By Marilyn Odendahl
The Indiana Citizen
June 28, 2024
The decision by Gov. Eric Holcomb and Indiana Attorney General Todd Rokita to seek the court’s permission to resume executions of death row inmates is drawing criticism from lawyers who have defended individuals against the death penalty.
In a statement, Holcomb said he was “fulfilling my duties as governor to follow the law and move forward appropriately in this matter.” However, defense attorneys counter the death penalty is ineffective and costly, and say restarting executions would be a “bad idea.”
Holcomb and Rokita filed the verified motion with the Indiana Supreme Court on June 26, asking the justices to set an execution date for Joseph Corcoran who has been on death row since 1999.
“In Indiana, state law authorizes the death penalty as a means of providing justice for victims of society’s most heinous crimes and holding perpetrators accountable,” Rokita said in a statement. “Further, it serves as an effective deterrent for certain potential offenders who might otherwise commit similar extreme crimes of violence. Now that the Indiana Department of Correction is prepared to carry out the lawfully imposed sentence, it’s incumbent on our justice system to immediately enable executions in our prisons to resume.”
Corcoran is one of eight men on death row in Indiana, according to the Indiana Public Defender Council. Three of them, including Corcoran, have had their federal habeas corpus claims denied, while four have appeals pending and one has been found incompetent to be executed.
In a 2015 ruling, the 7th U.S. Circuit Court of Appeals stated Corcoran’s case “has a long and complex history in state and federal court.” Corcoran was found guilty in 1999 of murdering four people in his Fort Wayne home, including his brother and sister’s fiancé, and was sentenced to death.
The motion filed by the state listed the rulings and appeals in the case, then noted Corcoran has no active stay preventing his execution. Telling the Indiana Supreme Court it has the “duty to order a new execution date,” the state asserted “Corcoran is eligible for this Court to order a new execution date.”
Peter Racher, attorney at Plews Shadley Racher & Braun in Indianapolis, has litigated cases involving the death penalty. He represented a plaintiff seeking information about the drugs Indiana had been using in lethal injections and he led a team that represented an inmate on death row in Alabama.
“Re-starting executions in Indiana is a bad idea,” Racher said in an email. “There is no evidence that the death penalty makes us safer. Several states with high murder rates are often the same states that implement the death penalty the most. Implementing the death penalty is expensive, costing taxpayers hundreds of thousands of dollars per case, versus a few tens of thousands of dollars for serious crimes charged with the possibility of long prison sentences or life in prison.”
The Indiana Public Defender Council has posted data to its website that calculates the cost of a death penalty case as $789,581, including the cost for the jury tria,l defense counsel, incarceration and execution. By comparison, the council found the cost of a life without parole case is $185,422, which includes the money paid for the jury trial, defense and incarceration.
Jeremy Mull, Clark County prosecutor and chair of the complex litigation committee at the Indiana Prosecuting Attorneys’ Council, said IPAC was not involved with the decision to resume executions. However, speaking only for himself and not as a representative of the council, Mull said victims’ families would benefit from the decision by the governor and attorney general.
“I can say that most Indiana prosecutors believe that these death penalty sentences should be carried out as promptly as the law allows,” Mull said. “We believe that the long delays are cruel to the families of the victims. They are not consistent with the effectuation of justice and most of us ae pleased that these executions are set to commence again.”
Lethal injection questions shrouded in secrecy
In the announcement, Holcomb stated the executions can now commence because the Indiana Department of Correction has acquired the drug pentobarbital. The governor indicated that the DOC had tried for years to get the drug, but he did not provide any details about how and where it was obtained.
Indiana is one of 28 states that have authorized lethal injections as the execution method, according to the Death Penalty Information Center. Also, Indiana is among the states that have enacted “secrecy statutes” that withhold information about the execution process, including identifying the source of the drugs, the center reported.
Stacy Uliana, a criminal defense attorney who has been involved in three death penalty cases, questioned why the state was not forthcoming about the pentobarbital. She said the state should tell the public how the drug was obtained and do some investigation into how the drug acts as an executing agent.
“If the citizens of Indiana are accepting of the death penalty, then why would we have to keep it secret,” Uliana said. “I think the fact that it’s now closed and secret shows that there is an evolving perception of the death penalty that it’s not worth all the problems it causes.”
The Indiana General Assembly blocked access to information about the execution drugs, after the Indiana Department of Correction was ordered in October 2016 to release all of the public records regarding the three-drug cocktail used to carry out the death sentence.
Katherine Toomey, an attorney in Washington, D.C., had filed the lawsuit against the DOC in January 2015, according to court documents filed in Toomey v. Indiana Department of Correction, 49C01-1501-PL-3149. She was seeking the records that detailed the drugs the state was using for lethal injections, including inventory logs, purchase orders and documents about the drugs’ manufacturers. However, rather than comply with the court order, the state convinced lawmakers on the last day of the 2017 legislative session to amend Indiana Code section 35-38-6-1 to keep the pharmaceutical information concealed.
Subsequently, the Department of Correction returned to court and asked for the previous order to be modified, because the new provision was retroactive and therefore covered Toomey’s lawsuit. Instead, the Marion County Superior Court denied the DOC’s motion in a November 2018 order and declared the legislature had “overstepped its authority” and violated the Indiana Constitution’s separation-of -powers clause by changing the law while the case was pending.
Toomey was represented by Racher at Plews Shadley. Ultimately, the state lost at the Indiana Supreme Court and as a result, Racher said in 2021, it had to pay more than $808,000 in legal fees. Also, the records the DOC produced showed the state’s supply of lethal injection drugs had expired several years ago, Racher said at the time.
A lengthy and expensive process
If the Indiana Supreme Court grants the state’s motion, Uliana said she expects county prosecutors will begin seeking the death penalty more and more. These cases are expensive, she said, because of the extra procedures, extra attorneys and the extended appeals process that are put in place to ensure that an innocent individual is not falsely convicted and executed.
“I’m just concerned that Indiana is going in the wrong direction than the rest of the country,” Uliana said. “It seems like our country’s moving away from the death penalty due to all the problems with it. Study after study shows it’s costly, it’s unfairly applied, it’s unreliable. Whether you think it’s moral or not, isn’t even really the issue anymore. It’s just kind of a waste of money and time.”
Mull asserted the opposite, saying some people would choose not to break the law if they know they could end up being executed. Yet, he said, the effectiveness of the death penalty in discouraging people from illegal activities wanes as inmates linger on death row.
“I do believe that the death penalty can be a deterrent to crime if it is carried out with some sort of swiftness,” Mull said. “But it’s hard to argue that it deters crime when the sentences are carried out 25, 30, 35 years after the fact.”
Racher pointed to his representation of Domineque Ray, who was executed on Feb. 7, 2019 in Alabama as an example of how death penalty cases can go askew. Asserting the defense attorneys at the trial were not informed that the state’s star witness against Ray was suffering from schizophrenia at the time of this testimony, Racher said the criminal justice system is prone to error and when horrific crimes occur, procedural due process is often bypassed.
It can be “easy, even irresistible” for the state to suppress exculpatory evidence or improperly induce a false confession, Racher said. On the other side of the courtroom are overworked and underpaid defense attorneys, he said, who have failed to develop the evidence to challenge the state’s case.
“Indiana has not executed anyone since 2009, aligning Indiana with the majority of the U.S. states and civilized nations around the world that either outlawed or no longer use capital punishment,” Racher said. “In restarting executions in Indiana, our leaders are taking Hoosiers backward, down a regressive path that diminishes our criminal justice system, will not enhance public safety, and wastes the taxpayer’s dollars.”
Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.
