Lawyers for Marcus Dansby (pic­tured), a defen­dant fac­ing cap­i­tal mur­der charges in Allen County, Indiana, have filed a motion ask­ing the tri­al judge to declare Indiana’s death penal­ty uncon­sti­tu­tion­al and to bar pros­e­cu­tors from seek­ing death in his case. In plead­ings sub­mit­ted to the court on October 30, 2018 in sup­port of Dansby’s Motion to Declare Indiana’s Capital Sentencing Statute Unconstitutional, lawyers Michelle Kraus and Robert Gevers allege that sys­temic defects in the admin­is­tra­tion of cap­i­tal pun­ish­ment from the pre-tri­al stage through state and fed­er­al review vio­late due process, the right to a jury tri­al, and state and fed­er­al con­sti­tu­tion­al pro­hi­bi­tions against cru­el and unusu­al pun­ish­ment. In a sep­a­rate motion, he seeks to bar the use of the death penal­ty in his case based on his age at the time of the offense.

Relying on Indiana mur­der and exe­cu­tion data over a 26-year peri­od between 1990 and 2015, Dansby’s motion argues that the state’s death penal­ty ​“is imposed arbi­trar­i­ly and capri­cious­ly, with an inap­pro­pri­ate­ly high risk of dis­crim­i­na­tion and mis­take.” Kraus and Gevers allege that, even with pros­e­cu­tors seek­ing death sen­tences in only one out of every 129 homi­cides from 2006 thru 2015 and exe­cu­tions occur­ring in only one out of every 535 homi­cides dur­ing the 26-year study peri­od, the state’s pros­e­cu­tors are not ​“engag­ing in a care­ful win­now­ing process to iden­ti­fy the ​‘worst of the worst’ offend­ers and offens­es for cap­i­tal charg­ing” and ​“the worst mur­der­ers and worst mur­ders do not result in death sen­tences.” Instead, the motion argues, ​“geog­ra­phy, qual­i­ty of defense rep­re­sen­ta­tion and race” dis­pro­por­tion­ate­ly deter­mine who is sen­tenced to death. Kraus told The (Fort Wayne) Journal Gazette that the fil­ings were a nec­es­sary part of her clien­t’s defense, adding, ​“Across the nation, I think we’re see­ing more and more the death penal­ty is falling out of favor.” Two state supreme courts have recent­ly declared death penal­ty statutes uncon­sti­tu­tion­al: Delaware in 2016 and Washington in October 2018, and a Kentucky tri­al court found the death penal­ty uncon­sti­tu­tion­al for offend­ers younger than age 21 in 2017.

The motion also argues that the Indiana death penal­ty is ​“dis­pro­por­tion­ate and vin­dic­tive” and ​“has no deter­rent effect,” vio­lat­ing both the U.S. and Indiana Constitutions. Citing research on cap­i­tal jurors in Indiana and oth­er states, the attor­neys state that the cap­i­tal jury selec­tion process ​“cre­ates juror bias for the death penal­ty,” and that “[m]any cap­i­tal jurors decide the penal­ty in cap­i­tal cas­es before the penal­ty phase, in vio­la­tion of a cap­i­tal defendant’s right to an indi­vid­u­al­ized sen­tenc­ing deter­mi­na­tion.” Indiana’s death-penal­ty scheme ​“vio­lates due process of the law … and the Eighth Amendment pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment,” the motion asserts ​“because the Indiana Supreme Court has failed to devel­op a ratio­nal and uni­form analy­sis for the appel­late review of death sen­tences.” The accom­pa­ny­ing mem­o­ran­dum of law pro­vides detailed evi­dence for the propo­si­tion that, based on Justice Stephen Breyer’s dis­sent in Glossip v. Gross (2015) and the U.S. Supreme Court’s deci­sion in Hurst v. Florida (2016), ​“Indiana’s four (4) decade exper­i­ment with the death penal­ty is a constitutional failure.”

Dansby’s lawyers also chal­lenge Indiana’s sys­tem of judi­cial sen­tenc­ing, which they say vio­lates U.S. Supreme Court deci­sions giv­ing cap­i­tal defen­dants the right to have a jury decide all facts that can lead to a death sen­tence. In a sep­a­rate motion, they seek to extend Supreme Court case law that cur­rent­ly pro­hibits the use of cap­i­tal pun­ish­ment against defen­dants younger than age 18 when the offense occurred. They cite recent brain sci­ence stud­ies that show that key por­tions of the brain are still not ful­ly devel­oped in ado­les­cents aged 21 and younger and argue that pros­e­cu­tors should be barred against seek­ing the death penal­ty against Dansby because he was just 20 years old at the time of the crime.

(Matthew LeBlanc, Reject death penal­ty, judge asked, The Journal Gazette, November 1, 2018.) Read the Motion to Declare Indiana’s Capital Sentencing Statute Unconstitutional and the accom­pa­ny­ing Memorandum in Support. See Arbitrariness.

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