Prosecutor Discretion in Indiana

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Posted in On February 15, 2023

In Indiana, “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Ind. R. Prof’l. Cond. 3.8 Comment 1. This means that a prosecutor’s primary responsibility is not to prosecute cases and obtain convictions, but rather to seek justice. Frequently, this does require prosecuting criminal cases and obtaining convictions. However, this does seem to give a prosecutor some wiggle-room to decide to not prosecute a criminal case because they simply feel it is not the right thing to do.

A prosecutor who has gained quite a bit of attention for this in Indiana is Marion County Prosecutor Ryan Mears. Being a Democratic politician in one of Indiana’s most liberal counties, he determined that the residents of Marion County do not believe that marijuana should be prosecuted as a criminal offense. Therefore, over the last few years he has declined to prosecute simple marijuana possession cases.

While this is a valid and legal use of prosecutorial discretion, it has upset some of the more conservative lawmakers around the State. The Indiana Legislature assembled the “Prosecutorial Oversight Taskforce” to address this issue. This effort really ramped-up in response to Ryan Mears’ more recent decision to withhold the prosecution of medical providers in Marion County who provide abortion services. The objective of the more conservative members of the Taskforce is to enact laws that would require a local prosecutor to prosecute State laws.

There is widespread disagreement on this and the effect such laws could have. Ryan Mears was reelected by the people of Marion County in November of 2022, indicating that the people within his jurisdiction agree with his decision making and support his work as their local prosecutor. On the other hand, others argue that State law is State law and a local prosecutor has a duty to enforce it. They argue that the validity of State laws should not be determined by local prosecutors, but rather by the Courts and the legislature.

There are countless arguments on both sides of this debate so stay tuned to your local legislative news sources to see how this pans out. At this point there is not a specific law pending to address this issue, but that is exactly what the taskforce is considering.