Commentary: Indiana Death Penalty — Expensive, Unreliable, and Withering on the Vine

With no exe­cu­tions in more than a decade and no new death sen­tences since 2014, Indiana​’s cost­ly death penal­ty has reached a ​“de fac­to mora­to­ri­um,” says Indiana Capital Chronicle edi­tor-in-chief Niki Kelly. “[M]aybe it’s time to be intel­lec­tu­al­ly hon­est and admit Indiana no longer has the death penal­ty,” Kelly wrote in a September 2, 2022 commentary. 

“Instead of hav­ing eight men sit for years under the neb­u­lous threat of death,” Kelly argues, ​“per­haps [Governor Eric] Holcomb and/​or leg­is­la­tors should com­mute those sen­tences to life in prison with­out parole and join the 23 states that don’t have the death penalty.”

The data on Indiana’s death penal­ty shows an expen­sive, error-prone sys­tem that has fall­en out of favor with juries. Over the last decade, Indiana pros­e­cu­tors have sought the death penal­ty six time in cas­es involv­ing the killing of a police offi­cer. None of those cas­es result­ed in a death sentence. 

A 2015 report by the state’s Legislative Services Agency found that the aver­age cost of a death-penal­ty tri­al and direct appeal ($385,458) was near­ly ten times the aver­age cost of the tri­al and appeal for a case with a max­i­mum sen­tence of life with­out parole ($39,414). A cap­i­tal case resolved pre­tri­al with a plea bar­gain still cost more than five times as much as a non­cap­i­tal tri­al and appeal, the Indiana Public Defender Commission found, cost­ing tax­pay­ers an aver­age of $212,549 for the same out­come as a con­test­ed noncapital case.

According to the Indiana Public Defender Council, only about one-fifth of the death sen­tences imposed since 1977 have result­ed in an exe­cu­tion. Of the 97 peo­ple sen­tenced to death in Indiana, the state has exe­cut­ed 20. (Two oth­ers were exe­cut­ed in oth­er states for oth­er offens­es.) By far, the most like­ly out­come of a death sen­tence in Indiana, as in the U.S. at large, is that the sen­tence will be reversed or com­mut­ed. Sixty-one of the 97 peo­ple sen­tenced to death (62.8%) have had their death sen­tence reversed by a court, com­mut­ed by the gov­er­nor, or dis­missed under an agree­ment with the state.

The eight men cur­rent­ly on Indiana’s death row are fac­ing what defense attor­ney Eric Koselke described as ​“cru­el and unusu­al pun­ish­ment.” ​“Those guys are just sit­ting there, cap­tive, to peo­ple who they know, one day, are going to kill them, and they don’t even know when they’re going to die,” he said. One pris­on­er has been on death row for near­ly 30 years, since 1993. The last to be added was sen­tenced to death in 2014.

Like many oth­er states, Indiana has strug­gled to obtain lethal-injec­tion drugs. The state passed a secre­cy law in 2017 to exempt records on lethal injec­tion from the state’s pub­lic records law, argu­ing that it was ​“prac­ti­cal­ly impos­si­ble” to get drugs with­out con­fi­den­tial­i­ty for drug sup­pli­ers, but it has not pro­cured the chem­i­cals for exe­cu­tions in the five years since.