A press release issued today by Kennedy asserts that Brizzi admits that he didn't prosecute Stewart as a habitual offender, and that he never pursues habitual, or “three-strikes,” enhancements for repeat criminals when the underlying charge is a misdemeanor drug charge. In Stewart's case, his prior offenses were a DUI and dealing cocaine, in addition to the marijuana dealing charge. Kennedy responds:
We’ve now learned that these habitual drug charges are willfully and intentionally never filed. Sadly this soft on crime approach puts people like James Stewart back on our streets. How can this city win a war on crime when the prosecutor refuses to use the most powerful weapons. When this prosecutor says he doesn’t file habitual criminal charges when it comes to repeat drug dealers like James Stewart, I think that goes a long way towards explaining rising crime.
Kennedy's statement quotes Brizzi as saying, "We don’t file that because the Department of Correction does not take those individuals.” In fact, as Kennedy points out, Indiana's habitual offender statute does permit the Department of Corrections to accept inmates who have more than 547 days remaining before the person's earliest release date as a result of consecutive midemeanor sentences, in addition to other circumstances, including good cause.
Civil libertarians have been very critical of the 3 strikes and you're out law because of the harsh sentencing that can result in some cases. To illustrate its impact, cases in California were highlighted where individuals charged with shoplifting wound up receiving 25-year prison sentences because of at least 2 prior convictions, leading to a challenge of that state's law. In 2003, the U.S. Supreme Court upheld the constitutionality of such sentencing schemes in Ewing v. California.
If Kennedy accepts the law as written and becomes prosecutor, similar results will likely happen here in Marion Co. if she applies the habitual offender statute across the board. But for now, she has exposed a significant weakness in Brizzi's argument that he has been doing all that he can to keep dangerous criminals off the street. Will that be enough to overcome her lack of prosecutorial experience? That's tough to say. But I bet this issue makes an effective 30-second TV campaign spot for Kennedy.