Indiana

Indiana

Indiana Appeals Court Voids State's Lethal-Injection Protocol

The Indiana Court of Appeals has voided the state's lethal-injection protocol. In a ruling on June 1, 2017, the state intermediate appeals court held that the Indiana Department of Corrections (DOC) had failed to comply with state rulemaking procedures when it adopted a never-before-used execution protocol without public notice or comment. In 2014, the DOC announced that it had adopted a new execution protocol "informally as an internal DOC policy." The protocol called for a three-drug lethal-injection combination of the barbiturate methohexital (Brevital), followed by pancuronium bromide, a paralytic, followed by potassium chloride to stop the prisoner's heart. No state has ever carried out an execution using that drug combination. Death-row prisoner Roy Lee Ward challenged the protocol, saying that DOC's use of informal internal procedures to put the protocol in place violated the Indiana Administrative Rules and Procedure Act (ARPA) and his right to due process. A lower court dismissed the lawsuit. On appeal, the DOC argued that it was exempt from the ARPA, but the appeals court flatly rejected that argument. It wrote: "If the legislature intended to exempt the DOC from the purview of ARPA altogether, or even to exempt the DOC’s execution protocols, it could have easily done so, but it has not." The court held, "[a]s a matter of law, DOC must comply with ARPA when changing its execution protocol, and its failure to do so in this case means that the changed protocol is void and without effect." David Frank, who represented Ward in the appeal, praised the ruling, saying "[t]he public has a right to know what unelected bureaucrats at state agencies are doing." The decision does not mean Indiana cannot carry out executions, he said, but "bring[s] what [Indiana is] doing out of the shadows" and makes state officials "accountable to the public." Indiana has not carried out an execution since 2009.

NEW VOICES: Bipartisan Former Governors Support Death Penalty Exemption for Those With Severe Mental Illness

In a joint op-ed for The Washington Post, former governors Bob Taft (pictured, l.) and Joseph E. Kernan (pictured, r.) have expressed bipartisan support for proposed legislation that would prohibit the use of the death penalty against people who have severe mental illness. Taft, a former Republican governor of Ohio, and Kernan, a former Democratic governor of Indiana, call the execution of mentally ill defendants "an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts." They highlight recent executions of Adam Ward, who exhibited symptoms of mental illness by the age of four, and decorated Vietnam War veteran Andrew Brannan, whom the Department of Veterans Affairs classified as 100% disabled as a result of his combat-related posttraumatic stress disorder and bipolar disorder, as examples of severely mentally ill defendants who "continue to be sentenced to death and executed" in the United States. Legislators in Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia have introduced legislation in 2017 that would prohibit the death penalty for people with severe mental illness, arguing that these defendants are less culpable, more vulnerable to wrongful conviction, and often falsely perceived by jurors as more dangerous. Taft and Kernan explain that "Legislation being considered on this topic varies by state, but each bill creates a case-by-case decision-making process—conducted by either a judge or jury—to determine if a defendant has a severe mental illness. Only those with the most serious diagnoses would qualify." They urge legislatures to pass these measures, saying, "This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency."

At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental Illness

Bills to exempt individuals with severe mental illness from facing the death penalty are expected in at least seven states in 2017. Legislators in Idaho, Indiana, North Carolina, Ohio, South Dakota, Tennessee, and Virginia have either introduced such legislation or announced that they plan to. Six of the seven states have sponsorship from Republican legislators, indicating bipartisan support for the measures. The author of Indiana's bill, Sen. James Merritt (pictured, R-Indianapolis), says he supports the death penalty but draws a “bright line of distinction” around executing people with severe mental illness. There are some variations in the bills, but each creates a process in which a determination is made—usually by a judge—whether the defendant qualifies for the exemption. Some bills define serious mental illness by particular diagnoses, others by behavioral impairments in functioning. Qualifying diagnoses under the exemption typically included Schizophrenia and Schizoaffective Disorder, Bipolar Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Traumatic Brain Injury. Defendants found to be suffering from severe mental illness would not be exempted from criminal responsibility, but would be subject to a maximum sentence of life without parole. Numerous mental health organizations have called for an exemption to the death penalty for individuals with severe mental illness. The measures have the support of the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), Mental Health America (MHA), and state-level coalitions of mental health advocates. In December 2016, the American Bar Association held a national summit and issued a white paper in support of a severe mental illness exemption. Several religious leaders also have spoken out in favor of the exemption. Richard Cizik, President of the New Evangelical Partnership for the Common Good, wrote an op-ed for The Virginian-Pilot in late January saying, "Their conditions affect many aspects of the legal process, impacting their appearance in court, the jury’s perception of ticks or socially inappropriate interactions, the defendant’s presentation of facts, and even their own admission of guilt. Indeed, studies have shown that defendants with severe mental illness are more likely to give a false confession. ...As a faith leader, I am compelled to advocate for compassionate and fair laws such as this." Glenn Tebbe, executive director of the Indiana Catholic Conference, called the bill "prudent and just."

