Bill challenging ‘noncompliant’ prosecutors advances without prosecutors’ support

A bill allowing the Indiana attorney general to step in if local elected prosecutors become “noncompliant” passed a Senate committee Tuesday without the support of public defenders or Indiana prosecutors.

The Senate Corrections and Criminal Law Committee advanced Senate Bill 200 on a 5-3 vote. The legislation was introduced by Sen. Mike Young, the Indianapolis Republican who chairs the Corrections Committee.

According to Young, the idea for SB 200 came from prosecutors in large jurisdictions such as Boston and Chicago who have announced “policies” against prosecuting certain crimes. Young read a list of 15 such policies to committee members, including decisions not to prosecute larceny up to $750, trespassing and minor driving offenses, among other crimes.

If prosecutors in Indiana began implementing such policies, SB 200 would allow the Indiana attorney general — currently Republican Todd Rokita — to ask the Indiana chief justice — currently Loretta Rush — to appoint a court to consider the AG’s request for a special prosecutor. The elected prosecutor who implemented the policy would have an opportunity to respond to the AG’s request, and the appointed judge would make the final decision on whether a special prosecutor is necessary. If one is necessary, the judge would select the special prosecutor.

“We have a system where if you don’t like the law, you can come to the Legislature to get it changed,” Young said Tuesday. “It’s the prosecutors’ responsibility and duties to (uphold) the law.”

Neither the Indiana Public Defender Council nor the Indiana Prosecuting Attorneys Council supported SB 200. Dave Powell, senior counsel with IPAC, said on the “rare” occasions when the two organizations agree, lawmakers should take notice.

Powell said IPAC’s opposition to SB 200 comes from the bill’s impact to prosecutorial discretion, which he said is the “foundation stone” of a prosecutor’s work.

Noting that prosecutors’ offices are generally underfunded and under-resourced, Powell said the reality is that sometimes, prosecutors have to make “business decisions” about which crimes to prosecute.

He gave the example of sheriffs who have decided not to issue speeding tickets to preserve their local resources, opting instead to let the Indiana State Police handle tickets. Prosecutors have the same discretion, Powell said.

“This is another unfunded mandate,” he said. “It’s making our job harder.”

But Young pushed back, rhetorically asking Powell, “Which laws can I not abide by?”

Sen. Aaron Freeman, another Indianapolis Republican, also pushed Powell on his testimony, which included the comment that sometimes prosecutors have to make “political” decisions when facing reelection. When he heard that comment, Freeman said he had to hold himself down.

Powell, however, said it is a reality that politics play a role in prosecutors’ offices. IPAC does not judge the decisions prosecutors make, he said, it simply supports prosecutors’ discretion to make those decisions.

From the public defense perspective, Michael Moore, assistant executive director of the Indiana Public Defender Council, spoke of the will of the community. He gave the example of trying a drug case in Marion County where, when asked if marijuana should be legalized, many potential jurors have responded “yes”.

SB 200 makes exceptions for decisions not to prosecute based on individual circumstances or “a reasonable good faith belief that the law is unconstitutional … .” While the will of the community is not a constitutional issue, Moore said such policy considerations fall within a prosecutor’s discretion.

“This encroaches way too much into the realm of the prosecutor,” Moore said. “It’s a disturbing trend in what used to be a local control state.”

Moore’s marijuana example was salient given the Marion County Prosecutor’s Office announcement in 2019 that it would no longer prosecute cases involving simple possession of small amounts of marijuana. Prosecutor Ryan Mears, a Democrat, said that decision was based on a need to dedicate resources to combatting violent crime in Indianapolis as well as a belief that marijuana prosecutions unfairly targeted minority residents.

Sen. Greg Taylor, an Indianapolis Democrat, said he was convinced SB 200 was introduced in response to Mears’ policy decision. Young, however, maintained that the bill was in the works when former Prosecutor Terry Curry held the Indianapolis office.

Every time it is suggested that the bill was drafted in response to Mears, Young pledged to rebut that statement.

Those opposing SB 200 were Taylor, Sen. Karen Tallian, D-Ogden Dunes, and Sen. Sue Glick, R-LaGrange.

SB 200 is now headed to the full Senate for possible amendment, discussion and a vote. At IL deadline, the bill was not on the calendar for the Senate’s next session on Thursday.

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