Joint Resolutions have been introduced in the Senate and in the House proposing to give the Governor some pretty breathtaking power with respect to Prosecutors. Rep. Ireland has introduced HJR 5 in the House and Senators Freeman and Carrasco have introduced SJR 22 in the Senate.
Article 7 of the Indiana Constitution provides for the creation of a judicial branch of state government which, among other things, directs that the State be divided into judicial circuits. (Judicial circuits are usually, but not always, coterminus with County boundaries.) Section 16 of that article directs that, “there shall be elected in each judicial circuit by the voters thereof a prosecuting attorney.”
The Constitutional Amendment proposed by Ireland, Freeman, and Carrasco, propose to give the Governor the authority to remove the Prosecutor selected by the voters of the judicial circuit. Currently, per section 13 of that Article, a judge or prosecutor convicted of high crime or corruption can be removed by the Supreme Court. The amendment would add the following to that removal language:
The governor may suspend a prosecuting attorney from office for malfeasance, misfeasance, neglect of duty, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended prosecuting attorney may at any time before removal be reinstated by the governor.
The Governor should not be given this power. There aren’t any guardrails here. And, even if there were, giving that authority to the Governor raises serious separation of power issues. The conceit, I think, is that there is a rash of Prosecutors who aren’t sufficiently zealous in enforcing whatever laws the General Assembly or Governor deem to be the priority of the day. A few years ago, I think it was the Marion County Prosecutor who said he wasn’t going to waste a lot of resources on chasing marijuana convictions. That got some of the folks who want to be tough on weed riled up.
If this is actually a problem – and I’m skeptical that there are many Prosecutors in the state who are soft on crime – then the power should be left in the hands of the citizens in their judicial circuit. Maybe a recall process or something. But, mostly I don’t think we need this amendment. Hopefully it goes nowhere.
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