Indiana’s First Execution in 15 Years Raises Serious Constitutional Concerns

If Joseph Corcoran had been sen­tenced to death just a few miles to the east, across the bor­der in Ohio instead of in Fort Wayne, Indiana, it’s like­ly that a court would have barred his exe­cu­tion. Ohio law pre­vents a per­son with a seri­ous men­tal ill­ness (SMI) at the time of their crime, defined as schiz­o­phre­nia, schizoaf­fec­tive dis­or­der, bipo­lar dis­or­der, or delu­sion­al dis­or­der, from being put to death. Mr. Corcoran, who has a long his­to­ry of para­noid schiz­o­phre­nia diag­noses by at least five dif­fer­ent doc­tors, vol­un­teered for exe­cu­tion and believes that prison guards are tor­tur­ing him with an ultra­sound machine. But Indiana has no SMI law, and Mr. Corcoran is sched­uled for exe­cu­tion before sun­rise on Wednesday, December 18 — the state’s first exe­cu­tion in 15 years. Unlike all oth­er active death penal­ty states, jour­nal­ists will not be allowed to observe. Indiana’s effort to restart exe­cu­tions has pro­voked seri­ous con­cerns about Mr. Corcoran’s men­tal com­pe­ten­cy, his right to have a spir­i­tu­al advi­sor present in the death cham­ber, and the state’s lack of trans­paren­cy. Spiritual groups, vic­tims’ fam­i­ly mem­bers, and the orig­i­nal pros­e­cu­tor in the case all favor stop­ping Mr. Corcoran’s execution.

“The Torture That Is Not Real” 

Evidence of Mr. Corcoran’s seri­ous men­tal ill­ness dates to his ear­ly child­hood, includ­ing self-iso­la­tion, self-harm, and ​“extreme para­noia.” At age 22 in 1997, he shot his broth­er, his sister’s fiancé, and two friends after over­hear­ing the men talk­ing about him. He imme­di­ate­ly admit­ted guilt and asked a neigh­bor to call the police. Before tri­al, he reject­ed a plea deal, say­ing he would only agree if the state ​“would sev­er his vocal cords first because his invol­un­tary speech allowed oth­ers to know his inner­most thoughts.” Five doc­tors who diag­nosed him with schiz­o­phre­nia con­clud­ed that he was incom­pe­tent to stand tri­al or waive his appeals, but courts per­mit­ted him to do both even as they acknowl­edged his delusions. 

To deter­mine whether a per­son is com­pe­tent to be exe­cut­ed, courts ask only whether the per­son has a ​“ratio­nal under­stand­ing” of their pun­ish­ment — a low stan­dard open to inter­pre­ta­tion that has result­ed in the exe­cu­tion of many peo­ple with evi­dence of severe men­tal ill­ness. When a men­tal­ly ill death-sen­tenced pris­on­er seeks to waive appeals and ​“vol­un­teer” for exe­cu­tion, courts might not even con­duct a com­pe­ten­cy hear­ing, because Indiana law requires the prisoner’s approval for any fil­ings chal­leng­ing an exe­cu­tion. For this exact rea­son, Mr. Corcoran is sched­uled for exe­cu­tion based on a com­pe­ten­cy deter­mi­na­tion from twen­ty years ago. In a recent piece of writ­ing titled ​“Electronic Harassment: A Whistle-blow­er Report,” Mr. Corcoran described his belief that the Indiana State Prison uses a secret ultra­sound machine to con­trol his thoughts and sleep. But no court has held a hear­ing on that evi­dence; the Indiana Supreme Court ruled by a 3 – 2 vote on December 5 that his defense attorney’s peti­tions for a com­pe­ten­cy hear­ing could not be con­sid­ered because Mr. Corcoran did not autho­rize any efforts to delay his execution.

In dis­sent, Indiana Supreme Court Justice Christopher Goff, joined by Chief Justice Loretta Rush, argued that the court should have stayed Mr. Corcoran’s exe­cu­tion and ordered a psy­chi­atric exam­i­na­tion to com­ply with con­sti­tu­tion­al require­ments for com­pe­ten­cy. ​“To ignore these find­ings now and pro­ceed with exe­cu­tion with­out a cur­rent com­pe­ten­cy eval­u­a­tion amounts to enabling his delu­sions — a state-sanc­tioned escape from suf­fer­ing rather than a mea­sured act of jus­tice,” Justice Goff wrote. 

