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Experts say Court of Appeals ruling leaves death penalty in limbo

June 14, 2017

The death penalty in Indiana cannot be carried out as of June 1. That’s the day a Court of Appeals panel declared the lethal injection cocktail adopted by the Department of Correction “void and without effect” because the agency enacted its execution protocol without hearings or public input.

Legal experts from Indiana’s law schools said the decision casts uncertainty on the death penalty going forward, though they said by no means is the court’s ruling a moratorium on future executions.

Lyon Lyon

“We’re at least 18 months to two years before anything happens” in terms of the state adopting a new execution protocol, predicted Valparaiso University Law School Dean Andrea D. Lyon, who’s written several books and scholarly articles on the death penalty. She explained that for the DOC to continue to carry out executions, it’s left with two options — seek to appeal the decision to the Indiana Supreme Court or begin the administrative rulemaking process. Neither of those processes would quickly resolve how Indiana executes death row inmates.

“I would be surprised if the Indiana Supreme Court took the case,” Lyon said. “It’s a pretty clear administrative ruling that follows a lot of precedent and a lot of common sense … even though it’s on a volatile subject.”

“We are disappointed with the Court of Appeals’ decision,” said Corey Elliot, spokesman for Attorney General Curtis Hill, after the panel ruled in Roy Lee Ward v. Robert E. Carter, Jr., Commissioner of the Indiana Department of Correction, and Ron Neal, Superintendent of the Indiana State Prison, in their official capacities, 46A03-1607-PL-1685. “At this point, we are closely reviewing the case, consulting with our client agency and considering all possible options, one of which is to ask the Indiana Supreme Court to review the case.”

The COA reversed LaPorte Circuit Judge Thomas J. Alevizos’ dismissal of a death row inmate’s civil case. Judge John Baker wrote for the court that the Legislature did not explicitly exempt the DOC from the Administrative Rules and Procedure Act, so it must conduct public hearings and accept public comments in formulating an agency rule on how the state will carry out executions.

Administrative review could present the DOC with more political than practical problems, Indiana University Robert H. McKinney School of Law professor David Orentlicher and other experts said. An administrative rules procedure would compel DOC to propose its execution protocol, which would then be subject to public hearings, public comment, and heightened scrutiny.

orentlicher-dave-mug.jpg Orentlicher

“Part of the reason it’s become difficult to execute is public sentiment has shifted so much,” Orentlicher said. He and others noted Americans are no longer solidly in favor of capital punishment, and some surveys have shown an even divide or a majority who disfavor the death penalty. Botched executions and wrongful convictions in the news in recent months are part of the reason support for lethal injection has declined, he said.

Meanwhile, Orentlicher said companies don’t want to be known as manufacturers of drugs used as part of the lethal-injection cocktail, and fewer physicians are willing to assist in administering a fatal dose.

Racial bias and other factors also play a role in declining support for the death penalty, he said, and studies show executions are not always reserved for those cases deemed “the worst of the worst.”

Among other things, “It depends on the prosecutor, the jury, and how good your defense lawyer is,” he said. “What we’re finding is, it turns on inappropriate factors, who gets the death penalty.”

Notre Dame Law School professor Rick Garnett also noted the ruling came against the backdrop of ongoing debate about the death penalty generally, and lethal injection in particular. Nevertheless, he said the DOC could adopt the same lethal injection protocol that the COA voided, which includes a drug never used in a U.S. execution, as long as it does so in accordance with ARPA.

garnett Garnett

“Even if the ruling stands, it does not directly limit Indiana’s ability to impose capital punishment but instead only requires the development of rules,” Garnett said.

Still, he said, “Several high-profile cases have reminded the public that the mere fact lethal injections appear clinical and ‘modern’ does not mean they are humane. Many have argued that far greater care is needed by state officials and prison administrators to make sure that, assuming capital punishment continues, condemned criminals do not suffer painfully and unconstitutionally.”

Indiana University Maurer School of Law professor Joseph Hoffmann doubts the ruling will have long-term implications for the death penalty in Indiana. “The Indiana Court of Appeals basically said if the Department of Correction wants to make a new protocol for a lethal injection drug, it needs to be treated as an agency rule” rather than as a policy, as the state had argued. “It doesn’t say anything at all about the merits. … The agency is free in the end to make whatever decision it thinks is the right decision.”

hoffmann-joseph-mug Hoffmann

Even so, he noted, “Right now, obviously, nationwide, these drug protocols are getting all kinds of scrutiny.”

Indiana’s voided formulation — a never-before-tried drug called methohexital (known by the brand name Brevital), along with pancuronium bromide and potassium chloride — was adopted internally by DOC and disclosed some time later.

Before Steve Creason, the Office of the Indiana Attorney General’s chief counsel of appeals, could begin his defense of the DOC’s protocol during oral arguments last month, he faced a hypothetical about the state’s means of execution from presiding Judge Baker.

“So, you have a press conference tomorrow and you say, ‘You know what we’re going to use? We’re going to use water.’ Is that OK?”

“Yes,” Creason said, before clarifying, “That probably wouldn’t meet legal requirements related to cruel and unusual punishment.”

Roy Lee Ward, the plaintiff in this case, was sentenced to death in 2007 for the 2001 rape and murder of 15-year-old Stacy Payne in Spencer County. According to the DOC’s website, there are 12 men on Indiana’s death row at the Indiana State Prison in Michigan City. One of the men, Wayne Kubsch, had his conviction and sentence tossed out last year by the full 7th Circuit Court of Appeals and is awaiting retrial. A woman on Indiana death row is housed in Ohio.

Representing Ward, Fort Wayne attorney David Frank said the state sought to characterize Ward’s suit as an attempt to bar the death penalty, which he said wasn’t the case. No executions are currently scheduled.

The DOC “was trying to issue a new lethal injection protocol by themselves that has never been used,” Frank said. “Before we execute a human being in manner that’s never been done before in the history of country, maybe we should have some public discussion on it.”

Lyon noted more states have abandoned the death penalty, and there isn’t the political danger there once was for politicians to oppose capital punishment. “Indiana,” she noted, “is alone in the 7th Circuit with the death penalty.”•

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