The Republican-controlled Indiana Senate is poised to decide this week whether to authorize the Republican attorney general to supplant a locally elected county prosecutor when the prosecutor categorically refuses to file charges for certain offenses.
The anticipated vote Tuesday on Senate Bill 436 (http://iga.in.gov/legislative/2020/bills/senate/436) comes four months after Democratic Marion County Prosecutor Ryan Mears announced he no longer would prosecute arrests for misdemeanor marijuana possession by adults in Indianapolis.
Lake County Prosecutor Bernard Carter and Porter County Prosecutor Gary Germann, both Democrats, said last week they don't agree with Mears' blanket decision to automatically forgo pot possession prosecutions.
But they also see no need for state lawmakers to give the attorney general permission to step on their turf.
"I kind of like things the way that they are," Germann said. "I like the way that every county in Indiana has its own prosecuting attorney who has a great deal of discretion. Which, I think, is a real blessing — if it's used wisely."
Germann said in Porter County every alleged offense is considered individually. Then the decision to file charges is based on whether the prosecutor's office can show a crime was committed, prove who did it, and charging the crime will produce the best result.
For example, Germann said, a person who steals something to feed a drug habit might be offered a diversion program and substance abuse treatment, instead of automatically bringing the alleged perpetrator to trial.
"We're screening cases as we look forward to what a case is going to look like in front of a jury," he said.
"We know our jurors. We make it a point to know the people that live in our community, and someone from Indianapolis may not have the same appreciation of what might happen in a case."
Carter agreed the attorney general likely would be at a disadvantage if the attorney general tried to take over a local prosecutor's office, not least because the attorney general doesn't usually prosecute crimes.
As a result, Carter said the attorney general might have to create a new division within his office that would cost taxpayer dollars, on top of the expense of transportation, lodging, office space and staff if the attorney general were to handle a county's prosecutions for an extended period of time.
Carter believes the legislation still is too vague on how all of those details would be handled.
Though Carter also insisted the attorney general never would have cause to come to Lake County anyway.
"As long as I'm prosecutor, they wouldn't find an occasion where they would say Bernie Carter is not following the law," he said.
The legislation generally does not interfere with prosecutorial discretion, except when the prosecutor announces as a matter of policy that he or she will not enforce all or part of a criminal statute enacted by the General Assembly.
In that circumstance, the attorney general personally could step in and file charges, or appoint a special prosecutor, after providing notice to the local prosecutor, local judges and the chief justice of Indiana.
The proposal prohibits the attorney general from intervening if the local prosecutor has "a reasonable, good faith belief" that a state law is unconstitutional, or if the decision not to prosecute is specific to an individual case.
In any case, the county prosecutor would be required to reimburse the attorney general for the costs of prosecuting cases the local prosecutor declines to file.
State Sen. Mike Young, R-Speedway, sponsor of the measure, said his goal isn't to punish Mears for dropping marijuana possession prosecutions in Indiana's capital city.
Rather, Young said he wants to prevent from coming to Indiana what he sees as a national trend of "social justice prosecuting," where elected prosecutors categorically refuse to bring charges for retail theft, public urination, prostitution and numerous other crimes.
"I don't mind if prosecutors have discretion based on an individual case," Young said. "I trust prosecutors with that ability to have individual discretion."
"What gives me concern is this growing trend throughout the country where prosecutors just aren't simply prosecuting crimes as a policy."
Indiana Attorney General Curtis Hill Jr. isn't explicitly advocating for the new authority.
But Parvonay Stover, Hill's government affairs director, last week told the Senate Committee on Corrections and Criminal Law that the attorney general's office stands ready to step in where needed if the proposal is enacted into law.
"I would certainly be frustrated, too, if I were a legislator and elected prosecutors were treating the laws this body passed as optional, and mere suggestions, rather than the rule of law," Stover said.
The legislation is opposed by the Indiana Prosecuting Attorneys Council, Indiana Public Defender Council, and the Indiana chapter of the American Civil Liberties Union, among others.
"By passing laws that allow the attorney general to supersede county prosecutors, we are not only undermining the prosecutor's authority, but also the voters' power to hold prosecutors responsible," said Katie Blair, ACLU director of advocacy and public policy.
If the legislation is approved by the Senate, it still must pass the Republican-controlled House to advance to Republican Gov. Eric Holcomb to be signed into law or vetoed.
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