State death penalty cases averaged 17 years

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Cost of Justice

When the moment of death finally arrives, it ends what may be described as a long legal journey to justice within the capital punishment system.

Whether all the costs justify the justice sought is an ongoing debate that probably won’t be settled soon, but it’s one that Indiana’s legal community continues to discuss as courts analyze the legal issues and policymakers debate what justice is ultimately worth.

Path to execution

creason-steve-mug Creason

The nonprofit Death Penalty Information Center reports that the average appeals process in capital cases in the United States is now 12.7 years, longer than it’s ever been, and that exonerations have cast doubt on the entire system. As a result, courts generally are proceeding more cautiously on the cases before them. The appeals process is especially lengthy because death row cases have two levels of judicial review at the state and federal levels, as well as executive clemency, and the legal standards for defense attorney representation is more stringent than non-capital cases.

youngcourt-lorinda-mug Youngcourt

Since Indiana brought back the death penalty in 1977, data shows that the 16 people who have gone through the appellate process in this state before being executed have averaged 17 years on death row – ranging from 13 to 23 years. Four others have been executed in this state after waiving their non-mandatory appeals, and it’s usually only taken a year or two before the death sentence was carried out from the time that penalty was imposed.

Fourteen people are currently on Indiana’s death row, their sentencing dates ranging from 1986 to as recently as 2008. Some of those have been stayed by courts while others remain moving through the appellate process. Six death penalty cases remain pending at the trial level in Boone, Lake, Marion, Sullivan, and Vanderburgh counties.

Overall, the timeline for a death penalty appeal depends on how quickly the courts move and whether it gets reversed and remanded, or whether a case gets bogged down by more complicated legal issues such as questions of mental health.

“Every case brings a new set of dynamics, and there’s no cookie cutter death penalty case,” said Indiana’s Chief Deputy Attorney General Gary Secrest, who was chief counsel of the AG’s Appeals Division until mid-2010. “Courts move these death penalty cases along as well as they can, but that takes time.”

One of the state’s longest-running capital cases was brought to a close in September 2010 when Madison County ended its 27-year case against Mark Allen Wisehart. In the end, Wisehart was not sentenced to death – he instead received a 75-year prison sentence for a 1982 murder. The federal courts overturned the death penalty sentence in May 2009 and remanded for a new trial after it was discovered that a juror had become aware of a polygraph test not admissible in court.

death penaltyIndiana capital case statistics show the likelihood of a death sentence actually being carried out is as low as 5 percent.

The Indiana Public Defender’s Council analyzed data at the trial and appellate levels, from the death sentences handed down between 1990 and 2010 and more broadly the appellate level reversal rates dating back to the punishment reinstatement in 1977. Overall, only 16 percent of the prosecutor requests filed actually result in a death sentence, and the appellate reversal rate in total is about 68 percent – meaning of 100 total requests only about 32 would survive all levels of appellate and clemency review.

For that reason alone, many attorneys on the defense side contend that capital punishment isn’t worth the cost when the odds are it won’t be the end result. Prosecutors are more selective in the cases they choose to pursue, in order to survive not only the trial level but the long appellate process.

“The toll these cases take on the legal system is so huge, and they have a resulting ripple effect on the rest of the court calendar and system overall,” said Rick Kammen in Indianapolis, who’s handled state and federal death penalty cases and is considered a national expert in this area. “Everything becomes exponentially more complicated, and it’s such a drain on resources and energy for everyone involved.”

Legally speaking

Prosecuting and defense attorneys say many of the same issues are often raised at the appellate level – ineffective assistance of counsel, mental health questions, due process, or appropriateness of a sentence. Many novel legal issues can also be explored during this process and unresolved questions of law can impact how quickly the courts move on these matters, they say.

The capital system has significantly changed during the past two decades, after Indiana Criminal Rule 24 took effect in 1992 and created mandatory standards for trial and appellate capital counsel. In subsequent years, the state has seen changes including the addition of life without parole as an alternative to death, the banning of executions of the mentally retarded, and juries rather than the judge being given the final decision-making power on a death sentence. The method of execution has also changed from electric chair to lethal injection, and the state continues studying the issue of mentally ill defendants being sentenced to death.

“Lots of times (defendants) will try to raise the same issues they’ve already tried unsuccessfully to argue before, but really this can be an up and down process that’s not always clear how it will go,” said appellate chief counsel Stephen Creason in the AG’s Office.

Issues raised in cases sparking novel questions often go in waves, attorneys say, and some point to mental health and DNA or evidence testing as two areas that are currently evolving in the courts.

Often, the cases boil down to a battle of the experts during the appeals process because even the physicians can’t agree on someone’s mental state.

For example, in the capital case of Eric Holmes – sentenced to die for a 1989 double murder at a Shoney’s restaurant in Indianapolis – the proceedings have been on hold for the past year after the 7th Circuit Court of Appeals found the convicted murderer incompetent to proceed with the federal habeas review.

“Mental retardation has faded from appellate review because it’s settled, but really anything having to do with mental health is still out there unresolved,” Creason said. “That concept of mental illness isn’t a direct science and there’s a lot of interpretation even among the medical experts, and so that makes it difficult for the courts to decide.”

For those integrally involved in trials that resulted in the initial death penalty decisions, these later happenings can make them question whether it’s truly worth it.

“We have to ask why it takes 10 to 20 years to get through this whole appeals process, because that’s just not fair for the citizens or defendant or family of the victims,” said Hamilton Superior Judge Steve Nation, who handled one death penalty case in his time as county prosecutor and acted as special judge on a post-conviction case in the past decade. “Looking at the effectiveness, I don’t think it has much of a deterrent effect because it takes so long in carrying it out. You forget what a person is on death row for in the first place.”

Judge Nation handled a Carmel triple-murder case in the early 1990s before taking the bench, and he was the one who made the decision to pursue a death sentence even though that case ended up with a life without parole sentence. As a judge, he presided over the post-conviction relief proceedings of Norman Timberlake, who was sentenced to die for shooting a state police trooper in 1993. Timberlake died in prison of natural causes in late 2007 while awaiting the state Supreme Court’s setting of a new execution date.

death penaltyJudge Nation said he believes the death penalty is justified because society needs to be able to return in kind what’s been done to the community. But he also thinks the process needs to be revised to make it more effective.

“We could debate this issue forever and I don’t think either side is wrong, but to me unless we speed this up, I don’t see it being effective the way it’s meant to be,” he said.

Bedford death penalty defense attorney Lorinda Youngcourt said she doesn’t think pursuing capital punishment is worth the effort often required, given the typical result.

“If it is the ‘absolute test,’ then it has failed,” she said. “It brings little, if any, closure to the victim’s family and tortures the defendant’s family. It creates untenable situations for the correctional officers who are required to care for the defendant and are then asked to kill him. It is a political hot potato which lends itself to the players pursuing capital charges and imposing death sentences in order to make a ‘name’ to win an election, or to be seen as being tough on crime. These are all much bigger issues than what it puts the lawyers and judges through.”

Inconsistency by jurisdiction in the use and outcome of the death penalty is a problem too, Kammen pointed out. In Washington, D.C., for example, someone received life imprisonment for killing 48 people, compared to a Texas teenager put on death row for holding up a liquor store and killing one person.

“Every case is different, but it’s pretty hard to justify a system that is such a random mix of how and when things happen based on a prosecutor or judge involved,” he said. “I heard someone years ago describe this system as something that’s like being struck by lightning, and I don’t think it’s changed at all.”•


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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.