The Indiana General Assembly appears far from achieving consensus on whether, or how, to sanction county prosecutors who categorically decline to file charges for specific crimes.
In August, Hoosier lawmakers established a Prosecutorial Oversight Task Force in Senate Enrolled Act 1 to evaluate different means of compelling prosecutors to enforce statutory or constitutional violations prosecutors might otherwise choose to ignore.
Among the options considered by the task force at its sole meeting this month were granting the Indiana attorney general or another local prosecutor concurrent jurisdiction to file charges under certain circumstances, or establishing a procedure to appoint a special prosecutor.
In the end, however, the 11-member bipartisan task force couldn't agree on any possible solution and submitted its final report to the full House and Senate with no recommendation for action during the 2023 General Assembly that begins regular meetings in early January.
The issue has bubbled up repeatedly at the Statehouse in the wake of a 2019 decision by Marion County Prosecutor Ryan Mears, a Democrat, to publicly announce his refusal to criminally prosecute possession of one ounce or less of marijuana in the city of Indianapolis.
Republican lawmakers, particularly in the Senate, have objected to Mears' policy, as well as the possibility a prosecutor might decline to charge crimes under Indiana's near-total abortion ban, by insisting legislators write the laws of the state and prosecutors are duty-bound to enforce them, except when the circumstances of a specific case warrant diversion, treatment or nonprosecution.
"Something has to be done," said state Sen. Aaron Freeman, R-Indianapolis. "We follow the law. We follow all of them. The ones we like and the ones we don't like. And if you don't like them, then I encourage people to run for office. Run for the General Assembly, run for Congress, change the law."
Democratic task force members pointed out Mears overwhelmingly was reelected Nov. 8 as Marion County prosecutor — notwithstanding ceaseless claims by supporters of his Republican opponent that Mears turned Indiana's capital city into a crime-ridden horror show — so voters clearly are satisfied with Mears' policy on marijuana possession.
"I'm totally against having someone look over the shoulder of every prosecutor, all 91 of them, by somebody who might have an agenda different than theirs," said Senate Democratic Leader Greg Taylor, D-Indianapolis. "They (Prosecutors) know what their community wants, and they're held accountable."
State Rep. Matt Pierce, D-Bloomington, said prosecutorial discretion is a cornerstone of the criminal justice system: "Whether they're making those decisions one case at a time or they're making them based on a category of cases."
"They're making decisions about where their resources are going to be put and what are the priorities of their communities. We've chosen to have our prosecutors be elected on a countywide basis. So every four years there's an opportunity for the community to have a robust debate," Pierce said.
At the same time, several Republican lawmakers noted nonprosecution decisions elsewhere in the country seem to have led to more crime and harm to businesses, particularly when low-level offenses, such as shoplifting, are categorically ignored by prosecutors.
"I'm not interested at all in taking away that ability to have discretion in individual cases based on the facts of those cases. What I'm concerned about is blanket policies which then are used to get by with all kinds of things," said state Sen. Michael Crider, R-Greenfield.
Crider said he believes there should be some way for shop owners, or another affected party, to appeal a nonprosecution decision to another entity because not everyone in a county is equally impacted when a prosecutor chooses to look the other way with certain offenses.
State Rep. Mike Aylesworth, R-Hebron, agreed. He said that perhaps the circuit judge in each county or the county executive could review blanket nonprosecution policies, or the Supreme Court Disciplinary Commission could consider sanctions against the prosecutor's law license, if appropriate.
Chris Naylor, executive director of the Indiana Prosecuting Attorneys Council, pushed back on the idea that prosecutors should face the possibility of losing their law license, and their career, simply for exercising the discretion provided by law to their office.
"Indiana courts have established and have affirmed time after time after time broad prosecutorial discretion with respect to whether or not to file charges, what charges to file, when to file charges, whether to offer a plea agreement, even whether to recommend sentencing. That's all well-established in Indiana law," Naylor said.
On the other hand, if the General Assembly really wants to open this can of worms, Bernice Corley, executive director of the Indiana Public Defender Council, said everything prosecutors do should be scrutinized, not just their use of blanket discretion policies.
"If we're going to go down this road, let's pull back and look at the whole picture," Corley said. "There's almost no figure more powerful than the prosecutor in the criminal legal system. Yet, through all our reforms and conversations, from a policy position there's no transparency in what they do, how their power is used, how charges are filed or not filed, pleas offered, when they're offered, etc."
Freeman, a former Marion County deputy prosecutor, was uninterested in that suggestion. Instead, Freeman pledged that regardless of the task force's lack of consensus, the Senate Committee on Corrections and Criminal Code, which he leads, will consider legislation next year to sanction noncompliant prosecutors.
He said there will be drafts authorizing the attorney general or a special prosecutor to step in for a prosecutor who categorically declines to charge specific crimes. Freeman also said he's interested in a Florida-style law permitting the governor to unilaterally remove and replace elected county prosecutors.
"God Bless (Florida Gov.) Ron DeSantis. Good for him. He's unwilling to allow this thing to happen in the state of Florida, and Florida is doing pretty well," Freeman said.
Lake County Prosecutor Bernard Carter and Porter County Prosecutor Gary Germann, both Democrats, previously have said 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, or another outside prosecutor, permission to step on their turf.
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