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Wednesday, November 16, 2005

Ind. Decisions - More on today's decision on the requirement to pay for pretrial diversions [Updated]

Shortly before 6 p.m. the Indianapolis Star posted on its website a story by Kevin Corcoran on today's Court of Appeals ruling in Jamie Mueller & Vicki Evans v. State of Indiana. (Scroll down 3 entries or click here for the ILB summary from this morning.) Some quotes from the Star story:

The Marion County prosecutor’s refusal to waive a $150 fee first-time petty criminals were required to pay to get charges against them dismissed discriminated against the poor, an Indiana court ruled today.

In a 3-0 ruling, the Indiana Court of Appeals held that Prosecutor Carl Brizzi’s policy, since abandoned, violated defendants’ constitutional due-process rights by treating them differently from defendants with money.

“A prosecutor’s charging decisions cannot be made in a way that violates the U.S. Constitution,” Judge Michael Barnes wrote in the court’s 14-page ruling.

The appeals court, in a footnote to the opinion, chastised Brizzi and the Indiana Attorney General’s Office for suggesting that poor people could afford the pretrial diversion fees if only they would curb spending on cigarettes, alcohol, cable TV or cell phones. * * *

Brizzi was out of town and unavailable for comment, according to a spokesman. His top aide said the ruling would have no immediate effect. During the court suit, in response to questions from The Star about the court challenge, Brizzi began making pretrial diversion available to eligible non-violent defendants who agree to either pay a $150 administrative fee or perform 30 hours of community service. If requested, prosecutors also will ask judges for 90-day delays so defendants can save money to pay the fee.

“We’re in full compliance with the ruling,” said Lisa Borges, Brizzi’s chief of staff. “We have no plans to appeal.”

Marion County public defenders said they are likely to go back to court if people who cannot afford to pay and are unable to perform community service are denied entry to the program.

Here is the footnote referenced in the story, from p. 13 of the opinion:
The State argues in its brief that the $230 in fees is “hardly excessive” and, “That money easily could be saved by eliminating expenditures on items such as alcohol, cigarettes, cable television, cell phone usage, and eating out in restaurants.” Undoubtedly, not every person who claims to be indigent turns out to be so, and the number of persons unable to pay these fees may be a small percentage of persons applying for the Prosecutor’s pretrial diversion program. However, we do not doubt the existence of extreme poverty in society and it is inappropriate to presume that persons in dire financial straits have wasted their money on drinking, smoking, cable television, cell phones, or dining out.
[Updated 11/17/05] Here is today's Star story, on the front-page of the local section, a somewhat expanded version of yesterday evening's version posted on the Star website.

Posted by Marcia Oddi on November 16, 2005 06:44 PM
Posted to Ind. App.Ct. Decisions