Commentary

The Prosecutorial Power Struggle

October 6, 2022 7:00 am

Republican lawmakers don't like the decisions of a Democrat prosecutor and keep trying to take discretion away. (Getty Images)

We have seen it play out in Indiana every session for the last several years – Indiana’s GOP lawmakers have been attempting to strip power away from local prosecutors, and instead hand it over to the Attorney General. 

On the flipside, Marion County Prosecutor Ryan Mears recently attempted to hire his own representation in the lawsuit filed by the ACLU of Indiana against the abortion ban – but as was clarified by the judge, this role is assigned to the Attorney General, who represents the state in civil cases.

So why the power struggle?

Local prosecutors have the power to flood jails and prisons and deepen racial disparities with the stroke of a pen. But they can also use their legal discretion to do the opposite. And clearly, some Indiana legislators and the Attorney General don’t like that.

Each year during session, legislators introduce a bill that would stop prosecutors who use their power to reduce racial and economic inequalities in the criminal legal system. These attempts would give the Indiana Attorney General the power to request the appointment of a special prosecutor in cases in which a county prosecutor has used their lawful discretion not to prosecute certain crimes, such as minor drug offenses.

During the debate on the abortion ban, legislators once again attempted to redistribute prosecutorial authority to the Attorney General. A law such as this wouldn’t only undermine the county prosecutor’s authority, but also the voter’s power to hold county prosecutors accountable.

The ability to hold elected officials accountable through voting is the most critical power given to We the People. Using our voting power to impact county-level policies and the criminal legal system is vital. 

Prosecutors are responsible for making necessary decisions at the county level to ensure community safety, which we all strive to achieve. Prosecutors must be responsive to the communities they serve — not politicians who think they know better than voters.

These decisions are more important now than ever before, as county jails across the state of Indiana face an overcrowding crisis. The ACLU of Indiana has filed overcrowding lawsuits in several county jails over the past decade, and prosecutors are one of several actors that can play a key role in fixing this problem.

As some of the most powerful people in the criminal legal system, prosecutors decide whether to keep, change, or drop a charge against someone; whether to offer a plea bargain; whether to recommend bail; how a case is investigated; and whether to offer someone who is accused of a crime the chance to participate in a diversionary program, such as drug treatment, instead of trying to send them to prison.  

If a community is not satisfied with the direction their county prosecutor is going, they can make their voices heard every four years at the ballot box, including this November.

Right now, across the state of Indiana, prosecutors are making decisions every day that impact their community, and policies should be put in to place to ensure transparency around those decisions.

But turning prosecutorial power over to Indiana’s Attorney General allows that office to substitute discretion for that of an elected county prosecutor, encouraging the Attorney General to pick and choose prosecutorial policies when oversight should come, first and foremost, from voters.

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Katie Blair
Katie Blair

Katie Blair is the Director of Advocacy and Public Policy at the ACLU of Indiana. She spearheads the organization’s coalition and legislative work on issues like privacy and surveillance, LGBTQ rights, smart justice, immigrant rights, reproductive justice and voting rights.

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