State appeals ruling that suspended death penalty

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An Indiana Court of Appeals decision that suspended executions in the state violated the separation of powers and resulted in new, unintended burdens that could lead to “dysfunction” in carrying out executions, the state argues in seeking transfer to the Indiana Supreme Court.

The state on July 3 petitioned justices to review a Court of Appeals ruling that held Indiana’s lethal injection formulation that included an untried drug was “void and without effect.” The court ruled that the Department of Correction was bound to enact new lethal-injection protocols under the state’s Administrative Rules and Procedures Act through rulemaking subject to public review and comment, which it did not do.

“While the Court of Appeals opinion purports to effectuate the policy choices of the legislature … it eschewed that legislative judgment and substituted its own,” the state argues in its petition to transfer the case to the Indiana Supreme Court. “This violation of the separation of powers has resulted in confusion in how capital punishment should be administered, potentially enlarged the role of the judiciary in supervising the administration of prisons, and moved Indiana down the wrong path for ensuring a fair and reasonable system of capital punishment.”

“It appears the state is presenting the same arguments that were previously rejected by the Court of Appeals. We intend to bring that to the attention of the Supreme Court,” said David Frank, a Fort Wayne attorney who represents Roy Lee Ward. The case is 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.

“We think the Court of Appeals made a very persuasive, very sound decision on the black-letter law, and we will ask the Supreme Court to deny transfer so we can move forward on our case on the merits,” Frank said.

Gov. Eric Holcomb issued a statement when asked to comment on the case and the state of capital punishment in Indiana moving forward.

“The citizens of Indiana have clearly expressed their belief that the death penalty ought to be an option for the worst and most extreme offenses, and I respect that and agree with them. That said, there should not be a shred of doubt an individual is guilty of the most heinous offense if the death penalty is a consideration.”

A death row inmate, Ward successfully challenged the DOC’s method of execution that had been developed internally without public review. The formulation of a three-drug lethal injection “cocktail” included a drug never tried in a state or federal execution — methohexital (known by the brand name Brevital) — along with pancuronium bromide and potassium chloride.

Ward was sentenced to death in 2007 for the 2001 rape and murder of 15-year-old Stacy Payne in Spencer County. He is one of 12 people on Indiana’s death row at the Indiana State Prison in Michigan City. However, only 10 of those inmates are currently facing a capital punishment sentence.

The 7th Circuit Court of Appeals ordered a new trial last September for Wayne Kubsch, who was sentenced to death after he was convicted in the 1998 murders of his wife, Beth Kubsch; Rick Milewski; and Aaron Milewski, Rick Milweski and Beth Kubsch’s son, in Mishawaka. The U.S. Supreme Court declined to hear an appeal.

DOC spokesman Isaac Randolph said Kubsch will remain on death row pending further appeals, as will Michael Overstreet, who was ruled not competent to be executed. Overstreet received the death sentence in 2000 for the 1997 abduction, rape and murder of Kelly Eckart, a Franklin College student.

Randolph said the court ruled that Overstreet was not “currently competent,” a condition that could change.

In addition to the 12 men on death row at the Indiana State Prison in Michigan City, one woman housed in Ohio has been sentenced to death. No executions are currently scheduled in Indiana, and the Ward ruling leaves the state without a statutory means of carrying out the death penalty.

The state argues in its petition brief that the DOC has never been held to a public-review standard, even though it has carried out 20 executions under the current death penalty statutes. The state argues I.C. 35-38-6-1(d) says lawmakers wrote that the DOC “may” adopt rules necessary to implement lethal injection. “The legislature’s choice of the permissive language was no accident, and is supported by historical experience and sound public policy,” the petition says.

The COA ruled that the General Assembly specifically exempted certain state agencies from the requirements of rulemaking under ARPA, but it did not specifically exempt the Department of Correction.

A rulemaking requirement would place Indiana closer to California, which the state argues has gone for a decade without enacting a method of execution.

“During that time, the proposed rules have been [held] up in rulemaking or judicial challenges by reluctant government officials, opponents of capital punishment, and death row offenders,” the state says in its transfer petition. “… Indiana’s General Assembly has never indicated its preference for such dysfunction in our state, and this Court should avoid unnecessarily requiring such an active judicial role for management of the internal affairs of the (DOC) and the Indiana State Prison.”

The state notes in petitioning for transfer that along with California, Kentucky is the only death penalty state whose courts have found a rulemaking requirement for their methods of execution. Other states that have ruled on the question — Arkansas, Florida, Georgia, Missouri, North Carolina, Tennessee, Texas, Virginia, and Washington — have found execution protocols are exempt from administrative rulemaking.•


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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: Here are the two research papers: 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.