The photo above may look familiar. There are multiple versions of this threatening sign near the Lake County Jail. One apparent purpose of the sign and its prohibition of “unauthorized communications with Inmates” is to maintain a safe distance between the public and “trusty” inmates who venture outside for some useful task such as exercising dogs from the adjacent Lake County animal shelter. For trusted inmates to exercise shelter dogs is a good thing, and I applaud the Sheriff for that program. But say that some good citizen is driving along 93rd Avenue and sees a beautiful, engaging dog behaving perfectly on a leash held by an inmate. Can the good citizen legally stop and ask the dog’s name and whether the dog is available for adoption? According to the sign, the good citizen motorist would need “authorization” (in advance?) (from the Sheriff?) to inquire about the dog. You should share my discomfort with the threat of criminal prosecution over spoken (or written) words. But no First Amendment analysis is needed to debunk the threat from the Sheriff’s sign.

Let’s look at the statutory citation from the sign: IC 35-44-3-9. That portion of the Title 35 Criminal Code dealt with “Public Administration Offenses” and “Interference with government.” One problem with the citation (and the sign) is that IC 35-44-3-9 was repealed effective July 1, 2012. To be fair, I should note that the sign probably pre-dates the 2012 repeal and may pre-date the onset of the latest regime of the current sheriff. Still, the repeal was three years ago, and the sign remains.

In Indiana the “repeal” of a criminal prohibition statute most often means that it remains in the Criminal Code but at a different (recodified) location, perhaps with amendments. And that is the case here. A very similar prohibition to that found in the repealed statute is now found at IC 35-44.1-3-5. The BIG problem with the Sheriff’s sign is not the obsolescence of the statutory citation. Rather, the BIG problem is that the statute (former and current) does not come close to prohibiting (as the sign states) “unauthorized communications” with inmates. To the contrary, the statute (former and current) prohibits trafficking with inmates inside a facility or elsewhere in a “jail work crew.” Examples of trafficking include delivery of alcohol, tobacco, weapons, and cell phones. No part of the statute (former and current) prohibits “unauthorized communications” with inmates.

Notably, IC 35-44.1-3-6 (formerly IC 35-44-3-9.3) is titled “Trafficking with an inmate outside a facility” but applies only to certain convicted persons (as opposed to pretrial detainees) in transit between jail and court. While IC 35-44.1-3-5 (formerly IC 35-44-3-9) applies mostly to trafficking with inmates inside a facility, its scope includes a “jail work crew” outside the prison walls. If any mentioned statute applies to the inmate dog walker, it would be IC 35-44.1-3-5 (formerly IC 35-44-3-9).

Should it be unlawful to speak to a jail inmate outside the facility? That would be a question for the General Assembly. To date, it is not a crime to speak to a jail inmate outside the facility. That circumstance seems to be of no concern to the Sheriff in maintaining his prominent signs threatening prosecution for lawful speech. Sheriff, read the statute and take the signs down, please. Ignorance of the law is no excuse.

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