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Monday, September 26, 2005

Ind. Courts - Marion County pretrial diversion program under challenge because of non-waivable fee

"Petty criminals can walk, for a price: Program unfair to poor, public defenders tell court" is the headline to this story this morning in the Indianapolis Star by Kevin Corcoran. Some quotes:

f you commit a minor crime like shoplifting in Marion County, you can essentially buy your way out of trouble and have the charges dismissed.

A pretrial diversion program -- similar to ones in at least 76 other Indiana counties -- permits people to pay a $150 administrative fee to erase the charges.

But for those who cannot afford the cost, a guilty plea or trial are the only choices.

"This is just blatant discrimination against poor people," said Kathleen M. Sweeney, a Marion County deputy public defender. "Because they're poor, they're treated differently."

Sweeney and other local public defenders have asked the Indiana Court of Appeals to declare unconstitutional Marion County Prosecutor Carl Brizzi's refusal to waive the program's mandatory administrative fee of $150 when defendants cannot pay. * * *

In the program, first-time misdemeanor offenders pay the fees, admit guilt and attend daylong behavior-modification classes covering topics such as the evils of stealing. The classes cost an extra $80, for fees totaling $230, but the $80 fee can be waived in exchange for community service.

The appellate court could rule on the program at any time.

The Marion County appeal could cause a statewide ripple because at least 77 of Indiana's 92 counties offer some form of pretrial diversion, according to reports compiled by the Indiana Supreme Court's Division of State Court Administration. These counties, including all metro-area counties, collected $5.2 million in fees in 2003, the most recent year for which figures are available. * * *

Diversion programs are common nationwide because they help prosecutors lighten their caseloads. However, refusing to waive fees for indigent defendants or requiring them to perform community service is unusual, said Thomas Geraghty, a Northwestern University law professor and director of the school's Bluhm Legal Clinic, which represents poor clients in civil and criminal cases.

"That seems a flat-out violation to me of the equal-protection clause of the U.S. Constitution," Geraghty said. "I've never heard of anything like that." * * *

In the appeal, Marion County's public defenders argue defendants like Vicki D. Evans are victims of unequal justice. Evans was arrested in a Meijer store last fall. She is accused of stuffing six DVDs in her purse and hiding grooming supplies in a box on her shopping cart.

In Marion Superior Court, a deputy prosecutor told the 46-year-old Far-Eastside woman that her inability to pay on the spot to join the pretrial diversion program meant she would have to plead guilty or go to trial.

For background, see this ILB entry from 5/26/04.

Posted by Marcia Oddi on September 26, 2005 06:37 AM
Posted to Indiana Courts