Justice Goff raised fur­ther con­cerns about the abil­i­ty to waive appeals at all. ​“Allowing a per­son to ​‘vol­un­teer’ for exe­cu­tion — whether by choos­ing to with­hold mit­i­gat­ing evi­dence at sen­tenc­ing, waiv­ing the right to appel­late review, or elect­ing not to seek post-con­vic­tion relief — threat­ens to under­mine the state’s height­ened-reli­a­bil­i­ty inter­ests in death-penal­ty cases…and ulti­mate­ly ​‘threat­ens to dimin­ish pub­lic con­fi­dence in the integri­ty of the judi­cial sys­tem,’” he wrote. These com­ments echo Supreme Court Justice Thurgood Marshall’s warn­ing in 1979, soon after the first exe­cu­tions in the mod­ern era of the death penal­ty were con­duct­ed — most­ly of vol­un­teers — that “[s]ociety’s inde­pen­dent stake in enforce­ment of the Eighth Amendment’s pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment can­not be over­rid­den by a defendant’s purported waiver.” 

Justice Marshall called the vol­un­teer process ​“noth­ing less than state-admin­is­tered sui­cide.” A recent DPI analy­sis found that 87% of vol­un­teers have known men­tal ill­ness or sub­stance abuse issues, and the rate of vol­un­teer­ing for exe­cu­tion is ten times high­er than the sui­cide rate for the gen­er­al pub­lic — but near­ly iden­ti­cal to the rate of sui­cide on death row.

On December 17, the Seventh Circuit Court of Appeals denied Mr. Corcoran a stay of exe­cu­tion in a 2 – 1 deci­sion. In dis­sent, Judge John Z. Lee wrote that the court was wrong to assume Mr. Corcoran’s com­pe­tence for exe­cu­tion based on a two-decade-old deter­mi­na­tion of com­pe­tence to waive appeals, which had used a dif­fer­ent stan­dard. Judge Lee wrote that the ​“record con­tains undis­put­ed and exten­sive expert evi­dence of Corcoran’s para­noid schiz­o­phre­nia and the resul­tant per­va­sive delu­sions from which he has long suffered.”

When asked if Mr. Corcoran is men­tal­ly ill, Governor Eric Holcomb acknowl­edged that ​“he is,” but did not say whether he will grant clemen­cy on that basis. ​“I will reserve my final judg­ment until every step, every legal recourse and step, has been exhaust­ed,” he said.

“A Hostility Toward Religion”

The Indiana Department of Corrections (IDOC) ini­tial­ly denied Mr. Corcoran’s request for a spir­i­tu­al advi­sor in the exe­cu­tion cham­ber, but reversed course on December 12 after Mr. Corcoran’s attor­neys filed a fed­er­al law­suit argu­ing that the deci­sion dis­played ​“a hos­til­i­ty toward reli­gion.” IDOC will now allow Reverend David Leitzel, who has known Mr. Corcoran since he was 12 years old, to pray with him in the exe­cu­tion cham­ber and have lim­it­ed phys­i­cal con­tact, such as hold­ing his hand.

In ini­tial­ly deny­ing the request, IDOC Chief Legal Officer Anna Quick had argued that ​“IDOC takes the anonymi­ty of our staff very seri­ous­ly and will not per­mit an out­side per­son in the death cham­ber, as the safe­ty, secu­ri­ty and secre­cy of those staff could be com­pro­mised.” But defense attor­neys respond­ed that ​“every oth­er state that active­ly car­ries out exe­cu­tions as a pol­i­cy mat­ter allows spir­i­tu­al advi­sors to be present, phys­i­cal­ly touch, and talk qui­et­ly with their spir­i­tu­al charge as they are dying.” They argued that IDOC’s pol­i­cy would ​“pro­hib­it Mr. Corcoran’s free exer­cise of his Christian faith in the cru­cial moments lead­ing to his pas­sage to the afterlife.”

