Democratic Attorney General candidate Linda Pence outlined a 4-part plan this week to combat child abuse in Indiana. Pence's central idea is to have the Attorney General's office conduct an independent investigation when a child dies while in foster care are under the protection of the state. “When a child dies, the same department cannot, should not, investigate itself,” Pence is quoted by the Fort Wayne Journal Gazette's Niki Kelly as saying. “I will fight for and protect our children and families,” Pence said. “And make no mistake – these are not just words – I will take concrete actions to ensure our children’s safety and well-being.”
Republican Attorney General candidate Greg Zoeller questions whether the Attorney General's office can ethically be responsible for investigating these cases where the child is in the state's protective custody. Zoeller tells Kelly that it is the office's responsibility to defend the state agency if it is sued over the death of a child in its custody.
Pence's proposal goes even further and would put the office in the business of prosecuting cases. Kelly says Pence wants to "create a Multidisciplinary Child Abuse Investigative Team within the attorney general’s office – a group of prosecutors and experts who can help local authorities prosecute Hoosiers who intentionally harm children." Zoeller notes that county prosecutors are responsible under Indiana law for putting criminals in jail. It's the Attorney General's job, he notes, to defend those cases on appeal to make sure they remain in jail. “We support them where they feel like they need our assistance, but if she is suggesting that the AG be a prosecutor, I disagree,” he said. “I’m not proposing to be a prosecutor.”
This debate between Pence and Zoeller points up the weakness of our Attorney General's office. Indiana, unlike most states, doesn't even make the office a constitutional office. It is one of the weakest such offices in the country, particularly in comparison to neighboring Illinois' Attorney General's office, which has broad prosecutorial authority. Illinois' AG provides valuable assistance to many of the smaller counties which have small budgets for their state's attorneys, as they are called there instead of prosecutors, when they encounter those rare but difficult murder cases or complicated white collar crimes.
When Steve Carter first ran for AG, I asked him about his interest in expanding the powers of Indiana's AG's office to include prosecutorial power. He indicated he hadn't considered it before I raised the question and would have to study the issue. He has created a Patient Abuse and Protection Program to protect patients in nursing homes, assisted living residences and homes for the disabled. His office has investigative powers as part of this program, which is an outgrowth of the AG's role in investigating and reviewing licensed health care providers in Indiana. I think you can argue that the program Pence is advocating is analogous to the program the AG's office already has under its Patient Abuse and Protection Program. I'm not sure if her plan contemplates that the AG's office or the local prosecutors would actually prosecute the cases the AG's office investigates.
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Carter's patient abuse program is an outgrowth of the Medicaid Fraud Unit, which is based on delegated authority from federal law to investigate neglect and abuse cases. It ties in nicely with the power the AG has to prosecute medical licensing professionals under state law. What Pence is proposing would require a substantial change in state law and would require some management of the conflict that Zoeller raises. If one wants to take the investigation of such matters out the hands of the Dept of Child Services, perhaps a better position for such authority would be the Office of the Inspector General. It's not an elected Office, and it would require a statutory change, but it would provide the independence sought by Ms. Pence. The result would not fatten her new AG budget, alas.
She is right and can make the necessary changes.
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