinking. It’s one of those malum prohibitum things.

This was part of the Senate Commission on Mental Health and Addiction’s September 6 meeting (pdf).

This was an informal slogan of mine at the Legislative Services Agency. Legislators got impatient. If you’re rushing bill drafts out the door, given limited time to proofread, things are going to get missed. My personal nightmare incident had to do with some telecommunications legislation. The staffer from the Senate kept coming back with changes and requesting revision after revision as she or her bosses changed their minds. The last request came when I was already down at the committee room waiting for the hearing to start. So, we ran back to the office, and I did my best to crank out the latest version for the committee hearing. A “ctrl-v” got mixed up with one of the “ctrl-b” keystrokes, and we ended up with a big chunk of text duplicated. That duplication was noticed at the committee hearing, and the thing had to be scuttled for the day. I took the heat on that one and have always resented it, feeling like the staffer or whoever couldn’t make up their *$&&’n mind should have taken the blame.

Anyway, I have no idea what the situation was behind the FSSA “elimination” that’s in the news lately. Eric Bradner of the Evansville Courier Press has a follow up on the story which was broken by the Fort Wayne Journal Gazette. The underlying problem is that the law creating the Family and Social Services Administration is structured to expire every couple of years. (I’ve been told that the back story on this is that it was requested by legislators who didn’t really want the agency created in the first place; the expiration would theoretically require some consideration as to the agency’s continued existence every few years — despite that, I never heard any serious discussion about dissolving it, however.) So, the default for legislation is for it to go into effect on July 1 of the year. So, too, with the repeal of the statute that makes FSSA expire. Problem was that the sunset statute was effective June 30, 2011. So, theoretically, the agency went out of existence before the statute was repealed.

But, it’s a funny thing about legislation. When you draft a few tons of it, it becomes abundantly clear that there is nothing magic about it. It’s just words on a page. If everyone ignores the enacted legislation, it has no more effect than the mass of paper you throw in the garbage every day. That’s basically what has happened here. The governor has issued an executive order saying, “that’s not what they meant.” And, since everyone worth listening to is going to agree with that, this approach should work. (It becomes controversial if the approach is later used to justify a similar approach when the intent is not at all clear.)

Bradner says:

It’s not the only mistake that’s been made, though. Legislators have also discovered errors in new laws that govern project labor agreements and that allow felons to seal the records that show their checkered pasts.

These problems demonstrate what happens when the bill-drafting Legislative Services Agency, and the lawmakers responsible for the ideas LSA’s lawyers put to paper, are rushed.
. . .
With so many changes to make, it’s no wonder a few corrections are needed. This is what can happen when a part-time Legislature where many of the 150 members are not lawyers takes on such a huge agenda.

There are professions where mistakes are not acceptable; where they come with far-ranging consequences. Bad police work can jeopardize a huge case. Careless doctors can end lives.

That’s why we are glad to see those people sacrifice speed and efficiency for laserlike attention to every single detail.

We should demand the same focus from the legislators responsible for making the laws by which more than 6 million Hoosiers must abide — even when that means slowing down.

I’ll add that getting legislators to slow down and listen felt like a major task even during ordinary years. A lot of them were busy, “big picture” types without a lot of patience for detail. There were others who were not too busy and spent a great deal of time poring over the details. One of the legislators who comes to mind as being very conscientious in this regard is Senator Pat Miller — I’ve had unflattering things to say about her policy preferences, but I’ll never accuse her of being inattentive to detail.

When the Democrats boycotted the General Assembly, we were treated to a lot of faulty analogies about how, if this were private business and those guys didn’t show up for work, they’d get fired. Well, in the wake of two court rulings finding big Constitutional problems with two major pieces of legislation, we can add another. If workers in private business were producing this much defective product, exposing their employers to lawsuits, they’d also get fired.

In particular, an order from Judge Sarah Evans Barker in Buquer v. City of Indianapolis (h/t Indiana Law Blog) enjoining sections 18 and 19 of SEA 590 concerning immigration.

Specifically, the two portions of that law which Plaintiffs challenge are: Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. Plaintiffs also challenge Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

In addition, Judge Tanya Pratt entered a preliminary injunction to parts of HEA 1210 based on the notion that Planned Parenthood was likely to succeed on the merits because Planned Parenthood was a qualified provider of Medicaid services and federal law preempts state law on funding Medicaid qualified providers.

This dispute can be distilled into a single question: Can the State of Indiana exclude PPIN as a qualified Medicaid provider because PPIN performs abortion services that are unrelated to its Medicaid services? The Commissioner argues that Indiana is free to exclude PPIN as a Medicaid provider because states have the authority to determine what constitutes a “qualified” provider. PPIN sharply disagrees, arguing that the defunding provision illegally limits a Medicaid recipient’s choice of providers.
. . .
Central to the present dispute, a state plan must provide that “any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide him such services…”. 42 U.S.C. § 1396a(a)(23) (emphasis added) (hereinafter, “‘freedom of choice’ provision”)
. . .
As enacted, the defunding provision of HEA 1210 prohibits PPIN from receiving reimbursement from Medicaid for services that would otherwise be reimbursable.