The same day the IDOC announced Rev. Leitzel could be present in the cham­ber, sev­en­ty faith lead­ers deliv­ered a signed let­ter to Gov. Holcomb oppos­ing Mr. Corcoran’s exe­cu­tion. “[W]e long to see the mer­cy, com­pas­sion, equi­ty, and jus­tice of God reflect­ed in pub­lic poli­cies that pro­mote safe­ty, human dig­ni­ty, and heal­ing for all Hoosiers,” the faith lead­ers wrote. In a clemen­cy let­ter, Mr. Corcoran’s attor­neys urged Gov. Holcomb that the ​“tak­ing of Joe’s life, espe­cial­ly dur­ing the Christmas sea­son, rebukes the fun­da­men­tal Christian belief that all peo­ple are wor­thy of redemp­tion through God’s grace and love.” 

State Rep. Bob Morris, a Republican rep­re­sent­ing the Fort Wayne area where Mr. Corcoran was sen­tenced, also joined the cho­rus oppos­ing his exe­cu­tion. He said that he intends to intro­duce a death penal­ty abo­li­tion bill in the 2025 ses­sion based on his belief that ​“only one posi­tion hon­ors our Lord and Savior, our Creator: to pro­tect all human life.”

“Denied Virtually Every Information Request”

Indiana’s refusal to allow jour­nal­ists to wit­ness the exe­cu­tion com­pounds the con­sti­tu­tion­al risks. Indiana is one of just two states, along with Wyoming, that entire­ly bars media access to exe­cu­tions; oth­er states allow as many as 12 reporters to observe. Media pres­ence is cru­cial because the media serves as the public’s eyes and ears, doc­u­ment­ing how the state is using tax­pay­er funds and resources. In the past, media wit­ness­es have played cru­cial roles in expos­ing botched exe­cu­tions, even where state offi­cials denied any problems. 

Indiana jour­nal­ist Niki Kelly report­ed that IDOC has ​“denied vir­tu­al­ly every infor­ma­tion request relat­ed to the exe­cu­tion,” includ­ing ​“how many vials were bought, what it cost, the expi­ra­tion date.” Other states have spent hun­dreds of thou­sands of dol­lars on exe­cu­tion drugs in recent years, from dubi­ous sources such as over­seas busi­ness­men and com­pound­ing phar­ma­cies with his­to­ries of health and safe­ty vio­la­tions. Ms. Kelly filed a com­plaint with the state’s Public Access Counselor to try to learn more about how Indiana obtained the drugs after a 15-year effort, but was denied any infor­ma­tion based on recent leg­isla­tive changes that restrict the counselor’s powers. 

The ​“leg­is­la­ture tied the access counselor’s hands behind his back and Hoosiers have to instead file a law­suit to get an answer…it’s clear Hoosiers won’t know what the state of Indiana spent when Corcoran takes his last breath,” Ms. Kelly wrote. ​“Public access and trans­paren­cy have tak­en a beat­ing dur­ing the process to resume executions…[and] that hurts pub­lic con­fi­dence in the system.” 

“At A Loss For Words”

Officials often describe exe­cu­tions as ​“clo­sure” for the victim’s fam­i­ly and the jus­tice sys­tem — but the peo­ple clos­est to the case oppose Mr. Corcoran’s exe­cu­tion. His sis­ter Kelly Ernst, who was also the sis­ter of one of the vic­tims and engaged to anoth­er of the vic­tims, said that ​“his fam­i­ly wants a par­don,” and she and her twin sis­ter will not attend the exe­cu­tion if it goes for­ward. ​“It’s not going to pro­vide clo­sure for any­one involved,” Ms. Ernst said. ​“He’s mentally ill.” 

Robert Gevers, the elect­ed pros­e­cu­tor for Allen County at the time of the crime, per­son­al­ly obtained the death sen­tence against Mr. Corcoran — but says ​“if it were on my plate today, I would prob­a­bly act differently.”

“Times have changed, my own think­ing has changed,” Mr. Gevers said. ​“The death penal­ty is ret­ri­bu­tion. That’s all it is. Saving someone’s life is grace. So, are we a soci­ety about ret­ri­bu­tion or grace?”