The evolution of capital punishment

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Cost of Justice

The Indiana Lawyer takes a historical look at how the death penalty system has evolved during the past 40 years and how Indiana has amended its practices and procedures through the decades.

The Supreme Court of the United States struck down the death penalty with its ruling in Furman v. Georgia, 408 U.S. 238 (1972), holding that all state death penalty sentencing statutes were unconstitutional under the Eighth Amendment’s cruel and unusual punishment clause because they allowed for arbitrary and capricious imposition.

The Indiana General Assembly enacted a new death penalty sentencing statute, but a 1976 SCOTUS decision in Woodson v. North Carolina struck down a similar statute. The Indiana Supreme Court later struck down this state’s revised death penalty statute.

Now-retired Justice John Paul Stevens joined with a U.S. Supreme Court majority in Gregg v. Georgia, 428 U.S. 153 (1976), which overruled Furman v. Georgia and helped pave the way for states to re-enact capital punishment.

Indiana reintroduced capital punishment, and that sentencing statute remains in effect today.

Indiana saw its first execution following the death penalty’s re-enactment. The defendant was Steven Judy, who’d been sentenced a year earlier but waived non-mandatory appeals.

Indiana increased the minimum age of a person eligible for execution from 10 to 16.

The state General Assembly created the Indiana Public Defender Commission to set standards for capital attorneys, and it authorized the commission to reimburse counties 50 percent of defense costs in capital cases.

The Indiana Supreme Court established Criminal Rule 24 to set mandatory standards for appointing and compensating trial and appellate counsel in death penalty cases.

The Indiana General Assembly created Life Without Parole as a sentencing option in capital murder cases, and a year later prosecutors were given the authority to ask for LWOP rather than requesting a death sentence.

The Indiana General Assembly banned the execution of the mentally retarded, a legislative decision that preceded the 2002 SCOTUS ruling in Atkins v. Virginia that held the same.

Indiana changed the method of execution from electrocution to lethal injection.

Indiana increased the minimum age of a person eligible for execution from 16 to 18, a decision that preceded the 2005 SCOTUS ruling that held executing anyone under 18 was cruel and unusual.

• An American Bar Association panel of Indiana attorneys and legal scholars issued a report calling for a moratorium on the state’s death penalty on the grounds that the state lacks the ability for its appellate courts to review whether different crimes merit that penalty. Legislation followed in subsequent years, but did not gain approval.
• In honor of the late Sen. Anita Bowser (D-Michigan City), the Indiana Senate created an interim study commission to examine the issue of executing the mentally ill. That commission voted to recommend a bill that would exempt defendants identified to have serious mental illness, but no definition of that term was agreed on and a bill introduced in 2008 was not enacted. No further action has been taken.

In Baze v. Rees, 553 U.S. 35 (2008), Justice Stevens voted with the majority in upholding Kentucky’s method of lethal injection because he felt bound by stare decisis. However, he issued a concurrence in that case that put him with three other former justices in concluding that state-sanctioned killing (capital punishment) is unconstitutional under the Eighth Amendment.

Indiana Attorney General Greg Zoeller held a criminal justice summit at Notre Dame Law School to discuss the economic impact of capital punishment. A final report is being submitted to Indiana legislators, but no legislation was introduced in 2011 as a result of that conference.

In March, Illinois became the 16th state to ban executions, a move that came a decade after Illinois imposed a moratorium on the death penalty due to concern about wrongful convictions. This follows what other states have done on grounds of wrongful conviction and exoneration trends, fiscal considerations, or public policy changes at the state level.


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  1. Freedom From Religion Foundation: If you really want to be free from religion, don't go to the Christmas Play or the Christmas Pageant or the Christmas Parade. Anything with "Christ" or Saint...fill in the blank...would be off limits to you. Then leave the rest of us ALONE!

  2. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  3. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  4. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  5. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon