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State appeals ruling that suspended death penalty

July 12, 2017

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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