SB 436 – Attorney General Usurpation of Prosecutorial Discretion

Senator Young has introduced SB 436 which gives prosecutorial authority to the Attorney General where a county prosecutor “categorically refuses” to prosecute a criminal law. This is prompted, I presume, by the Marion County Prosecutor’s decision not to prosecute people for simple marijuana possession.

A “categorical refusal” occurs where the Prosecutor has announced that he or she is not enforcing a category of crime or where in the opinion of the Attorney General, the Prosecutor is not enforcing that category of crime. (As the law is written, there is a back and forth process where the Prosecutor can try to convince the AG that he or she is enforcing the particular law, but ultimately the AG makes the decision about whether there has been a categorical refusal.) There doesn’t seem to be a process for appealing the AG’s decision. However, if the AG provides notice of categorical refusal, the Prosecutor can deprive the AG of the ability to proceed (I think) if the Prosecutor files an information against someone within 30 days. So, it sucks to be the poor schmuck who is in the wrong place at the wrong time after the AG files one of these notices.

“The Attorney General’s jurisdiction extends only to the prosecution of those offenses that the prosecuting attorney is refusing to enforce.” Fortunately, criminals are pretty conscientious about committing only one type of crime at a time, so this shouldn’t cause any problems with overlapping jurisdiction. Because it would be pretty unwieldy for the Prosecutor to be in the courtroom trying to prosecute the accused for crimes that aren’t a waste of time and money while pissed off at the AG who is also in the courtroom being all “Indianapolis knows best” prosecuting the one crime the AG has jurisdiction over. Meanwhile, the defense has to juggle both issues. Or, maybe they bifurcate the trials, doubling the attorney fees, court time, and imposition on jurors.

And, as a county attorney, here is my favorite part: “The county in which the attorney general prosecutes a case under this section shall reimburse the attorney general for the expenses of prosecuting the case.” The guest that nobody invited and nobody wanted is going to send you a bill for his presence. The AG just sends the bill to the Auditor who is required to pay the bill out of the general fund within 30 days, without appropriation. Because, screw your budget. This is a great way to rile up people in the provinces.

[Updated to add – the fiscal note says that the Attorney General can bill the County for attorney time on the basis of the Prosecutor’s salary which works out to $544.95 per day based on the $151,137 annual salary. I’m pretty certain that the Deputy AG they’ll send out to the sticks to actually prosecute the case won’t be pulling down $150k from the State. So, the Attorney General could turn this into a profit center if he or she were so inclined.]

[Updated again to add – this passed out of committee by a vote of 6 – 3. Those in favor: Senators Glick, Bohacek, Busch, Freeman, Sandlin, and Young. Those opposed: Senators Tallian, Randolph, and Koch. The committee report makes changes that has the AG working through a special prosecutor rather than directly through his or her office.]