Experts say Court of Appeals ruling leaves death penalty in limbo

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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.”•


  • death penalty
    If the courts are 100% sure they are guilty then I am for the death penalty as long as they don't let them live 15 years by appeals. That way the family of the vic has put up with all the time not finished. It would change killers minds about what they were doing!!!

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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith ..

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.