State court suit aims to ban Indiana death penalty

A lawsuit naming Gov. Eric Holcomb filed on behalf of a prisoner on Indiana’s death row urges a state court to issue an injunction halting capital punishment and rule that the state’s ultimate criminal penalty violates the Indiana Constitution.

The suit was filed Tuesday in LaPorte Superior Court, which has jurisdiction over the Indiana State Prison in Michigan City. The prison houses Indiana death row and the state’s lethal injection chamber.

Fort Wayne attorney David Frank filed the suit on behalf of inmate Roy Lee Ward, who is on death row at Michigan City after he was convicted in 2001 of the rape and mutilation killing of 15-year-old Stacy Payne in Spencer County.

Spokespeople for Holcomb and Attorney General Curtis Hill, whose office would represent the Department of Correction and presumably the governor’s office in this litigation, did not immediately respond Friday to email messages seeking comment.

The Indiana Supreme Court in June 2012 affirmed Ward’s sentence, but his execution was stayed by a federal judge later that same year. While Ward faces no execution date after almost two decades on death row, the complaint filed Tuesday contends that no other death row inmates do, either, and that the death penalty is arbitrary and capricious. The suit argues Indiana should follow the lead of other states including Illinois, Iowa, Michigan and Wisconsin that have outlawed the death penalty.

“In 2018, the Supreme Court of the State of Washington unanimously declared the use of capital punishment to be unconstitutional under its state constitution,” the complaint says. Washington, where eight people are on death row, had not carried out an execution since 2010.

Similarly, Indiana has not carried out an execution since 2009, the complaint says, and the state has nine death row inmates — seven of whom, including Ward, are under an active sentence of death.

Ward’s suit attacks the death penalty on four Indiana Constitution grounds, contending it violates:

• The equal protection clause of Article 1, Section 1;

• Article 1, Section 15, which holds that no one “confined in jail, shall be treated with unnecessary rigor”;

• Article 1, Section 16, barring cruel and unusual punishment, and;

• Article 1, Section 18, declaring the state’s penal code “shall be founded on the principles or reformation, and not of vindictive justice.”

Frank contends the state’s only rationale for the death penalty is “vindictiveness and vengeance,” in violation of Section 18.

“Hopefully the state will take notice that the use and implementation of capital punishment in Indiana has become arbitrary and capricious,” he said Friday in a telephone interview. “There has been no execution in 10 years, and the number of men on death row is now in single digits.”

Frank said the suit is not about relitigating the guilt of the inmates. If the death sentence were ruled unconstitutional, death sentences would be commuted to life in prison without parole. Senate Bill 301, introduced in the Indiana General Assembly by Sen. Lonnie Randolph, D-East Chicago, would do just that, along with abolishing the death penalty.

“Certainly, we acknowledge all of them were convicted of very serious offenses, but I think the average and reasonable person could ask the state, ‘Why them?’” Frank said of the inmates on death row. “… We don’t know what the state will use to execute people, and we don’t know who they will execute. … When the state offers no legitimate explanation for its use, it’s time to get rid of it.”

The suit also comes as the Department of Correction is on the defensive in court cases seeking information about drugs it could use to carry out a lethal injection.

DOC has not publicly identified a lethal injection protocol it would use in the event an execution were ordered. The Indiana General Assembly in 2017 slipped last-minute language into the budget bill known as “the secrecy statute.” Among other things, that language forbid anyone in the supply chain of lethal injection drugs from disclosing what those drugs are.

That language undermined a judge’s order requiring DOC to make public certain information about drugs and substances it had on-hand that could be used in a lethal injection. Marion Circuit Judge Sheryl Lynch in November struck down the secrecy statute on First Amendment and multiple other constitutional grounds.

Separately, the Indiana Supreme Court in February 2018 ruled DOC did not need to go through public rulemaking in developing a lethal injection protocol in another case Frank brought on Ward’s behalf. The Indiana Court of Appeals had previously ruled DOC was not exempt from public rulemaking processes under the Administrative Rules and Procedure Act.

The case challenging the constitutionality of the Indiana death penalty before LaPorte Superior Court 2 Judge Richard Stalbrink is Roy Ward v. Gov. Eric Holcomb, et al., 46D02-1901-PL-69.