Bill challenging ‘noncompliant’ prosecutors clears Indiana Senate

A controversial bill that would allow the Indiana attorney general to request a special prosecutor if elected prosecutors become “noncompliant” passed the Indiana Senate on Tuesday.

Senate Bill 200 is now headed to the Indiana House for further consideration.

Authored by Sen. Mike Young, R-Indianapolis, SB 200 allows the attorney general to request a special prosecutor in situations where an elected prosecutor has a policy against prosecuting certain offenses. References have repeatedly been made to Marion County, where Prosecutor Ryan Mears has a policy against prosecuting simple possession of small amounts of marijuana, but Young has insisted that the bill was not introduced in response to that policy.

Instead, the senator said it was drafted in response to other jurisdictions across the country. He gave the example of Boston, where the elected prosecutor has a policy against prosecuting offenses including trespassing, larceny under $250, disorderly conduct and disturbing the peace, among others.

Some jurisdictions decline to prosecute larceny up to $1,000, Young said, while others have a policy against prosecuting indecent exposure.

“What type of society do we want to live in where the elected prosecutor decides not to do their job?” Young asked lawmakers before Tuesday’s final vote on the bill.

Under Young’s bill, if the attorney general determines an elected prosecutor is noncompliant, he can petition the Indiana chief justice to assign the case to a court outside of the prosecutor’s jurisdiction. The prosecutor will have an opportunity to respond to the AG’s request, and the appointed court ultimately decides whether a special prosecutor is necessary.

SB 200 does not have the support of the Indiana Prosecuting Attorneys Council, which raised concerns in a Senate committee about impeding prosecutorial discretion. Much of the discussion of the bill has focused on the issue of discretion, and Young has insisted that he respects that concept. But, he said, his bill does not deal with discretion on a case-by-case basis, but rather overarching policies against prosecuting certain offenses. Public defenders also opposed the bill in earlier testimony.

“Which laws do you get to not follow?” Young asked Tuesday. “… Why is it the prosecutors get to do this?”

Sen. Jack Sandlin, an Indianapolis Republican and former law enforcement officer, supported SB 200 on the Senate floor. He described “quality of life” crimes that can impact an entire community, such as disturbing the peace.

As an officer, Sandlin said it was in his discretion to decide whether to arrest a citizen for disturbing the peace. Declining to make an arrest might be the right decision for a particular case, he said, but if there was a policy against all arrests for disturbing the peace, the local quality of life could be impacted.

Sandlin also referenced the marijuana policy in Marion County, using it as an example of how such policies can lead to community confusion.

After Mears announced his stance on simple marijuana possession, Sandlin said individuals from Johnson County came to an apartment complex near Sandlin’s Marion County home to sell marijuana. When they arrived, the Johnson County residents were robbed and killed.

“They didn’t hear, ‘We’re not prosecuting low-level marijuana offenses,’ they just heard ‘marijuana offenses,’” Sandlin said, opining that their confusion led them into an unsafe situation. “So they drove to Marion County. … It’s real. People hear those things, and they don’t understand.”

Sen. Greg Taylor, however, argued that some prosecutors could easily skirt the new law by choosing to always use deferrals for certain offenses, rather than establishing outright policies of not prosecuting those offenses. He, like others opposed to the bill, described SB 200 as legislative overreach.

“If you want to be a prosecutor, run for it,” the Indianapolis Democrat said. “But you ran for senator, not prosecutor.”

The bill ultimately passed with a 29-20 vote. It now heads to the House under the sponsorship of Reps. John Young and Wendy McNamara.

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