By State Senator Karen Tallian
October 2019

Perhaps the most notable lesson of the Volstead Act, or more commonly known as Prohibition, is precisely this: Americans don’t like being told what not to do.

The 18th Amendment, which prohibited the manufacture, sale and transportation of alcohol from 1920 to 1933, was perhaps the only time in American history that freedoms were curtailed by the Constitution, instead of granted. It was a disastrous attempt for government to enforce morals.
When I first joined the legislature in 2006, simple possession of marijuana could still be a felony. As an attorney, I sat one day in a criminal court and watched one young person after another brought up on charges of marijuana possession and then saddled with fines, community service requirements and a criminal record. My thought: “What a waste!”

My top priority in my attempts at marijuana reform in the Senate were directed at keeping our young people out of trouble and avoiding a criminal record. That is the essence of decriminalization: no criminal record and no jail time. It took a couple years, but we finally managed to get rid of the felony possession charge. But, it is still unfortunately a criminal misdemeanor.

The Indiana Prosecuting Attorneys Council recently told the Criminal Code Committee that last year there were more than 22,000 arrests for marijuana possession in Indiana. The entire committee and audience appeared stunned. This should give us legislators a message: marijuana use is becoming more and more normalized and widely accepted.

And, like prosecutions during Prohibition, there is a disparity of enforcement. Black males are much more likely to be arrested and prosecuted, even though it is known that marijuana use rates are about equal between white and black populations. Like Prohibition, courts and jails were inundated with people being arrested; in fact, this is when the “plea deal” became commonplace – to deal with the huge numbers of alcohol scofflaws.

Was the Marion County prosecutor “right” to stop prosecuting marijuana cases for small possessions? Simply put, yes. An elected prosecutor has discretion, which may be one of the more important concepts in the criminal justice system. Certainly, other jurisdictions have done the same thing. Cook County, Illinois and New York City both made determinations that their jails were too full and the courts too crowded to continue to prosecute minor possession charges. Therefore, it is not outside the prosecutor’s discretion to end the prosecution of such cases.

Whether the Marion County prosecutor’s actions will cause other counties to take similar action, as what occurred in both Illinois and New York, is an open question. In either case, I will once again offer legislation in 2020 to decriminalize marijuana possession in Indiana so that we can get past this debate.