« Ind. Law - More on Crown Point's big box ordinance | Main | Law - An update on the election law standoff in Kentucky [Updated] »

Wednesday, November 16, 2005

Ind. Decisions - Requirement to pay for pretrial diversions decided by Court of Appeals today

In Jamie Mueller & Vicki Evans v. State of Indiana, decided today, Judge Barnes writes:

Summary. Jamie Mueller and Vickie Evans appeal the trial court’s refusal to require the Marion County Prosecutor (“the Prosecutor”) to permit them to participate in a pretrial diversion program. We reverse and remand.

Issue. The dispositive issue before us is whether requiring payment of a fee as an absolute condition of participating in a pretrial diversion program violates the Fourteenth Amendment to the United States Constitution. * * *

As our emphases make clear, the pretrial diversion statute does not require the payment of fees, either statutorily-denominated or otherwise, as an absolute condition of participation in a pretrial diversion program. Mueller and Evans concede the statute is constitutional on its face. The undisputed evidence before us, however, is that at the time of Mueller’s and Evans’s cases, the Prosecutor here had implemented a policy of unconditionally requiring the payment of certain fees as a condition of participation in his pretrial diversion program. The question, therefore, is whether this was an unconstitutional application of an otherwise constitutional statute with respect to indigent defendants. * * *

Prosecutors have clearly recognized and very broad discretion in the performance of their duties and, more specifically, in making decisions as to which persons arrested for crimes they will actually charge and prosecute to the fullest extent of the law. That discretion, however, is not absolute. The concept that our criminal justice system should be operated as far as reasonably possible without regard to a defendant’s financial resources is axiomatic and beyond dispute. Allowing some defendants and not others to completely avoid prosecution and a potential criminal conviction, based solely on their respective abilities to pay certain fees, violates this fundamental principle. We are reminded of these words spoken by then-Attorney General Robert Jackson in 1940:

“[T]he citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” See The Federal Prosecutor, http://www.roberthjackson.org/Man/theman2-7-6-1 (last visited October 25, 2005).
Conclusion. A practice of requiring payment of a fee as an absolute condition of participation in a pretrial diversion program discriminates against indigent persons in violation of the Fourteenth Amendment. The trial court erred in concluding otherwise. We reverse and remand for further consideration of Mueller’s and Evans’s indigency, if necessary. Reversed and remanded.

CRONE, J., and NAJAM, J., concur

[More] For background, see these ILB entries from 5/26/04 and 9/26/05.

Posted by Marcia Oddi on November 16, 2005 11:13 AM
Posted to Ind. App.Ct. Decisions