Experts say Court of Appeals ruling leaves Indiana's death penalty in limbo

Indiana's death chamber

The death penalty in Indiana cannot be carried out as of June 1. That’s the day a Court of Appeals panel declared the lethal injection cocktail adopted by the Department of Correction “void and without effect” because the agency enacted its execution protocol without hearings or public input.

Legal experts from Indiana’s law schools said the decision casts uncertainty on the death penalty going forward, though they said by no means is the court’s ruling a moratorium on future executions.

“We’re at least 18 months to two years before anything happens” in terms of the state adopting a new execution protocol, predicted Valparaiso University Law School Dean Andrea D. Lyon, who’s written several books and scholarly articles on the death penalty. She explained that for the DOC to continue to carry out executions, it’s left with two options — seek to appeal the decision to the Indiana Supreme Court or begin the administrative rulemaking process. Neither of those processes would quickly resolve how Indiana executes death row inmates.

“I would be surprised if the Indiana Supreme Court took the case,” Lyon said. “It’s a pretty clear administrative ruling that follows a lot of precedent and a lot of common sense … even though it’s on a volatile subject.”

“We are disappointed with the Court of Appeals’ decision,” said Corey Elliot, spokesman for Attorney General Curtis Hill, after the panel ruled in Roy Lee Ward v. Robert E. Carter, Jr., Commissioner of the Indiana Department of Correction, and Ron Neal, Superintendent of the Indiana State Prison, in their official capacities, 46A03-1607-PL-1685. “At this point, we are closely reviewing the case, consulting with our client agency and considering all possible options, one of which is to ask the Indiana Supreme Court to review the case.”

The COA reversed LaPorte Circuit Judge Thomas J. Alevizos’ dismissal of a death row inmate’s civil case. Judge John Baker wrote for the court that the Legislature did not explicitly exempt the DOC from the Administrative Rules and Procedure Act, so it must conduct public hearings and accept public comments in formulating an agency rule on how the state will carry out executions.

Administrative review could present the DOC with more political than practical problems, Indiana University Robert H. McKinney School of Law professor David Orentlicher and other experts said. An administrative rules procedure would compel DOC to propose its execution protocol, which would then be subject to public hearings, public comment, and heightened scrutiny.

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Source: The Indiana Lawyer, Dave Stafford, June 14, 2017

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