Two-thirds of the world’s nations have abolished the death penalty, with more than thirty abolishing it in the last ten years. Thirty-five of the United States, including the federal government and the military, are still using the death penalty as a form of capital punishment (Facts about the Death Penalty 2009). Though many countries and fifteen US states have abolished their use of the death penalty as criminal punishment, the state of Indiana still has the death penalty written into its statutes.
In Indiana monumental U.S. Supreme Court cases, such as Furman v. Georgia and Woodson v. North Carolina have affected statute revisions. There are still issues such as racial and gender inequality in executions, the high cost of having a death penalty and the possible lack of deterrence of murder in Indiana even with the death penalty. Indiana has been ahead of the U.S. Supreme court in revising statutes to not allow the execution of mentally retarded people or children before it was ruled on by the U. S. Supreme Court in Atkins v. Virginia and Roper v. Simmons. Yet, unconstitutional aspects are still being found being revised within the statutes.
Furman v. Georgia was not only a huge turning point in case law history for the Indiana statutes, but for all death penalty laws throughout America. In 1972 William Furman, a black man in his twenties, broke into the Mickes’ home during the night. William Micke, thinking a child had awakened, went to see what was going on. While trying to run from the home, Furman accidentally shot Micke in the chest. Though claimed to be unintentional, Furman was convicted and tried for capital murder. He received the death sentence (Walker 64-65). At the U.S. Supreme Court, the judges rule that the death penalty sentencing statutes were unconstitutional under the cruel and unusual punishment clause of the eighth amendment. It was ruled that they allowed for arbitrary and/or capricious imposition of death and there was a risk that improper factors, like race, could affect the sentencing period. In Indiana, after the ruling, the seven men whom were currently on death row were all reduced to life imprisonment (INDP Facts 1).
The following year the Indiana General Assembly put forth new death penalty sentencing statute to replace the old one. Three years later there was Woodson v. North Carolina. This case was particularly interesting because North Carolina had changed its statutes from death or life imprisonment for murder to a mandatory death penalty sentence for those who commit murder. The syllabus for the US Supreme Court case showed part of the reason for their dissent of the statute: “The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender” (Woodson v North Carolina). They were not pleased that issues with the sentencing phases had not been changed or looked over, and mitigating or aggravating factors were not to be taken into consideration. Also, the proper sentencing phases cannot be completed if death is mandatory, the defendants would not get their due process. Hence, they claimed it was against the eighth and fourteenth amendments. Because of the similarity of North Carolina’s revised statutes with Indiana’s, Indiana faced having to re-revise statutes when the Indiana Supreme Court stuck down their 1973 death penalty sentencing statue based on the U.S. Supreme court decision (INDP Facts 1).
The Indiana statute for Death penalty sentencing procedure has been revised over time. It currently states that the death penalty is only available for murder (IC 35-50-2-9). “The State may seek wither a death sentence or a sentence of life imprisonment without parole for murder by alleging, on a page separate from the rest of the charging instrument, the existence of at least one of the aggravating circumstances listed…” (IC 35-50-2-9 a). This must be proven beyond a reasonable doubt. But, the only way they cannot proceed against the defendant under these rules is if the defendant is mentally retarded. If the defendant is not mentally retarded and it is found that he committed the murder with one aggravating circumstance (some are listed as: arson, burglary, child molestation, criminal deviate conduct, kidnapping, rape, robbery, carjacking, criminal gang activity, or dealing cocaine or a narcotic drug), he could be liable to receive capital punishment charges. In Indiana, if it is decided that the defendant is guilty, it proceeds to a second phase. In this phase the jury hears aggravating (making the crime more serious) and mitigating (lessening the seriousness or criminality of the crime) circumstances. They are not allowed to be sentenced to death or life without parole unless it was a unanimous decision that there was one alleged aggravating circumstance proven and that it outweighs the mitigating circumstances.
Mitigating circumstances listed in the Indiana statute include the defendant has no significant criminal history, was under an emotional or mental disturbance at the time of the crime, was an accomplice, under domination of another person and being less than eighteen years of age. If the victim was a participant that could also be seen as a mitigating factor (IC 35-50-2c). Aggravating and mitigating factors became important to the Indiana code especially after Furman v. Georgia where it was said that state statutes were in need of revisions and states must consider all mitigating and aggravating evidence before sentencing a person to death.
If the death sentence is imposed upon the defendant, it may be allowed three types of appeals. The defendant has to make a direct appeal to the Indiana Supreme Court to focus on legal issues. He or she can also choose a state post-conviction review for factual issues (whether defendant was well represented or evidence was suppressed) or a federal habeas corpus review which focuses on the constitutionality of the trial (INDP Facts 2).
