What’s next for Indiana’s death penalty?

Some in Indiana’s legal community say the death penalty system is broken and have dubbed it the state’s “other lottery” because it is so randomly imposed.

Authoritative voices on the topic say capital punishment is not effective in its current form, and it’s questionable whether the penalty is worth the cost. Change is needed, but no one has stepped up to implement that reform.

That means not much has changed in Indiana during the past 10 years. The system is stronger in some respects, such as requirements for legal representation and overall trends in wrongful convictions. But Indiana continues to struggle with the financial and economic tolls that imposition of the death penalty imposes.

The state has continued on a gradual decline in death sentences without anyone having to start the process toward controversial public policy revisions. But the conversation continues, and that could ultimately lead to change.

greg zoeller Zoeller

Indiana Attorney General Greg Zoeller has been trying to motivate discussion, starting with a criminal justice summit at Notre Dame Law School last November. That summit brought 75 prosecuting and defense attorneys, law professors, students, judges, and legislators together to explore the economic and financial aspects of capital punishment in the context of larger legal and philosophical questions.

“Capital punishment is one of those issues that no one ever wants to discuss and often goes unspoken, but it’s a tough issue that needs to be addressed,” Zoeller said. “We haven’t had a serious conversation in a number of years, and it’s time when you look at what’s happening nationwide on this. … Most agree from the summit that the system is broken, and there’s at least a general consensus that something needs to change.”

Understanding the problem

Proponents push for the death penalty to protect society from the “worst of the worst,” and they say life without parole isn’t an adequate alternative because it isn’t sufficient “justice” when compared to the crime. They add that some risk exists for that person to endanger society even while incarcerated.

Meanwhile, opponents and judges throughout the country note that the decision-making process often seems based more on emotions and retribution than what’s good for the legal system and public that must bear the cost. Data shows that it takes an average of 17 years to complete the appeal process on a death penalty case, and the likelihood of an execution occurring is about 5 percent. The price tag to complete a death penalty case is an average 38 percent more than a lifetime incarceration case.

As a result, death penalty filings have declined during the past 10 years as prosecutors are pursuing death sentences less often. Many states are examining whether they should have execution as an option, and some such as Illinois, Montana, and New Mexico have abolished the penalty in recent years.

“This just doesn’t make a whole lot of sense anymore, from a penal standpoint,” said Richard Dieter, executive director of the national Death Penalty Information Center that studies capital punishment. “If there was just one voice in the wilderness, it wouldn’t have as much sway. But because so many respectable legal community voices say it’s broken and something that often isn’t fixable, this reflects a bigger picture that needs attention. Discussion is good to some degree, but decisions have to be made.”

Where we stand

Indiana has not shown movement toward a change of policy, even though studies have occurred through the years. A comprehensive analysis in 2002 didn’t result in reform, nor did a review in 2007. In 2010 and 2011 lawmakers studied sentencing and its costs and implications, but no legislative action on the topic was taken.

Indianapolis attorney and law professor Joel Schumm chaired the American Bar Association task force in 2007 that recommended a moratorium on the death penalty in Indiana.

“There’s randomness to it, and that is still true,” he said, noting that some counties don’t pursue it for financial or other reasons while other prosecutors might have a different calculus and come to a different result. “It’s a difficult thing to explain to people because it’s so nuanced and that’s what makes this a complex issue. But beyond all of the justice and morality issues that are associated with capital punishment, you do have factors that can be measured and that’s what we have started at least recognizing. We still don’t seem ready to answer the question: Does it make sense from a public policy standpoint when you have this randomness?”

The 318-page ABA panel report said the state’s system is unfair and is known as Indiana’s “other lottery” because of its randomness. The group spent almost two years reviewing the state’s system, one of many multi-state examinations done by similar panels since the ABA began that process in 2001. The group determined Indiana has inadequate qualification standards for defense counsel, lacks adequate authority to review or assess the penalty’s use, has significant juror confusion on death penalty cases, and inappropriately uses the punishment on people with severe mental disability.

Randall Shepard Shepard

Chief Justice Randall T. Shepard praises the state’s evolution on capital punishment during the past two decades, pointing to both the creation of LWOP and Indiana Criminal Rule 24.

