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The accused killer of Terre Haute police officer Greg Ferency no longer faces a death sentence. In February, the U.S. District Court for the Southern District of Indiana ruled that the federal government may not pursue the death penalty against Shane Meehan, the man accused of murdering Ferency outside a federal office building in Terre Haute on July 7, 2021. More injurious to justice is that if Indiana prosecutors were to determine that such an outcome was inconsistent with Hoosier justice, they are without remedy. Indiana has voluntarily surrendered its sovereignty over criminal justice to the federal government.
You just have to drive to the nearest major city to see that justice is not the natural state of society. Justice must be fought for and defended. Prosecutors along with other law enforcement professionals serve on the front lines of our criminal justice system. Prosecutors, both state and federal, are ethically bound to serve as “ministers of justice.” See Ind. R. Pro. Conduct 3.8, Cmt. 1; S.D. Ind. Local Rules for Disciplinary Enforcement, Rule 1. As the United States Supreme Court explained in Berger v. United States, 295 U.S. 78, 88 (1935), the role of the prosecutor is twofold: “that guilt shall not escape or innocence suffer.” Prosecutors are expected to “strike hard blows” but never “foul ones,” and their duty to fight for justice at all costs is ongoing and extends beyond the posture of any single case.
Indiana prosecutors also swear to uphold both the U.S. and Indiana constitutions and to refrain from maintaining actions, or inaction, that appear unjust (see Admission and Discipline Rule 22). This oath underscores that prosecutors must use “every legitimate means” in their arsenal to remedy injustice whenever it may appear. However, in the murder of officer Ferency, state prosecutors would be prohibited from doing so if they determined that justice was not being served by the recent district court ruling.
A federal response to clemency
If the ruling in officer Ferency’s case is insufficient to stoke the flames of Indiana criminal justice reform, then how about the injustice illustrated in January of last year when President Biden commuted or pardoned over 4,000 federal offenders, including 37 inmates who had been sentenced to death days before his term was to expire. One of those commutations was the Louisiana case of Thomas Sanders who is a convicted child killer but was awarded a federal death sentence commutation by President Biden. Last April, Louisiana prosecutors, relying on the doctrine of dual sovereignty, secured a state indictment against Sanders for the same murders with the intent on securing a state death sentence. In doing so, the State of Louisiana asserted its sovereign prerogative to correct what its citizens, through their representatives, viewed as a miscarriage of justice.
The dormant principle of dual sovereignty
Louisiana’s actions highlight a principle long recognized by the Supreme Court: Under the doctrine of dual sovereignty, successive prosecutions by separate sovereigns do not violate the Double Jeopardy Clause. As the court reaffirmed in Gamble v. United States, 139 S. Ct. 1960, 1965 (2019), “where there are two sovereigns, there are two laws, and two ‘offenses.’” Both the federal government and the states may define and punish offenses under their respective laws.
The Indiana Constitution mirrors the federal Double Jeopardy Clause, see Ind. Const. Art. I, §14, and Indiana courts have consistently recognized that it provides no greater protection than the Fifth Amendment. See State v. Johnson, 183 N.E.3d 1118, 1123 (Ind. Ct. App. 2022). Therefore, Indiana could, constitutionally, like Louisiana, prosecute conduct that has already been federally prosecuted and in so doing assert its sovereign authority to define justice for crimes committed in its state.
Indiana’s statutory surrender
Indiana cannot. Indiana Code § 35-41-4-5, enacted in the late 1970s, bars successive state prosecutions where the same conduct has already been prosecuted in another jurisdiction. This statutory bar constitutes a self-imposed restriction on the state’s sovereignty. It effectively bars Indiana prosecutors from correcting federal leniency, when sentences imposed under federal law are far less severe (or have been commuted) than what Indiana law and citizens would require. Hoosiers, through state prosecutors and state laws, should be free to define what constitutes justice for specific criminal behavior occurring within our state.
Presumably, the purpose of the statute’s original intent was fairness, a misguided altruistic notion to avoid “stacking” punishments in which case defendants would get twice the sentence as one sovereign acting alone. But in reality, it has produced the opposite effect: Federal prosecutions often result in lighter sentences, meaning offenders serve less time than they would if Indiana was able to prosecute alone (or even first). Indiana’s criminal justice policy preferences and sentencing priorities are thus currently subordinated to those of Washington, D.C. This legislatively inflicted wound to justice effectively surrenders Indiana’s sovereign authority to define and seek justice on its own terms.
It is important to emphasize that this reality is not a result of the efforts of our federal law enforcement and prosecutorial partners, who work alongside us every day in the shared fight for justice. Often, state and federal agencies work hand in glove on cases in our commitment to public safety as demonstrated by their willingness to pursue the most serious penalties available under federal law when appropriate, including their efforts to seek the death penalty in the Meehan case. The issue instead lies with the structure of federal criminal statutes enacted by Congress, which often reflect national sentencing priorities that do not always align with the expectations of Hoosiers regarding accountability and appropriate punishments for violent crime.
A statutory, not constitutional, problem
Again, this is not a constitutional problem. Both the U.S. and Indiana constitutions allow successive prosecutions by states and the federal government, each dual sovereigns. The restriction exists only because Indiana’s legislature imposed it by statute. Revising or repealing Indiana Code § 35-41-4-5 would restore prosecutors’ ability to pursue justice for crimes committed within our borders, consistent with Hoosier values, constitutional principles and the expectations of Indiana voters.
Now is the time
Gov. Mike Braun, in his inaugural address last year, declared his intent to “transfer assumed power from the federal government back to the states.” Nowhere is that transfer more critical and emergent than in criminal justice.
By amending Indiana’s statute, the General Assembly can reassert Indiana’s sovereignty, protect public safety, and return accountability to local prosecutors. In short, Indiana must reclaim its rightful authority. Hoosiers deserve a criminal justice system defined by Indiana values not one subordinated to Washington, D.C., priorities.•
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Delp is the prosecutor for Hendricks County.
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