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Death penalty’s decline

Society increasingly aware of shortcomings


Article I, Section 18 of the state constitution declares: “The penal code shall be founded on the principles of reformation, and not of vindictive justice.”

Is the death penalty reformative or vindictive? It’s a question that has been debated since the state reinstated capital punishment in 1977. What’s more vexing is state law concerning the death penalty in cases involving defendants with intellectual disabilities, as well as severe mental disabilities. A recent Supreme Court ruling, according to legal scholar Sherry F. Colb, writing for, not only narrowed states’ discretion in defining who is intellectually disabled – the term the court used – but the decision may signal the “death penalty may be on its way out … save for a change in the Court’s personnel.”

If that’s so, such a decision may be a smart move for the country.

Prudent prosecutors?

Indiana prosecutors appear to be conservative in filing death penalty cases, with the high cost of state capital punishment cases – $500,000 versus about $45,000 to file for life in prison without parole – cited as a possible reason for the decline. In 2000, 11 capital cases were filed. Last year, just one was filed, although two have been filed so far this year. Of the 51 capital cases completed since 2000, 10 cases resulted in a jury conferring the death penalty during the sentencing phase.

Since 1977, the state has executed 20 people, four of whom waived their right to appeal. Texas has executed more people in the last year-and-a-half than Indiana has since it reinstated the death penalty. Missouri, roughly the same population size and racial makeup as Indiana, has executed 32 people since 2000, a span that includes a three-and-a-half year suspension of executions.

Since 1977, 56 people are no longer on death row as a result of “reversals by the appellate courts, commutation by the governor, or dismissal of the death penalty by agreement of the State of Indiana,” according to the Indiana Public Defenders Council. Most recently, Gov. Mitch Daniels, basing his decision on dissenting opinions offered by two Indiana Supreme Court justices, commuted the sentence of Arthur Paul Baird, a man with no prior criminal record who killed his parents and pregnant wife in 1985. Baird was diagnosed with severe mental illness, but life in prison without parole was not an option at the time of his sentencing.

So, Indiana prosecutors appear to be prudent when it comes to death penalty cases, which is a good thing. This does not mean Hoosiers should wipe their hands, say experts and public defenders who declare that state law concerning the intellectually disabled and, even more so, severely mentally disabled is less than substantive.

Hall v. Florida: The borderline

Last month, in a 5-4 decision, the U.S. Supreme Court ruled that Florida violated the Constitution by setting an IQ level of 70 as the cutoff level in determining whether a person was deemed “mentally retarded.”

That Freddie Lee Hall, now 68, should be in prison for the murder he committed in 1978 is not debated. His intelligence, however, is a different matter, as the court has already ruled in 2002’s Atkins v. Virginia the execution of people with intellectual disabilities is a violation of the Eighth Amendment ban on cruel and unusual punishment.

Hall’s IQ ranges between 60 and 80, a span that, when taking into account a margin of error, informed the court’s decision that using a fixed number as the sole guide does not accurately reflect a person’s intellectual capacity. Indeed, someone could score higher than the cutoff but have below-average adaptive functioning, a set of competencies that includes social judgment and empathy.

For the majority, the fundamental issue is decency. Hall and his attorneys ought to have another chance to show why his disability should mitigate the state’s use of the death penalty in his case.

“Florida’s law contravenes our nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world,” Justice Anthony Kennedy wrote in the majority opinion.

The minority strenuously disagreed. Justice Samuel Alito accused Kennedy and the other four majority members of adopting a “uniform national rule that is both conceptually unsound and likely to result in confusion.”

Joel Schumm, a law professor at Indiana University’s McKinney School of Law, said Alito’s opinion is not a surprise.

“I think the dissent’s view is consistent with the conservative justices’ general focus on the language of the Constitution and deference to the ability of states to decide issues like the death penalty,” Schumm wrote in an email. “The more conservative justices generally avoid reliance on public opinion, the views of other nations, or interested groups of experts.”

Back to Indiana

Indiana lays out a set of aggravating circumstances by which a prosecuting attorney can seek the death sentence or life in prison without parole, factors that include the age of the victim, multiple murders, or killing a law enforcement officer. State law also has mitigating circumstances that can be argued by the defense, including mental illness.

State law prohibits prosecutors from seeking the death penalty if a pretrial hearing determines the defendant is an “individual with mental retardation” – a law dating to 1994, thus predating Atkins. If a defendant is deemed “mentally retarded,” the defendant receives a jury trial and the sentencing is for length of time rather than life in prison without parole.

Even if it is determined that the person is competent to stand trial, mitigating evidence can be introduced to the jury in the sentencing phase.

The state does not exclude people with severe mental illness, although a 2007 state study committee, the Bowser Commission, and an American Bar Association panel chaired by Schumm, recommended the state offer the same protection for mentally ill defendants.

In 2008, the late Sen. Anita Bowser introduced a bill to provide procedures to determine whether a defendant charged with murder is an individual with a severe mental illness. It also would have prohibited the imposition of the death penalty if a defendant were found to be someone with a severe mental illness. It didn’t move.

