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Is the Marion County Prosecutor’s Office right to stop prosecuting marijuana possession charges?
Prosecutorial discretion is an important and powerful tool in the state of Indiana, and one that neither I, nor my fellow prosecutors, take lightly. As the top law enforcement official in each of Indiana’s 91 judicial circuits, prosecutors make the final determination, based on the individual facts of each case, as to whether a crime has occurred and criminal charges should be filed.
Prosecutors do not, however, decide what is a crime. That job is left up to the state Legislature. Our state representatives and senators are the ones charged with deciding whether or not something is a criminal act. The job of the prosecutor is to decide whether or not a crime can be proven in a court of law, based on the individual facts of a case.
Recently, the acting (and now appointed) Marion County prosecutor announced his office will no longer be prosecuting cases involving the possession of certain amounts of marijuana. I, and other prosecutors around the state, are very concerned about the precedent that this may set. When I took the oath of office, I swore to uphold the laws of the state of Indiana. In that oath and in the Indiana Constitution, there is no wiggle room, no gray area open to interpretation as I read it. It does not say “some of the laws.” It does not say “the laws you agree with.” It simply says “the laws.”
I would take issue with this stance from any prosecutor, regardless of the law he or she decided to no longer prosecute. There are some laws on the books now that I do not agree with. There are some penalties that I think are too lenient. There are some penalties that I think are too harsh. For a prosecutor to eliminate an entire classification of criminal laws effectively overrides the Legislature.
This is part of a troubling trend that we are starting to see across the country of prosecutors and district attorneys making blanket statements about certain laws they are no longer going to enforce. Rachael Rollins, the district attorney in Suffolk County, Massachusetts, recently announced that her office would not be prosecuting several “non-violent” offenses including shoplifting, resisting law enforcement and drug possession.
Jail is only one of many options available to prosecutors and judges in resolving criminal cases. In fact, many non-violent offenders are given the opportunity to participate in diversion or community corrections programs instead of being incarcerated. Probation can be utilized to assist those who are addicted or mentally ill to get the treatment they need. However, there should be a consequence for committing an act that the state Legislature has deemed a crime. To completely ignore a crime is to ignore the prosecutor’s oath and to encourage its commission.
Prosecutorial discretion is incredibly important and something that I take very seriously. That discretion should be used to make a fair determination on a case by case basis, not as a magic wand to remove laws with which we do not agree.•
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Holtsclaw is the Greene County prosecutor and president of the Association of Indiana Prosecuting Attorneys Inc. Send comments to ibjedit@ibj.com.
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Our legislature is not up to the task of passing up to date marijuana laws. Illinois and Michigan are states that can. The Marion County Prosecutor’s Office is a breath of fresh air in a backward state called Indiana.