Indiana Criminal Law Study Commission, 2000-2001 and 2001 2002 William Alexa chair Karen Freeman-Wilson Member, Indiana Senate Attorney General (former), Attorney, Douglas, Alexa, Koeppen & Hurley State of Indiana Oatess Archey Richard Good Sheriff, Grant County Judge, Marion County Superior Court Dave Alien Grant Hawkins Attorney, Hagemier, Alien & Smith Judge, Marion County Superior Court John G. Baker Stephen J. Johnson Judge, Indiana Court of Appeals Executive Director, Indiana Prosecuting Attorneys Council Anita Bowser Joseph Koenig Member, Indiana Senate Prosecutor. Bartholomew County Professor Emerita, Purdue University Richard Bray Larry Landis Member, Indiana Senate Executive Director, Attorney Indiana Public Defender Council Susan K. Carpenter David Long Public Defender of Indiana Member, Indiana Senate; Attorney Melvin Carraway Robert Meeks Superintendent. Member, Indiana Senate Indiana State Police Retired, Indiana State Police Stephen Carter Evelyn Ridley-Turner Attorney General (current), Commissioner (current), State of Indiana Indiana Department of Correction Edward Cohn Jane Seigel Commissioner (former), Executive Director, Indiana Department of Correction Indiana Judicial Center Leslie Duvall Brent Steele Former member, Indiana Senate Member, Indiana House of Representatives Of counsel, Lewis & Kappes Attorney, Steele & Steele Michael Dvorak Richard P. Stein Member, Indiana House of Representatives Former United States Attorney Partner, Dvorak, Fellrath. Dvorak Of counsel, Stewart & Irwin Ralph Foley Steve Stewart Member, Indiana House of Representatives Prosecutor, dark County Attorney, Foley, Foley & Peden Cleon Foust Dale Sturtz Dean Emeritus, Member, Indiana House of Representatives Indiana University School of Law Indianapolis Former LaGrange County Sheriff Commission Staff George Angelone Deputy Director, Office of Bill Drafting and Research Legislative Sen/ices Agency Mark Goodpaster Sen/or Fiscal Analyst, Office of Fiscal and Mgmnt Analysis Legislative Services Agency Andrew Hedges Staff Attorney, Office of Bill Drafting and Research Legislative Services Agency Kathryn Janeway General Counsel Indiana Criminal Justice Institute Brent Myers Senior Research Associate, Research Division Indiana Criminal Justice Institute Mary Ziemba-Davis Director, Research Division Indiana Criminal Justice Institute Table of Contents Executive Summary ii Introduction 1 Whether safeguards are in place to ensure that an innocent person is not executed. 5 Whether our special rules requiring definitively trained capital defense counsel are working to ensure that a capital defendant’s legal representation is properly qualified. 36 Whether the review procedures in place in Indiana and in our federal Seventh Circuit appellate courts result in a full and fair review of capital cases. 83 IV. How the cost of a death penalty case compares to that of a case where the charge and conviction is life without parole. 1 1 9 A-FF V. Whether Indiana imposes capital sentencing in a race neutral manner. 1 23 A-Q VI Whether Indiana should consider any changes in its capital sentencing statute. 1 24 Appendix: Summary of Recommendations from Recent Death Penalty Studies provided by Paula Sites, Public Defender Council. HOW TO CITE THIS REPORT When referencing information contained in pages 1 -1 22 or pages 1 24 to the end of the document: Janeway, K. (Reporter). (2002). The Application of Indiana’s Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission. (Available from the Indiana Criminal Justice Institute, One North Capitol, Suite 000, Indianapolis, IN 46204-2038.) When referencing information contained in pages 1 22A-1 22FF: Goodpaster, M. (2002). Cost Comparison between a Death Penalty Case and a Case Where the Charge and Conviction is Life without Parole. In The Application of Indiana’s Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission (pp. 22A-1 22FF). (Available from the Indiana Criminal Justice Institute, One North Capitol, Suite 000, Indianapolis, IN 46204-2038.) When referencing information contained in pages 1 23A-1 23Q: Ziemba-Davis, M., Myers, B.L, Lisby, K.J. (2002). Sentencing Outcomes for Murder in Indiana: Initial Findings. In The Application of Indiana’s Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission (pp. 23A-1 23Q). (Available from the Indiana Criminal Justice Institute, One North Capitol. Suite 000, Indianapolis, IN 46204-2038.) Executive Summary Pursuant to the requests of Governor Frank O’Bannon and the Legislative Council of the Indiana General Assembly, the Indiana Criminal Law Study Commission reviewed the following six issues regarding Indiana’s application of the death penalty: I. Safeguards: After reviewing whether safeguards are in place to ensure