The next year, Sen. Karen Tallian, D-Portage, reintroduced the bill. Same result. Tallian said the opposition came from prosecutors who lobbied to keep the bill from moving out of the judicial committee.

Indiana doesn’t have a bright-line IQ rule, but Steven Schutte, a state assistant public defender, says the Hall ruling should remind Hoosiers that prosecuting people with borderline intellectual disabilities and severe mental illness such as schizophrenia relies on the testimony of experts, weighed by the subjective analysis of a jury. The jury may be made up of peers of the defendant, but how can they be considered peers with a clinician? Consider this is a country of people who are more skeptical of climate change data than of the existence of ghosts.

As Alito wrote in his opinion, there is no general consensus on where the borderline exists between competence and intellectual disability. In the case of Debra Denise Brown, the literal border between Indiana and Ohio proves the point.

Brown, along with Alton Coleman, was convicted in Ohio and Indiana of raping, robbing and killing victims in a six-state crime spree in 1984. Coleman was executed in an Ohio prison in 2002. Brown, however, had her sentence in Ohio commuted to life without parole as a result of questions about her limited intellectual functioning, as well as her dependency on Coleman. Brown had no criminal record prior to her relationship with Coleman. Brown still faces the death penalty in Indiana, although the state has made no move to extradite her.

Of the 13 people on Indiana’s death row, a group made up of the indigent, five offered low IQ and limited intelligence as a mitigating factor in their death penalty cases. This list does not include Joe Corcoran, who was sentenced in 1999 for the murder of his brother, James, and three other men in Fort Wayne.

Schutte said while Corcoran was diagnosed as a paranoid schizophrenic, his intelligence is normal.

‘Imprecise continuum’

Tom Pruitt was sentenced in 2003 for the murder of Morgan County Deputy Sheriff Daniel Starnes.

In his opinion denying Pruitt’s appeal in 2012, federal district court Judge Robert L. Miller wrote that Indiana’s courts acted reasonably in finding Pruitt, who had low IQ scores but worked and could drive, not “mentally retarded.” Yet, Miller hit upon the crux of the problem when he commented that the courts “faced the challenge of deciding where Mr. Pruitt fits on that imprecise continuum.”

It’s that imprecision that makes such cases hard to defend, said Michelle Kraus, a noted Fort Wayne defense attorney and chair of the Indiana Public Defender Council.

According to Kraus, the wait time for a qualified psychiatrist to make the determination of a defendant’s mental competency can take months. Allen County, for example, has one certified forensic psychiatrist. In the case of determining intellectual disability, the team needs to establish low IQ and sub-average adaptive functioning, defined as “how well an individual deals with everyday life demands compared to other people with similar educational and social backgrounds.” The law requires proof of “mental retardation” prior to the age of 22, so public defenders have to acquire information from decades past to prove their contention.

In the case of Simon Rios, who raped and murdered a 10-year-old neighbor before killing his family, Kraus had to overcome a language barrier and Rios’ life in Mexico to show his intellectual disability. A forensic psychologist testified that Rios had an IQ of 75 and his adaptive behaviors showed he was competent to stand trial.

A deal was reached for Rios to plead guilty to receive life without parole; he committed suicide in prison in 2008.

For cases involving severe mental disability, the time between arrest and evaluation could find the psychiatrist evaluating a person who may already be medicated and appear competent to stand trial.

There’s no denying that this works in favor of the prosecution. For Allen County assistant prosecuting attorney Steven Godfrey, the system works primarily because it allows the jury to evaluate the work of experts against prosecution witnesses who offer accounts of the defendant’s thoughts and actions. In the case of severe mental disability, Godfrey asks a fair and common question: How do we know what the defendant was thinking and experiencing at the moment of a homicide?

The jury is the hallmark of our justice system, but it is far from infallible in capital cases for defendants with severe mental illness, according to the ABA study on Indiana’s death penalty.

“Without proper instructions, most jurors are likely to view mental illness incorrectly as an aggravating factor,” the authors contend, adding that “research indicates that jurors routinely consider the three statutory factors listed above as aggravating, rather than mitigating, factors in cases involving mental illness.” (Emphasis not added.)

In addition, the ABA study contended, “the medication of some mentally ill defendants in connection with their trials often leads them to appear to be lacking in emotion, including remorse. This, too, can lead them to receive capital punishment.”

Progressive Indiana

Our justice system is adversarial, and prosecutors shouldn’t be faulted for being skeptical of any changes to current law. There is a fear of their hands being tied, but the U.S. Supreme Court has continued to narrow who is eligible for the death penalty.

Our legislators, however, should be leaders on this issue rather than followers. At the very least, they should look at how the death penalty applies to defendants with intellectual disabilities and severe mental disabilities. A more radical idea would be to outlaw the death penalty, which is proving to be morally apprehensive and fiscally irresponsible.

There’s nothing wrong with being progressive and reformative, even in a state with a deep conservative heritage.

Fred McKissack, a Fort Wayne resident, is an author and journalist. He wrote this for The Journal Gazette.