“Indiana was the second state in the country to create minimum standards for defense lawyers on these cases, and that made a dramatic difference in reliability and determinations that were necessary,” he said. “This rule puts Indiana in a better place than before.”

DNA use has become more common during the past decade and new procedures have been implemented concerning its use. Schumm says one of the most significant policy modifications came in 2009, but it wasn’t directed at capital punishment. In a 3-2 decision, the Indiana Supreme Court changed the state’s evidentiary rules and required law enforcement agencies to record their interrogations – a measure aimed at preventing wrongful convictions in general and something that legal experts agreed strengthened Indiana’s path to reformation on these issues.

Joel Schumm mug Schumm

That was a step forward, but unlike other states that have experienced higher trends in wrongful convictions, that isn’t something Indiana is overly concerned about, according to Schumm. The monetary aspects, representation, and decision-making are what seem to be the most pressing issues here, he said.

Members of the legal community and lawmakers who attended the Notre Dame summit aren’t convinced change is coming soon. Even Zoeller admits he doesn’t think Indiana has legislative interest in making death penalty law changes now, but he wants to continue the conversation.

“Even without a token moratorium, the greater self-imposed restraints are doing the same job,” Zoeller said. “We’ve improved the system remarkably since 1977 but have had a much more limited use recently. Where we go now is an open question: do we look at it from the economic reality of counties not being able to afford it, or the moral questions that are haunting us in pursuing that punishment?”

What’s next?

Two lawyer-legislators interested in this topic attended the summit – Sen. John Broden, D-South Bend, and Sen. Joe Zakas, R-Granger – and say that legislative support doesn’t exist for a death penalty moratorium or revocation, but lawmakers would likely be willing to look at how to help counties handle the costs.

zakas-joe-mug.jpg Zakas

“I’m certainly open to exploring this because the ability of a society to explore itself is a pretty important topic for me,” Zakas said. “I think that current laws are actually pretty well thought-out and have some good limitations. Some topics are difficult to define, and this died down in recent years but maybe it’s coming back.”

Zakas said he wouldn’t support abolishing the death penalty, and he is doubtful that other legislators would support that change.

“The ability of a society to defend itself is one of those basic principles that legislators are quite fond of,” he said.

At the criminal justice summit, participants made other suggestions for improving the state’s system. Rutgers University economics Professor Anne Morrison Piehl presented an academic study on the fiscal considerations of Indiana’s death penalty and suggested the state could develop stricter limitations on reimbursement for trial expenses, perhaps by limiting the number or type of expert witnesses, capping their fees, or developing more aggressive audit procedures after the fact.

Some say the expenses are justified to ensure an adequate defense at trial and on appeal, while others say reform is needed. But most agree cost is a key concern, according to Stan Levco, a former Posey County judge and Vanderburgh County prosecutor, and Clark County Prosecutor Steve Stewart, both considered experts on the death penalty.

“I think the present death penalty system that we have in Indiana is nearly broken,’ said Levco. “It’s almost at the point where it’s no longer viable, and unless we decrease the costs it’s not worth it.”

Revisions to CR 24 could be a way to tackle those costs, but changes could take years. The Indiana Public Defender Commission started establishing the rule in 1989 and used existing models from the ABA to draft a proposal for the Supreme Court’s consideration that following year, but it took another two years for the public comment and adoption process to be finalized.

The Indiana Prosecuting Attorneys Council has been studying potential reviews for CR 24 for more than a year, but the chief justice said nothing has been submitted to the Supreme Court.

While the state’s not perfect, Chief Justice Shepard said the state does a good job handling these incredibly complex and difficult cases compared to others across the country. That sentiment is echoed by other Hoosier jurists and attorneys who are considered state and national experts on death penalty cases.

“Likely, it’s the case that Indiana is well above the norm in assuring we get the right guy and a fair trial occurs with adequate counsel,” the chief justice said, noting that state public defender offices do not exist in many jurisdictions. “We see Indiana as a place that’s tough on crime and wants to make sure law enforcement and the legal community get it right.”•

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