IN prosecutors seeking special prosecutor unit, commission to help with lawyer shortage

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Indiana Statehouse (IL file photo)

A bill that would create a special prosecutors unit within the Indiana Prosecuting Attorneys Council and would also establish a prosecutor commission similar to the Indiana Public Defender Commission has cleared its first legislative hurdle.

The Senate Corrections and Criminal Law Committee on Jan. 17 gave unanimous support to Senate Bill 280, recommitting the legislation to the Senate Committee on Appropriations. The bill, authored by Sen. Aaron Freeman, R-Indianapolis, has two main parts.

The first part is the creation of the “special prosecuting attorney unit” within IPAC. The unit would consist of a division chief, attorneys serving as special prosecutors and support staff, with IPAC setting staffing ratios and workload measures.

Also, the bill would establish a “special prosecuting attorney fund,” which would be administered by IPAC with funds appropriated by the General Assembly.

Freeman — who chairs the Senate corrections committee — said the current process for appointing a special prosecutor “leaves a little to be desired.”

Courtney Curtis, IPAC’s assistant executive director, expanded on that, telling committee members that Indiana has a “dearth” of interested and experienced attorneys to serve as special prosecutors. State law requires an attorney to have eight years of experience as either a prosecutor or deputy prosecutor to serve in the special prosecutor role.

The number of senior prosecutors available to serve as special prosecutor is “remarkably low,” Curtis said. While there are 31 senior prosecutors available, only seven took on one of the 129 special prosecutor cases in Indiana from October 2021-2022, she said. The remaining cases were handled by 56 prosecutors and deputies.

The “best and brightest” prosecutors are repeatedly appointed to special prosecutor positions, Curtis continued, but those appointments — which generally involve highly complex cases — take away resources from the appointed prosecutor’s local office.

The second part of SB 280 deals with the creation of an Indiana Prosecuting Attorney Commission, mirroring the Indiana Public Defender Commission.

Per the bill, the commission would have nine members, including one appointed by the governor; one Indiana Supreme Court justice appointed by the chief justice; one member of the House Ways and Means Committee appointed by the House speaker; one member of the Senate Appropriations Committee appointed by the Senate president pro tempore; four members appointed by IPAC; and the executive director of IPAC, serving ex officio. No more than three of the members appointed by the speaker, Senate president pro tem and IPAC could be from the same political party.

Among the duties of the commission would be to “(m)ake recommendations to the general assembly concerning personnel and staffing for prosecution services” and to “(a)dopt guidelines and standards for prosecution services under which counties will be eligible for reimbursement.” That reimbursement would include up to 70% of a county’s expenditures for prosecuting attorney services.

Curtis pointed to the nationwide lawyer shortage — which has created a prosecutor shortage — as the need for the commission.

Indiana is short 440 prosecutors, Curtis told the committee, adding that several counties are operating with significantly fewer prosecuting attorneys than their caseloads demand. For example, Marion County has 79% of the prosecutors it needs, while Allen County has only 48%.

While the state cannot hire 440 attorneys immediately, Curtis said the creation of a commission could help “stop the bleed.”

One way that could be accomplished, she said, is by addressing salary disparities.

The average salary for a prosecutor in Indiana in 2020 was $69,777, while the average starting salary for law school grads that year was $75,000.

Further, among the counties participating in the Indiana Public Defender Commission, the average starting salary for a public defender is $80,000, Curtis said. And at the Indiana Department of Child Services, the average attorney salary is $96,000.

Curtis emphasized that she was not trying to disparage attorneys working for other public agencies, and she acknowledged the reality that prosecutor’s offices are unable to match private law salaries. The point, she said, is that a commission could establish salary scales that might “stop the bleed.”

What’s more, Curtis added, the Indiana General Assembly has created 26 new courts since 2008, not counting the problem-solving courts that have started in that time. Prosecutors have asked their county governments for funding to meet that growing demand, she said, but county councils aren’t able to keep up with the funding needs.

Dustin Renner, deputy legislative director at the Association of Indiana Counties, echoed Curtis in testifying that county governments can’t meet prosecutors’ funding needs. To that end, he voiced support for the reimbursement language in SB 280.

“We see a problem coming,” Curtis said of the prosecutor shortage, calling it a public safety issue. If left unresolved, she added, the result could be “the grinding to a halt of the criminal justice system.”

Curtis acknowledged that SB 280 could come with a hefty price tag, although exact numbers weren’t provided during the committee hearing. She said IPAC would be open to implementing SB 280 in three phrases to spread out the financial load.

The price tag means the bill must also pass through the Senate Appropriations Committee, which had not set a hearing at Indiana Lawyer deadline.

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