that an innocent person is not executed, the Commission found a capital case system of "super due process" comprised of multiple, integrated safeguards. Additional safeguards were discussed, with no consensus reached. The two most important safeguards are quality of the defense and a full fair review process. Defense attorneys are governed by effective rules promoting quality. The Public Defender provides seasoned capital defenders having institutional expertise and resources. The Public Defender Council provides additional advisory, educational, technical, and research support to the defense. The Public Defender Commission promotes compliance with rules governing quality of defense counsel through its reimbursement for quality defense counsel and unlimited support services including paralegals, mitigation specialists, factual investigation specialists, and other experts. An extensive multi-layered review process offers four avenues of review: direct, post- conviction, habeas corpus, and executive clemency, some of which may be utilized more than once. These safeguards and others help ensure to the best of our human ability that an innocent person is not executed. II. Quality of Counsel: One of the most important safeguards for a capital defendant is quality of defense counsel. In reviewing whether our special rules requiring definitively trained capital defense counsel are working to ensure that a capital defendant’s legal representation is properly qualified, the Commission found a five-part system that provides quality defense counsel and recommended maintaining its continual adequate funding. Enhancing defense counsel compensation was discussed, with no consensus reached. Criminal Rule 24 governs competency, training, compensation, workload, and provision of two defense attorneys and any necessary support services. Public Defender office capital counsel are experienced and bring institutional expertise and resources to the defense. The Public Defender Council provides additional advisory, educational, technical, and research support to defense attorneys. The Public Defender Commission promotes compliance with Rule 24. The Public Defense Fund provides reimbursement for capital cases complying with Rule 24. Statistics illustrate the effectiveness of Rule 24: of the 14 Indiana capital sentences reversed due to ineffective assistance of counsel. 1 3 were imposed before Rule 24 was enacted and the remaining reversal involved violations of Rule 24. III. Review: Another of the most important safeguards protecting a capital defendant is the review process. The Commission found that while inordinate sentence- to-execution time delays must be eliminated, our review procedures generally result in a full and fair review of non-waived legal issues and recommended ensuring continual, adequate funding for all relevant components of the review process. Conducting a specific comparative analysis between death sentences in addition to the currently conducted proportionality review was discussed, with no consensus reached. In examining capital case review procedures in place in Indiana and in our federal Seventh Circuit appellate courts, the Commission found that the following four review avenues apply: 1 direct appeal to the Indiana Supreme Court; 2) petition for postconviction relief ("PCR") to the trial court and subsequent appeal of the PCR decision to the Indiana Supreme Court successive petitions for PCR may be available; 3) petition for writ of habeas corpus to the federal district court and subsequent appeal of that decision to the Seventh Circuit Court of Appeals successive habeas petitions may be available; and 4) appeal to the Governor for clemency. The result of each avenue of review except for the last is itself subject to review by the United States Supreme Court. IV. Race Neutrality: Whether Indiana imposes capital sentencing in a race neutral manner was examined by studying the cases of 224 individuals who received a determinate sentence, life without parole, or the death penalty for murders committed between July 1 1 993, and August 1 0, 2001 The study revealed that since July 1 1 993, White offenders have received more severe sentences for murder than Non-White offenders. Although sentencing outcomes for murders committed since July 1 1 993, appear to be less severe for Non-White offenders than for White offenders, this observation may have more to do with the victim’s race than with the offender’s race. When the victim is White, White offenders and Non-White offenders appear to be sentenced similarly, but when the victim is Non-White, Non-White offenders appear to be sentenced less severely than White offenders. In general, however, the majority of murders in Indiana since July 1