Indiana Law Journal Volume 44 Issue 3 Article 4 Spring 1969 Penal Code Reform in Indiana: Piecemeal Amendment is Not the Answer Richard C. Lague Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the State and Local Government Law Commons Recommended Citation Lague, Richard C. (1969) "Penal Code Reform in Indiana: Piecemeal Amendment is Not the Answer," Indiana Law Journal: Vol. 44 : Iss. 3 , Article 4. Available at: https://www.repository.law.indiana.edu/ilj/vol44/iss3/4 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. NOTES PENAL CODE REFORM IN INDIANA: PIECEMEAL AMENDMENT IS NOT THE ANSWER If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works gross injustice to those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire field is more at stake for the community or for the individual.' I. INTRODUCTION The above passage by Professor Wechsler in no way overstates the imperativeness of having a penal code that is not only clear, concise and effective, but which also reflects current social and judicial attitudes to- ward justice and individual rights. The present Indiana penal code2 may be said to violate these ideals frequently. Reform of the entire Indiana penal code last occurred in 1905.' The procedure used since that time for modernizing the code has been the evolutionary process of piecemeal amendment which has been effectuated by the Indiana State Legislature, whose time for such activity is strictly limited by virtue of the sixty-day biennial session. Many of the individual statutes which have undergone this modernization process adequately reflect contemporary social attitudes" and, therefore, escape criticism levied against their less defensible bedfellows.' Regrettably, however, this patchwork treatment has left the present code, when viewed as a cohesive entity, fraught with defects and disorder which cannot be remedied by sporadic legislation or judicial interpretation. Of course, to 1. Wechsler, Challenge of a Model Penal Code, 65 HARv. L. REv. 1097, 1098 (1952). 2. IND. ANN. STAT. tit. 9 (Bums 1956 Repl.) (containing material on criminal procedure) ; IND. ANN. STAT. tit. 10 (containing material on criminal offenses); IND. ANN. STAT. tit. 11 (containing material on fish and game); IND. ANN. STAT. tit. 12 (containing materials on intoxicating liquors) ; IND. ANN. STAT. tit. 13 (containing material on prisons and reformatories). 3. The revision was made effective on April 15, 1905 by the Indiana Acts of 1905. 4. E.g., IND. ANN. STAT. § 10-3028-41 (Burns Supp. 1966) (Offenses Against Property Act). The enactment of these statutes on theft offenses was the first major revision of a section of the penal code since 1905. These statutes reflect many of the suggestions made in the MODEL PENAL CODE (Prop. Off. Draft 1962) [hereinafter cited as MODEL PENAL CODE]. 5. See Foust Some Thoitghts on Criminal Code Revision, 1 IND. LEG. FoRum 4 (1967) [hereinafter cited as Foust]. INDIANA LAW JOURNAL expect penal code revision to eliminate all problems encountered in administration of the criminal law would be naive. Although com- plexity and obsolescence result in injustice, it does not follow that simplicity and modernization will eradicate injustice; nonetheless, care- ful and sophisticated effort would not be unavailing.6 The complexity and volume of material pertinent to penal code revision places exhaustive treatment of the entire subject or even one specific area beyond the scope of a single comment. This survey is intend- ed to accomplish a three fold purpose: to create awareness of why an obsolete penal code should be revised, by offering examples of the various ways in which obsolescence may infringe upon individual rights; to refute some objections presently levied against revision, such as excessive expense, confusion caused by transition, and adequacy of the present code; and to suggest various alternative means by which the task of revision might be initiated and accomplished. II. WHY REFORM IS NECESSARY A. Obsolete offenses, penalties and procedures Much recent material has drawn attention to the obsolescence of statutes which are particularly repugnant to our sense of fairness.! A host of statutes particularly susceptible to this line of criticism 's revealed by a casual survey of Indiana's penal code. Obsolete statutes may be classified into four major categories: those failing to reflect the needs of modern times, for example, Indiana's riot conspiracy statute which allows conviction only if three or more par- ticipants conspire at night or while wearing white caps, masks or other forms of disguise;' those in which penalties prescribed no longer fit the relative seriousness