The judge was also asked to enjoined the provisions requiring doctors to say certain things to patients, including that life begins at conception and that fetuses can feel pain.

She declined to enjoin the requirement that doctors tell patients that “human physical life” begins at conception; among other things declining Plaintiff’s request that she determine that phrase had theological and moral connotations.

She did enjoin the provision requiring doctors to tell patients about fetal pain. “[T]he Court has been given no evidence to support the finding that within the scientific community even a minority view exists that contends pain perception is possible during the first trimester of pregnancy – the time during which PPIN exclusively performs its abortion services.”

Cast your memory back, dear reader, to the unforgettable summer of 2005. Lynndie England struck a blow for women’s rights, and a young Cardinal Ratzinger taught us how to laugh. It was also the time when the Supreme Court decided the case of Kelo v. City of New England. Howls of outrage could be heard at the prospect of allowing private interests to benefit from the government’s condemnation powers. Indiana legislators held committee meetings and everything agreeing that use of eminent domain for private interests was bad, mmkay?

Flash forward to 2011. Those howls seem to have diminished to the point where the Indiana General Assembly seems to feel it is safe to take private land for the benefit of carbon dioxide transmission pipeline owners. Specifically, SB 251 creates a new Article IC 14-39 entitled “Eminent Domain for Transportation of Carbon Dioxide by Pipeline.”

By “carbon dioxide pipeline” the General Assembly means “the part of a pipeline in Indiana, including appurtenant facilities, property rights, and easements, that is used exclusively for the purpose of transporting carbon dioxide to a carbon management application, including sequestration, enhanced oil recovery, and deep saline injection, within or outside Indiana.”

A carbon dioxide pipeline company can apply to DNR for a certificate of authority. The application has to include, among other things, the parameters of the pipe and the location of the pipeline. If DNR makes certain findings — none of which include, by the way, a finding that the pipeline is a good idea or is not detrimental to the surrounding areas — it is required to issue a certificate of authority. In its submission, the pipeline company can designate information as confidential (but not the location or parameters of the pipeline.)

The certificate of authority that DNR is required to issue under those circumstances must include authority to use any designated public-right-of-way and to take and acquire possession by eminent domain of any property or interest in property for the construction, maintenance, or operation of a carbon dioxide transmission pipeline. The company is required to pay 125% of fair market value for agricultural land and 150% of residential property.

Deanna Martin, writing for the associated press, has an article on how the Indiana Senate has been dodging public hearings on controversial provisions they’re jamming in bills at the last minute.

If the legislation is such a good idea, critics ask, why not go through the typical public hearing process?

“There are a lot of highly politicized issues that are getting crammed down the public’s throat,” said Julia Vaughn, with the government watchdog group Common Cause Indiana. “It seems like every hot-button issue that a conservative special interest group holds dear is being raised in the final days.”
. . .
The Senate put a measure to cut funding for Planned Parenthood into a bill tightening abortion restrictions. It inserted into an elections bill a provision to allow GOP Gov. Mitch Daniels to appoint a new secretary of state if Republican Charlie White, who faces charges of voter fraud, is found to have been ineligible — a move Democrats branded a power grab. And it changed the budget to provide a way to fine boycotting lawmakers, a direct response to the House Democrats’ walkout.
. . .
Simpson chalks up the Senate’s recent actions to new, more conservative members who she said may not understand the Senate’s history and tradition of civility.

Bob Garton likely would not have permitted this kind of thing when he controlled the Senate. The Charlie White issue, in particular, looks like something Sen. Garton absolutely would have blocked; given that it’s a clear attempt to affect the outcome of current litigation.

Sen. Long probably would like to follow in the tradition of his predecessor, but he doesn’t have nearly the level of control that Garton — with the support of Morris Mills, Larry Borst, and Joe Harrison — had over the years. Long has to deal with a more ideological contingent that isn’t as concerned about the niceties of the legislative process.

There is lots of interesting stuff going on at the legislature. Indiana is passing an abortion law that makes doctors pretend that abortion causes breast cancer and advise their patients accordingly. Efforts are underway to deprive Planned Parenthood of any state funding. They’re looking to pass “Charlie’s Law” – which would retroactively save the Republican bacon if Charlie White turns out not to have been a legitimate candidate because of his vote fraud. (Under current law, it looks like the second highest vote recipient would take the office – under the proposed law the Governor could appoint someone who didn’t receive any votes.) I believe I read that there was a proposal to give home schoolers tax breaks for items that public schoolers sometimes have to pay for but don’t get tax breaks for. Charter school/voucher legislation has gone to the governor. is going to conference committee. (Jumped the gun on the governor.) New voting districts are being formed.

