The Indiana Law Blog is the first to report on an Indiana Court of Appeals’ decision striking down Marion County’s diversion fee charges for indigent defendants as an absolute condition for participation in its pre-trial diversion program. In Jamie Mueller & Vicki Evans v. State of Indiana, the Court of Appeals held that payment of a $230 diversion fee as a condition for participation in Marion County’s pre-trial diversion program by all defendants, including indigent persons, violated the equal protection clause of the 14th Amendment to the U.S. Consitution.
In its unanimous decision the Court held: “Completely foreclosing a benefit that the State offers to defendants in the criminal justice system, based solely on an inability to pay a fee or fine, violates the Fourteenth Amendment. In the context of the criminal justice system, the argument that the fees help offset the costs of running the pretrial diversion program is not sufficient to establish a rational basis for distinguishing between the indigent and those able to pay the fees. As such, precluding Mueller and Evans from participating in the Prosecutor’s pretrial diversion program based solely on their asserted inability to pay the $230 in fees violated their rights under the United States Constitution.”
The Court suggested that the harshness of the current $230 fee could be alleviated for indigent persons “in the form of complete waiver of the fee, partial waiver, implementation of a reasonable payment schedule, replacement of the fee with a non-financial (but reasonable) requirement such as community service, or some combination of partial waiver and a non-financial requirement.”
The Court of Appeals’ opinion, written by Judge Michael Barnes, in a footnote takes a swipe at an argument in the brief filed by Attorney General Steve Carter’s office on behalf of Marion County Prosecutor Carl Brizzi in support of the $230 diversion fee. The Court said: “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.”
According to the decision, the State’s case was argued by Deputy Attorney General Ellen H. Meilaender; it is unclear if she or another deputy in the office prepared the State’s brief in the case. An Indianapolis Star report written by Kevin Corcoran describes the comment in the opinion’s footnote as “chastis[ing] 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.” The comment in the Court’s footnote is clearly directed at the State’s argument “in its brief.” Marion County Prosecutor Carl Brizzi was not “chastised” by the Court as Corcoran’s article suggests as he didn’t author the brief filed by Attorney General Steve Carter’s office.
UPDATE: Kevin Corcoran brought to Advance Indiana editor Gary R. Welsh's attention several prior public comments Prosecutor Brizzi has made which were consistent with the argument in the State's brief. For example, in an article Corcoran wrote for the Star on September 26, 2005, Brizzi told Corcoran that coming up with Marion County's mandatory $150 fee is a matter of making simple lifestyle changes. "How much is a pack of cigarettes?" he asked. He also points out that Brizzi signed off on the State's brief before it was filed. It is still the case that the Court was only responding to the argument filed in the State's brief, but Corcoran's evidence does point to Brizzi's ownership of the argument.
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