A former Marion County prosecutor is calling for legislation to remove the incentives for prosecutors to bargain away gun charges as the Indianapolis homicide rate continues to spiral.
"If you have a violent felon and he's carrying a gun, practically nothing good can come of it," said former Marion County prosecutor Scott Newman, who helped write a 1999 law designed to reduce the murder rate by keeping violent felons found guilty of possessing firearms behind bars longer.
An Indianapolis Star review of every Marion County gun charge from 2009 to June of this year found that prosecutors dismissed 3,059 gun charges, half of which were felony counts. Possession of a firearm by a serious violent felon was dismissed in 41 percent of cases.
In at least four cases studied by The Star, charges of possession by a serious violent felon were dropped against someone who later was charged with a gun-related homicide. In all of the cases, the killers would have been in prison if they had been convicted on the earlier gun charges and given the recommended sentence.
"I'm angry that he was out," said Sylvia Tolbert of Indianapolis, whose son, James Allen III, was shot and killed by Leandrew "L-Rock" Beasley, a drug dealer with a history of gun violence, shortly after Beasley got out of prison in May 2012.
Beasley, 33, had been charged with possession of a firearm by a serious violent felon twice before, yet both times, prosecutors dropped the gun charge.
Beasley was convicted of murder and the attempted murder of Allen's cousin. He is appealing.
Prosecutors have many reasons for dropping a gun charge as part of a plea agreement.
Sometimes there is a problem with evidence or witnesses. Other times, prosecutors bargain away such a charge to get a guilty plea on another charge in which there was a victim and which carries the same penalty or a more severe one, Marion County Prosecutor Terry Curry said.
"The (serious violent felon) charge is an important weapon that we clearly use regularly," Curry said.
The Star analysis, however, showed prosecutors often bargained to a lesser charge. In 102 such cases handled by Curry in which The Star could determine the outcome, almost 75 percent resulted in a plea to a lower charge.
Newman said possession of a firearm by a serious violent felon is not classified as a "crime of violence" for sentencing. That means judges aren't compelled to sentence the charge consecutively, so criminals can serve the gun sentence at the same time as another charge.
"It's a real weakness," Newman said. "This is the banana peel that this statute is standing on."
David Powell, executive director of the Indiana Prosecuting Attorneys Council, said the serious violent felon charge needs to have tougher consequences. But he isn't sure the Legislature wants to address the issue after just revising the criminal code.
Still, Powell said, changing the one law might be possible, especially as Indianapolis' murder rate nears a seven-year high.