How to Waste Resources and Ruin Lives

In late September 2019, newly-appointed Marion County Prosecutor Ryan Mears announced that his office would no longer go forward with cases of misdemeanor marijuana possession. As the county’s top law enforcement official, Prosecutor Mears made it known that his office was not prepared to invest resources into prosecuting individuals for misdemeanor marijuana possession.

The Drug Enforcement Administration continues to claim that this plant has no acceptable medical use. It’s 2020 now, and pretty much everyone knows this isn’t true.

This announcement did nothing to prevent police officers from arresting people, but it did mean that those booked for misdemeanor possession in Marion County were likely to be out of jail in a few hours with no criminal charges pending.

The response from police has been less than enthusiastic. The Indianapolis Metropolitan Police Department (IMPD) responded with a public statement that marijuana was still against the law and that folks possessing it could still be subject to arrest. The Indianapolis Fraternal Order of Police expressed “strong concerns” about the prospect of a single individual making sweeping policy decisions.

For his part, Prosecutor Mears has argued that this policy change started organically, pointing out that prior to the September announcement, Marion County was already dismissing marijuana possession cases at a rate of 81%.

A number of public officials decided to weigh in, as well, with some praising the move, while Attorney General Curtis Hill compared the policy announcement to a “welcome mat for lawbreakers.”  Most interestingly, several Indiana prosecutors outside of Marion County felt the need to remind their respective citizens about the oaths they swore to uphold the law of the land. Johnson County Prosecutor Joe Villanueva has articulated this position as well as anyone.

Meanwhile, the Lake County Council endorsed an ordinance that would give sheriff’s deputies the discretion to punish misdemeanor possession—less than 30 grams—with a ticket instead of a trip to jail. 

Representing Indiana’s entrenched resistance to change, Senator Michael Young wasted little time in introducing Senate Bill 436, which was designed to grant the Indiana Attorney General “concurrent jurisdiction” to oversee the prosecution of “certain crimes” if the elected prosecutor refuses to do so as a matter of policy. This proposed law would allow the Indiana Attorney General to effectively negate the Marion and Lake County policies by stepping in and prosecuting misdemeanor possession cases. 

Senator Michael Young doesn’t
like the idea of justice getting
in the way of a good prosecution.

There might seem to be a causal line that can be drawn between de facto marijuana decriminalization and SB 436, but Senator Young has insisted that his bill should not be read as a theatrical response to the attention that Marion County has been getting. Rather, he claims that SB 436 is meant to oppose the perceived trend of so-called social justice prosecuting.

Practically speaking, social justice prosecuting is just an unfriendly name for prosecutorial discretion. In a rhetorical sense, the phrase attempts to convey snarky disapproval based on the questionable assumption that the concepts of justice and prosecution have nothing to do with one another. 

The Indiana Prosecuting Attorneys Council (IPAC) is in favor of prosecutorial discretion, so it argued in opposition to SB 436. According to IPAC, county prosecutors are entitled to make decisions about their respective office’s allocation of time, money, and manpower, and the aim of SB 436 is to take that decision-making power away. Former executive director of IPAC, David Powell, worried about the precedent that this sort of legislative power-grab might set for future scenarios involving other contentious issues, such as a case where a prosecutor declines to seek the death penalty. 

Senator Young, on the other hand, is far more worried that some people might be having unauthorized fun and not getting punished for it. He’s seen the writing on the wall: Cities in surrounding states have enacted similar policies without interference from their top law enforcement officials.

For example, Louisville, Kentucky is no longer prosecuting possession cases involving an ounce or less, and Cincinnati, Ohio has decriminalized marijuana possession of up to 100 grams. Like Indianapolis, both cities have justified their respective policy decisions by pointing to the disproportionate impact of marijuana prohibition on minority defendants. Also like Indianapolis, both Louisville and Cincinnati are located in states where the attorney general is a Republican and marijuana possession remains broadly illegal.

Believe it or not, though, a state’s attorney general stepping in to address the perceived failures of a county prosecutor is not unheard of. In late 2019, the New Hampshire Attorney General took over “day-to-day prosecutorial duties” in the state’s most-populated county, citing “systemic failures in leadership.” Other states have their own ways of doing things. Louisiana’s constitution, for example, gives the state’s attorney general full power to handle criminal cases within any court in the state.

Likewise, Maryland, Georgia and Texas each require their respective attorneys general to handle or assist with certain specific criminal matters. In Delaware and Rhode Island, there are no prosecutor’s offices at the county level, and the attorney general’s office is directly responsible for all criminal cases. In other words, SB 436 may have reactionary aims, but the way it wants to see power distributed isn’t completely unprecedented.

For the moment, it appears that SB 436 is no longer a threat, and the dream of an interventionist attorney general has been put on hold. In early February, Senator Young allowed a key Statehouse deadline to pass, meaning that SB 436 did not advance to the House for further discussion and debate. It’s worth noting, however, that the Indiana General Assembly is composed primarily of Republicans, so if this bill were to be revived in the future, it probably wouldn’t needn’t bipartisan support in order to become law.

This controversy opens up a whole can of public policy worms, the two juiciest of which are: 

  • Should a county prosecutor’s office have some degree of professional discretion and independence, or should it be subject to takeover by the Indiana Attorney General?
  • How long are we going to pretend that the war on drugs is worth fighting?
Someday, our grandchildren will wonder what all the fuss was about.

On the first question, Prosecutor Mears has made it clear that he’s attempting to prioritize the prosecution of violent crimes. Marion County has faced a rising murder rate in recent years, and between 2011 and 2017, major felony drug and gun caseloads more than doubled for Marion County prosecutors.

Against this criminal backdrop, Marion County only prosecuted 26% of the marijuana possession cases it filed in 2018, with that number dropping to 19% the following year. Despite these facts, critics are obtusely claiming that emphasizing the prosecution of violent crimes over cases of misdemeanor possession amounts to a dereliction of duty.

On the second question, the trend on marijuana prohibition is only headed in one direction. The U.S. is stumbling state-by-state toward legalization, with Michigan and Illinois recently becoming the tenth and eleventh states to fully embrace the sale of recreational cannabis.

Indiana is going to have to reconsider its antiquated drug laws sooner or later, and procrastination always looks worse when you’re considering it in retrospect. Here’s to hoping that more reasonable days lie ahead.

Whatever moves the General Assembly decides to make, it’s important to know the ins and outs of how marijuana possession is going to be treated going forward. For now, review our blog about the recent policy change in Marion County, and keep your ear to the ground for future rumblings from the direction of the Statehouse.

As more and more states continue to legalize marijuana possession and use, it may become increasingly difficult for the average recreational user to understand the pitfalls of interstate travel. If you have questions, give us a call at 317-632-3642, and remember—always plead the 5th!