Many changes by the General Assembly of Indiana throughout the recent years have tried to revise the state’s processes in capital punishment trials. In 1989, they created the Indiana Public Defender Commission. This commission was responsible for setting standards for appointment and payment of attorneys to represent defendants facing the death penalty. Here they promised to give counties half of their spending back for the defense representation of their defendant (INDP Facts 3). Only four years later the Assembly authorized life without parole as a sentence option in capital murder cases. In 1994, prosecutors were given the ability to request a life without parole sentence instead of death in the capital murder cases (INDP Facts 3). The decision to make life without parole an option likely made it harder to sentence defendants with the death penalty because many people, including judges and prosecutors may be anti-death penalty.
In cutting people from the death penalty list, Indiana cut groups a few years before the U.S. Supreme Court. Indiana had the death penalty for anyone 10 years of age or older, until that changed to 16 years or older in 1987. Indiana raised the eligibility for the death penalty to 18 in 2002, three years before the U.S. ruling on the execution of children came out. Roper v Simmons, a case in 2005, made it unconstitutional in executing defendants under the age of 18 at the time their crime was committed. This was because it was considered “cruel and unusual” and at that age they have a reduced metal capacity, making them less morally culpable (INDP Facts 3).
In 1994, The Indiana General Assembly made mentally retarded persons ineligible for both death and life without parole. It wasn’t until eight years later in the Atkins v. Virginia case that the U.S. Supreme Court ruled there could be no executions of mentally retarded persons because it was a violation of the 8th Amendment’s “cruel and unusual” clause (Walker 230). This was a result of their lessened mental abilities, making them less culpable. Though Indiana still has the death penalty, it is obvious they have made changes in their list of eligible persons for execution even before the U.S. Supreme court.
Though the state of Indiana has made many revisions to its statutes over time to be fair for everyone, it still seems there are inequalities within the system. For example, from 1977 until July 1, 2007, 95.7% of the defendants sentenced were male, only 4.3% were female (INDR Stats 2). White defendants made up the bulk (66.7%) of all, while blacks were 31.2% and Hispanics made up 2.2% of the IN death row during this thirty year period (INDR Stats 2). Though this seems more balanced based on population than other states, blacks in reality are only 9% of the IN population (U.S. Census 2007). One can make the assumption that the sentencing is not a racially equal system based on these statistics. In relevance to the victims, there was a 2002 study conducted for Governor O’Bannon which found the offenders who murdered white victims were six times more likely to receive the death penalty than the murderers of non-white victims (INDP Facts 9). This confirms the claims of the IICACP, Indiana Information Center on the Abolition of Capital Punishment. They are in existence “to expose the injustice associated with the application of the death penalty in Indiana” (IICACP). The injustices exposed through these statistics indicate racial and gender discrimination. Women we usually not sentenced to death and in comparison to the Indiana population demographic blacks had a higher chance of being sentenced to death for murder.
The Death Penalty Information Center’s State by State Information has Indiana with 131 executions before 1976, and only 19 since 1976. These numbers place them as the 24th highest number of executions from 1608-1976 out of all fifty states. Though they are not at either end of the spectrum, they only have one less execution before 1976 than Oklahoma, which took the 23rd spot (DPIC Executions in the U.S. 1). In comparison to the Executions from 1976-2009, Indiana falls around the same place, but the first time period was in 350 year span, and they have had nineteen executions within the past thirty-three years.
A study created for Indiana Governor O’Bannon in 2002 revealed that the cost of prosecuting a murder defendant was 30-37.5% more than the cost of a non-capital prosecution, appeals and lifetime incarceration (INDP Facts 8). It was found that “The cost of death penalty trial and a direct appeal is more than five times the cost of a life without parole trial and direct appeal” (INDP Facts 8). The Death Penalty Information Center released around the same statistic from Indiana. The total costs of the death penalty exceed the complete costs of life without parole sentences by 38%, assuming 20% of death sentences are overturned and reduced to life later (DPIC 4). Even with all of this information on the extremely high costs to have the death penalty as a form of punishment, Indiana still uses the death penalty even without a case for deterrence.
Part of this could be the result of the United States’ roots back to England. The first American Execution took place in Virginia in 1608. This way of punishment was brought over because Americans started out as English colonists and England had regularly used the death penalty for their criminals (Walker 46). The death penalty has been a constitutionally allowable sentence for defendants who have committed serious crimes (Walker 46). Though the methods and statutes have changed over time, the ideals are the same. Because this death penalty within our ideals and roots in building of America, it has been difficult for many states to ban its use.