of the crime by modern standards, for example, a penalty of a one hundred dollar fine and six months in jail for being found intoxicated in a public place9 or a penalty of a 500 dollar fine and six months imprisonment for commission of adultery (fornication) by 6. The products of painstaking revision efforts in other states include: ILL. ANN. STAT. ch. 38 (Smith-Hurd 1964); MIcH. REV. PEN. LAW (Final Draft, West 1967); MINN. STAT. ANN. ch. 609 (1964); N.M. STAT. ANN. ch. 40 (1964); N.Y. REv. PEN. LAW (McKinney 1967). See also MODEL PENAL CODE. 7. See Brumbaugh, A New Crinmnal Code for Maryland, 23 MD. L. REv. 1 (1963) ; Foust, at 4; Israel, The Process of Penal Law Reform,-A Look at the Proposed Michigan Revised Criminal Code, 14 WAYNE L. REv. 772 (1968); Joost, The Need for Recodification of the Criminal Laws of Massachusetts, 3 PORTIA L.J. 45 (1967) ; Packer, The Case for Revision of the Penal Code, 13 STAN. L. REV. 252 (1960). 8. IND. ANN. STAT. § 10-1506 (Burns 1956 Repl.). 9. IND. ANN. STAT. § 12-611 (Burns 1956 Repl.). PENAL CODE REFORM consenting adults ;o those which are no longer enforced, for example, Indiana's toy pistol statute providing for a maximum penalty of a fifty dollar fine and twenty days in jail for selling or exposing for sale any toy cap gun;' and overlapping statutes which provide numerous diver- gent penalties for the same or similar acts, for example, Indiana's assault and battery statutes which could conceivably allow a charge to be brought for the same assault and battery under as many as nine different statutes." Statutes in each of the foregoing categories pose serious threats to individual rights. An examination of the most obvious of these threats will illuminate the absurdity in the assertion that the only harm in obsolete statutes is the excessive space required in the code book. B. Threat to Individual Rights Equal Protectionof the Law There has been little reluctance by the courts to use the equal protection clause of the federal constitution ' to declare discriminatory laws unconstitutional. 4 However, the equal protection problem created by seldom enforced statutes arises at points prior to litigation--when the decision must be made to arrest an individual for a violation, and when the decision must be made to prosecute. 5 Outdated and seldom enforced statutes have the serious potential of becoming tools by which law enforcement agencies, through either in- advertence or design, can coerce and harass certain individuals. For example, the only person ever prosecuted under the Georgia income tax perjury statute was Martin Luther King.' A similar example involved a "Massachusetts blasphemy statute that had lain dormant for a hundred years until it was dusted off and invoked against some sympathizers of Sacco and Vanzetti."'" Obsolete Sunday Blue Law statutes are also common devices for harassment for racial, religious or economic 10. IND. ANN. STAT. § 104207 (Bums 1956 Repl.). 11. IND. ANN. STAT. § 10-4703 (Burns 1956 Repl.). 12. IND. ANN. STAT. § 10-701 to 705 (Burns 1956 Repl.). See Foust, at 23. 13. U. S. CONST. amend. XIV, § 1. 14. The leading case on the right of an individual to nondiscriminating enforce- ment and administration of the laws is Yick Wov. Hopkins, 118 U.S. 356, 373-74(1886): Though the law itself be fair on its face and impartial in appearance, yet, If it is applied and administered by public authority with an evil eye and an unequal hand, so practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. 15. Kartozian, Dead Law--Dead Letter? An Analysis of the Problem of Obsolete Laws in the Penal Codes of the United States, 2 PORTIA L.J. 75 (1966). 16. N.Y. Times, May 29, 1960, at 1, col. 2. 17. N.Y. Times, Aug. 29, 1928, at 8, col. 1. 428 INDIANA LAW JOURNAL reasons.' 8 Several inadequate defenses appear available to persons subject to prosecution for these statutes. 9 A denial of equal protection through discriminatory enforcement might be established. However, not only may the necessary facts be difficult to prove, but examination of court deci- sions shows that in many cases the courts do not permit the issue to be raised as long as the statute remains in the penal code and is therefore considered the law.2" Another defense conceivably available, but even less plausible than equal protection, is the doctrine of desuetude.2 Although this doctrine has received some attention in recent years, it is far from being accepted as valid.22 The general policy of refusal to recognize defenses to violations of desuetudinal or obsolete statutes is based on the courts' fear of usurping what is considered the legislative function of repealing statutes.