Lawmakers: Giving AG power over prosecutors ‘least preferred’ route in dispute

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A bipartisan group of lawmakers and justice system leaders that assembled on Thursday to consider how best to address county prosecutors with “blanket” nonprosecution policies agreed that handing authority to Indiana’s attorney general isn’t the route to go.

But the Prosecutorial Oversight Task Force didn’t come up with any solutions or recommendations.

“Everybody needs to go and watch Schoolhouse Rock,” said Co-Chair Sen. Aaron Freeman, R-Indianapolis. “I mean, this is not complicated. We have three branches of government for a reason. … As far as I know, the Legislature makes the laws. … The executive (branch) is supposed to carry out those laws, all of them.”

Republican lawmakers referenced local prosecutors across the country who they said aren’t enforcing shoplifting laws below a certain dollar amount.

But they also cited Marion County Prosecutor Ryan Mears, a Democrat who’s said his office won’t criminally prosecute possession of one ounce or less of marijuana, and won’t “waste one resource” prosecuting women or medical professionals involved in abortion cases should Indiana’s ban go back into force. 

The task force’s mandate included consideration of three specific ways to enforce a statute or constitutional provision: grant the attorney general concurrent jurisdiction, grant another prosecutor that authority or establish a procedure to instead appoint a special prosecuting attorney.

Indiana Prosecuting Attorneys Council Executive Director Chris Naylor said the independent state judicial branch agency had opposed such language in bills over the last three sessions because of it “invading prosecutorial discretion.”

If “forced to choose,” Naylor said, he considered the special prosecutor option the most seamless because Indiana already has such a statute. “Although, we’re not sure whether or not that’s even a good idea,” he added.

Indiana Public Defender Council Executive Director Bernice Corley said she was “very uncomfortable” with the attorney general idea because it “further dilutes the vote of any citizen of any county” and “seems undemocratic.”

Corley said she wasn’t “entirely comfortable” with the other two alternatives, but later dubbed the attorney general option “the least preferred.” For crimes with victims, some kind of enforcement mechanism could be helpful.

Legislative reaction

Rep. Mike Aylesworth, R-Hebron, concurred. He said a former state attorney general told him “it doesn’t belong in our bailiwick.”

Aylesworth suggested establishing a process, perhaps through a circuit court judge or county executive, to refer noncompliant prosecutors up to the Indiana Supreme Court Disciplinary Commission.

Sen. Sue Glick, R-LaGrange, also agreed, saying that a more local official than the attorney general should be involved in these cases.

Freeman was unconvinced.

“My concern is when we go down the road of allowing people to decide which laws they’re going to enforce and which laws they’re not going to enforce, it is a really, really dangerous place in our world,” he said.

Freeman argued that “blanket” nonprosecution policies went beyond prosecutorial discretion, and advocated for a “broken windows” approach to crime.

“Nobody here is saying that low-level marijuana cases need to go to jail. … But to not bring a charge, to not do anything, is setting up the scenario that you see going on around the country, and in Marion County, in particular, crime is out of control,” Freeman said. “People have no fear of punishment, they have no fear of repercussions. And if the low-level things aren’t prosecuted, then they’re going to graduate to more things.”

The task force adjourned after just an hour of discussion and with no specific legislative recommendations ahead of the January session.

Rep. Matt Pierce, D-Bloomington, said he was reluctant to make recommendations given the group’s single meeting, which featured no “scientific analysis” on the impacts of blanket nonprosecution policies, nor testimony from stakeholders not already on the task force.

Freeman anticipated there would be bill drafts on the topic next session, recommendations or not. He said he didn’t want to “blow up” the judicial system but would work with Co-Chair Rep. Chris Jeter, R-Fishers, and stakeholders “to find the sweet spot.”

The House has generally been less interested than the Senate on the topic, but Jeter said it had gotten his chamber’s attention more recently.

The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.

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