There has not been much recent legislative activity within the state of Indiana related to the death penalty. Judge Hawkins, trial court judge in Indianapolis, ruled the state’s death penalty statute was unconstitutional because of a recent U.S. Supreme Court decision, Apprendi v. New Jersey (2000). He claimed the state statute denied death row inmate Charles Barker his right to be tried by jury and dismissed the sentence option of the death penalty at the upcoming hearing. In the Apprendi case, the U.S. Supreme Court said that any fact, except for prior convictions, that increases the penalty beyond the prescribed maximum must be submitted to a jury and proven beyond reasonable doubt. In Indiana, the jury makes a recommendation to the judge, who sentences the defendant. Hawkins ruled that the state violates Apprendi because it is possible a judge could sentence an inmate to death even if a jury has failed to find the existence of an aggravating factor beyond a reasonable doubt (Legislative Activity – Indiana). This has yet to be revised or reconsidered at the General Assembly.
The four main objectives, according to Thomas Walker in Eligible for Execution: The story of the Daryl Atkins Case, of the death penalty are justice, deterrence, incapacitation and rehabilitation (Walker 48-50). Though justice, rehabilitation and incapacitation are debated whether to be successful through the death penalty, deterrence came up in reference to Indiana especially. From 1990 through 2000, the FBI deported 4617 murders throughout the state of Indiana. The death penalty was requested by only 153 of the prosecuting attorneys in the state, only 48 went to capital trial and only 25 actually obtained death sentences (INDP Facts 4-5). With this information it makes it difficult to determine deterrence of crime in Indiana through the death penalty. In 1999, the average murder rate per 100,000 people was 5.5 in states that had the death penalty, and only 3.6 per 100, 000 in states without the death penalty. Indiana’s murder rate was 6.6 per 100, 000 (INDP Facts 7). This can make the assumption murder is not deterred, especially in Indiana, by the death penalty.
Therefore, Indiana is ahead of the game when it comes to cutting groups out of the execution eligibility pool, it has a long way to go in revising its statutes and making the eligibility and sentencing processes fair to everyone. U.S. Supreme Court cases, such as Furman v. Georgia and Woodson v. North Carolina have affected statute revisions. Some recent legislative rulings show statutes to remain unconstitutional in relevance to recent court rulings (like the Apprendi case). With high costs and the possibility of a lack of deterrence it is odd they have kept the death penalty around. English roots have been embedded into the discovery of the United States which is most likely the reason states like Indiana cannot let it go. The death penalty is part of our history.
Works Cited
“Executions in the United States, 1608-1976, By State.” Death Penalty Information. 2009.
Death Penalty Information Center. 25 Apr. 2009.s-united-states-1608-1976-state>.
“Facts About the Death Penalty.” Death Penalty Information Center. 17 Apr. 2009. 25 Apr.
2009.
“Indiana.” State and County Quick Facts. The U.S. Census Bureau. 2007. 25 Apr. 2009.//quickfacts.census.gov/qfd/states/18000.html>.
“Indiana Code 35.50-2.” Official Website of the State of Indiana.The Office of Code Revision Indiana Legislative Services Agency. 16 Feb. 2009. 25 Apr. 2009..
“Indiana Death Row Inmates.” Official Website of the State of Indiana. 2 Jan. 2009. 25 Apr.
2009. .
“Indiana Death Row Statistics (As of July 1, 2007).” The Death Penalty. The Clark County
Prosecuting Attorney. 1 July. 2007. 25 Apr. 2009. . abbrv: INDR Stats
“Indiana Death Penalty Facts.” Official Website of the State of Indiana. 2 Jan. 2009. 25 Apr. 2009. . 1-10. abbrv. INDP Facts
Indiana Information Center on the Abolition of Capital Punishment (IICACP). 2009. 25 Apr. 2009. .
“Legislative Activity – Indiana.” Death Penalty Infomation Center. 2009. 25 Apr 2009..
“State by State Information.” Death Penalty Information. 2009. Death Penalty Information
Center. 25 Apr. 2009..
Walker, Thomas G. Eligible for Execution: The Story of the Daryl Atkins Case.Washington DC: CQ Press. 2009.
“Woodson v. North Carolina (No. 75-5491).” Supreme Court Collection. Cornell University Law School. 1976. 25 Apr. 2009._0428_0280_ZS.html>
Note: The Criminal Statutes were both from the Maryland Law Library and the same exact statutes were on the State of Indiana’s official website. I gave in the photocopied ones from the law library but I hadn’t made two copies, so I am using the ones online maintained by the Office of Code Revision Indiana Legislative Services Agency.