And, lots of other stuff. But, I’m busier than a one-armed paper hanger at work. So, I’m afraid I’m not much help in keeping anyone up to date. So, talk amongst yourselves.

About a year ago, I flagged a good post over at Advance Indiana that discussed Rep. Eric Turner’s (R-Marion) investment in his son’s building that profited from leasing space to ACS for a call center used in its welfare eligibility privatization operation. (This issue was investigated by Angela Mapes Turner of the Fort Wayne Journal Gazette.)

Today, Leo Morris discusses a report by Heather Gillers for the Indianapolis Star. Seems Rep. Turner and his son, Zeke, are involved in another conflict situation. Rep. Turner is invested in his son’s company which a nursing home developer. That company, represented by a lobbyist who is Turner’s daughter and a former FSSA attorney, is opposing legislation that would limit nursing home construction.

On a completely different subject, “venal” is a word I learned when I worked for the General Assembly.

Mary Beth Schneider, writing for the Indianapolis Star, has an article reporting on Gov. Daniels statements to the effect that the House should pull back on SB 590, the Senate’s version of an Arizona style immigration law.

Gov. Daniels cautions against an “emotionally satisfying” bill that is impractical. Daniels is apparently recommending an approach that puts less of a burden on local law enforcement but still targets employers that knowingly employ immigrants who are in the country illegally. That sounds good, as far as it goes, but the devil is alway in the details. Given his history, you have to think that Gov. Daniels is aligned with the big business wing of his party which is at odds with the nativist element in his party on this issue. The nativists know they’re getting screwed economically and immigrants are convenient targets of that sort of discontent; preferably illegal immigrants – but that sort of discontent isn’t generally known for precision targeting. Big business makes more money if it pays its workers less.

Prosecutors are articulating a response to the Governor’s position on the state prisons and prison reform, specifically SB 561. I’m sympathetic to the notion that we shouldn’t just be warehousing a lot of our citizens in prisons under the guise of being “tough on crime.” But, Prosecutors are making some counterpoints that are difficult to ignore. In this case, it’s a column from Delaware County Prosecutor Jeffrey Arnold (h/t Indiana Law Blog) in the Muncie Star Press.

Particularly notable is the abrupt change in the availability in space at the DOC. The governor has apparently been trying to claim that our prisons are too crowded and the rate of incarceration is growing fast. This is a pretty significant departure from a few years ago when our prisons were going to be a profit center, causing us to import 1,200 Arizona inmates to New Castle to have themselves a riot.

From the Arnold column:

The crisis? Suddenly in 2010, the citizens of Indiana were being told that the Indiana Department of Correction is beyond capacity and climbing at a rate higher than any other state in the nation. Suddenly, there is no time to devote to comprehensive reform as this crisis is so acute the need for a quick fix takes priority over comprehensive reform.

The ticking clock is a pretty standard sales technique. “Buy now! Supplies are limited! A beauty like this isn’t going to stay on the lot long; there’s another couple who has their eye on this one.”

The truth is the prison population has remained essentially stable over the last four years. On Feb. 1, the Indiana prison population was 26,873, which was exactly the same as it was on Feb. 1, 2010.

On Feb. 1, 2009, it was 26,663 and the number Feb. 1, 2008, 26,299. This represents a 2.1-percent increase since 2008. The Pew Center on States issued a 2009 report that Indiana ranks eighth in the nation for persons under parole or supervision and ranks 30th in nation for people in prison. That same report indicated from 2006 to 2008 the increase in Indiana’s prison population was 0.6 percent and Kentucky was the highest at 12 percent.

Here is the fun part: the numbers relied on by the Governor to suggest a crisis apparently include federal inmates. The federal prison population is entirely separate from the state population, and if the Governor is using federal inmates to cook the books in support of this state legislation, that would seem to cross a line. Rumor has it that the Dept. of Corrections used to have some handy online charts detailing the state prison population that have been quietly removed from the website.

The more general argument prosecutors make in response to the sentencing reform legislation is that, with all of the credit time, inmates don’t serve anything like the number of years that judge’s sentence them to. (Of course, judges presumably know this and, to the extent they have discretion, factor that into their sentences.)

According to the Legislative Services Agency, the average sentence given by an Indiana judge to a Class A felony child molester is 41 years of incarceration. Yet, the average actual time served for that same Class A child molester is 7.5 years.

I don’t much mind the fact that the actual sentence is different from the nominal sentence. Credit time provides some valuable incentives to govern the prison population while they’re incarcerated, and it might be useful in making ours more of a “reformative” system of punishment instead of merely punitive. The real question is whether we’re punishing what we need to punish and doing so at the right levels. Hyping dubious prison population statistics only undermines what might be a rational solution to a real problem.