States Struggle with Determinations of Competency to Be Executed

A recent article in Mother Jones examines lingering questions in the determination of which inmates are exempt from execution because of mental incompetency. In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that a person could not be executed if he or she was "unaware of the punishment they're about to suffer and why they are to suffer it." The 2007 ruling in Panetti v. Quarterman updated that decision, with Justice Anthony Kennedy writing, "A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it." Scott Panetti (pictured), the inmate involved in the 2007 case, knew that the state of Texas planned to execute him for the murder of his in-laws, but also sincerely believed that he was at the center of a struggle between God and Satan and was being executed to stop him from preaching the Gospel. Even after the case with his name was decided, Panetti remained on death row, and the Texas courts found him competent to be executed based upon the testimony of a single psychiatrist who claimed Panetti was faking his mental illness. Panetti came within hours of execution on December 3, 2014, before the U.S. Court of Appeals for the 5th Circuit issued a stay. In Missouri, Cecil Clayton -- a brain-damaged man with an IQ of 71 -- was executed on March 17, 2015 without a hearing to determine his competency. By contrast, a recent mental competency hearing for Indiana inmate Michael Overstreet included four days of testimony from 13 witnesses and nearly 1,300 pages of medical records. In a 137-page opinion, the state judge concluded, "Delusions or other psychotic symptoms cannot simply be discounted because a petitioner has a cognitive awareness of his circumstances." Indiana's Attorney General said that the decision adhered so well to the Panetti ruling that there was nothing for the state to appeal.

Recent Lethal Injection Developments in Texas, Missouri, and Indiana

As states continue to seek alternative drugs and drug sources for lethal injections, three significant developments occurred last week. Indiana announced recently that they would use Brevital, an anesthetic, as the first drug in its three-drug protocol. On May 27, Par Pharmaceutical, the producer of Brevital, released a statement announcing efforts to prevent the use of their product in executions. The statement said, "The state of Indiana’s proposed use is contrary to our mission. Par is working with its distribution partners to establish distribution controls on Brevital® to preclude wholesalers from accepting orders from departments of correction." On May 29, Missouri Attorney General Chris Koster gave a speech in which he suggested that the state of Missouri begin producing execution drugs. Missouri has had difficulty obtaining lethal injection drugs and faced challenges to its lethal injection secrecy law. Koster said that state production of the drugs would increase transparency, adding, "As a matter of policy, Missouri should not be reliant on merchants whose identities must be shielded from public view or who can exercise unacceptable leverage over this profound state act.” Missouri would be the first state to set up a state-operated lab for producing execution drugs. In Texas, Attorney General Greg Abbott issued an order defending secrecy for lethal injection drug sources. The statement represents a reversal for the Attorney General, who had previously rejected arguments from the Department of Criminal Justice that secrecy was necessary.

Paula Cooper, Youngest Person Sentenced to Death in Indiana, To Be Released From Prison

Paula Cooper, who was 15 years old at the time of her crime, and the youngest person ever sentenced to death in Indiana, will be released from prison on June 17, twenty-seven years after her conviction for the murder of 78-year-old Ruth Pelke. Her case received international attention, sparking a campaign that led to the commutation of her death sentence to 60 years in prison. An appeal to the Indiana Supreme Court received over 2 million signatures from around the world. Pope John Paul II asked that Cooper's sentence be reduced. Bill Pelke, the grandson of Ruth Pelke, forgave and befriended Cooper and wrote a book, Journey of Hope...From Violence to Healing, about his experience with the case.

ARBITRARINESS: Officials Discuss Indiana's "Other Lottery"--the Death Penalty

Officials in Indiana recently discussed how rarely the death penalty is applied in the state and the issues that raises regarding its purpose. Professor Joel Schuum of the McKinney School of Law in Indiana chaired a study by the American Bar Association that found "only a few of Indiana's murder cases result in a prosecutor seeking a death sentence, fewer still result in the imposition of a death sentence by a jury or judges, and only a handful over the past 3 decades have resulted in the execution of a defendant." Schuum added, "It's Indiana's other lottery, because it's hard to decide. You have all these horrible murder cases. Who is the worst person? If only 1 % of these people are going to get the death penalty, what makes someone especially deserving of that?" Indiana Public Defender Council Executive Director Larry Landis agreed, "The rationalization that the proponents give is that: we need the death penalty for the worst of the worst. But, if you look at all the people who have been charged and the people who get the death penalty, no rational person can say--that's the worst of the worst." The discussion arose because prosecutors in Marion County recently elected not to seek death against 3 defendants charged with murder. There has not been a death penalty trial in Marion County in over a decade. The cost of the death penalty may be one reason. A 2010 fiscal report by the Legislative Services Agency found that the average cost of a death penalty trial was around $450,000. Some cases have cost more than $1 million. In contrast, the same study found that the average trial and cost of appeal of a life-without-parole case was one-tenth as much, $42,658. "As soon as they file that notice that they're seeking death, that defendant is going to get 2 lawyers paid at taxpayer expense at over $100 per hour. They're going to get unlimited experts. If there is a jury, it's going to have to be sequestered. There's going to be all sorts of added costs to that," Prof. Schuum noted.

DPIC RESOURCES: New State Pages Now Available

DPIC is pleased to announce the completion of our State Information Pages for all 50 states and the District of Columbia.  These state profiles provide historical and current information on the death penalty for each state, including famous cases, past legislative actions, and links to key organizations and state officials.  For frequently updated information, such as execution totals, the size of death row, or the number of exonerations, see our State-by-State Database.  Readers are encouraged to send additional information, pictures, and links to organizations in their state.  You can reach the State Information Pages through the "State by State" button at the top of every page on our website or under the "Resources" tab in our main menu.

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