Bill could undermine Marion County's new marijuana policy

New legislation that would essentially allow the Indiana attorney general to override a prosecutor’s authority is moving forward in the Legislature amid a debate fueled, in part, by Marion County Prosecutor Ryan Mears’ decision last year to stop prosecuting marijuana possession cases.

Republican Indiana Sen. Michael Young, who represents portions of Marion and Hendricks Counties, introduced a bill that would grant the attorney general jurisdiction to prosecute "certain crimes" if the prosecuting attorney refuses, as a matter of policy, to prosecute those crimes.

Before lawmakers met Tuesday to discuss the bill, Mears told IndyStar he believed the bill is an indirect attempt to address the marijuana policy instead of simply discussing the matter openly.

"I would like to think that the constituents of those elected representatives want to know where their elected officials stand on the issue of marijuana and whether or not medical marijuana is appropriate, or decriminalization is appropriate," he said. "Especially given what our neighboring states are doing as it relates to the regulation of marijuana."

Young insisted at a legislative hearing Tuesday that his bill is not aimed at Mears, but the discussion touched on Mears' public decision last year to stop prosecuting simple marijuana possession, specifically cases where a person is carrying less than an ounce. Mears said he made that decision to focus his office's resources on serious violent crime.

The policy, which Mears announced as acting prosecutor, was met with support from people who agreed with his reasoning that marijuana is a victimless crime that has a disproportionate impact on the African-American community.

But concerns over the policy’s implications — the authority to potentially circumvent state law — were raised and reiterated Tuesday morning at the Senate Corrections and Criminal Law committee meeting for the proposed legislation, Senate Bill 436.

Opening the discussion, Young, the committee chairman, decried what he called “social justice prosecuting.” He said he did not intend to target Mears, chalking it up to bad timing, and cited several other cases across the country in which county prosecutors declined to pursue low-level criminal offenses.

“We want prosecutors to do their job,” he said.

Sen. Karen Tallian, a Democrat on the committee, said the bill could create political division among the attorney general’s office and counties. Calling the bill “amazingly bad,” she asked: “What keeps this from becoming a political crisis?” 

Young said he trusts the attorney general's office to act fairly.

Most of the committee members concurred with Young's concerns and voted to send the legislation to the Senate, while also acknowledging that the bill needs work. For proponents of the bill, the issue centers on whether a prosecutor can unilaterally decide which crimes he/she elects to prosecute. No one objected to a prosecutor’s decision to pursue or reject criminal cases on a case-by-case basis.

“We are in dangerous territory when we let government authorities decide not to enforce the law,” Republican Sen. Jack Sandlin said.

While lawmakers indirectly rebuked Mears’ marijuana policy, opponents of the bill who testified expressed support. Those who didn’t mention Mears highlighted the importance of respecting prosecutorial discretion.

“Prosecutorial discretion is the holy grail to us,” David Powell, senior counsel for the Indiana Prosecuting Attorneys Council, said before saying that the council opposes the bill.

Parvonay Stover, of the attorney general’s office, testified that the office is neutral on the bill, but would step up if needed.

“We understand the legislature’s frustration with prosecutors treating the criminal laws this body passes as ‘optional’ or mere suggestions,” she said, according to a transcript provided by the office to IndyStar. “Our stance on this is simple: If you do not like the laws on the books, then come to the Statehouse and change them.”

Stover did not directly answer a question from committee member Sen. Lonnie Randolph, a Democrat, about whether the Attorney General's office actually has the resources to pursue potentially hundreds of presumably low-level criminal offenses in the state’s 92 counties. According to an amended version of the bill, the attorney general would appoint a special prosecutor to file charges.

In a statement to IndyStar, the office said that until the final version of the law is passed and reviewed, it will not be able to determine what resources will be needed.

After the committee meeting, Mears told IndyStar he stands by his October decision and would likely challenge the constitutionality of the legislation in court if it passed as is. His office has dismissed 340 pending cases since the policy went into effect, a spokesman said.

Mears also noted that his office still reviews marijuana possession cases and will bring charges if law enforcement believes there are additional factors.

“If someone comes in with a possession of marijuana case and they say, ‘this involves an impaired driver,’ we're filing it,” he said. “This involves the public consumption of marijuana, we're going to file it.”

Tallian seemed to suggest at the hearing that if Mears had quietly moved away from prosecuting simple marijuana possession, instead of declaring it publicly, his decision might not have been an issue. The Senate bill could discourage transparency from prosecutors, she said, encouraging them to operate discreetly.

Mears wanted the community to be aware of the change, he told IndyStar, so the public would know that his office is prioritizing violent crime.

"I want everybody, when they walk into that courtroom, to know they're going to get a fair shake from the Marion County prosecutor's office," Mears said. "When you disproportionately charge African Americans, or people of color, with this particular charge, that creates a real problem where people lose trust and faith in the judicial system. That's why it's incumbent upon us to do the right thing."

Now that the bill has made it out of the committee, it will go to the full Senate, where lawmakers are expected to consider the legislation.

Contact IndyStar reporter Crystal Hill at 317-444-6094 or cnhill@gannett.com. Follow her on Twitter: @crysnhill.