Sunday, 25 February 2007

Suspend the death penalty

OUR OPINION: Suspend the death penalty
February 25, 2007 6:59 AM


Imposition of the death penalty is deeply flawed in Indiana. A moratorium on executions should be in place until those failings are corrected.

The American Bar Association's death penalty assessment team is helping Hoosiers to understand just how far the state must go before it will be prepared to justly carry out capital sentences. The ABA's assessment was conducted over 20 months. Its final report was released Tuesday.

The assessment team found that Indiana is in full compliance with only 10 of the ABA's 93 protocols for administering the death penalty.

One of the team members came to the task with considerable personal experience. In 2004 and in 2005, then-Gov. Joe Kernan granted clemency in two cases in which convicted murderers were awaiting death by lethal injection. Darnell Williams and Michael Daniels are exhibits 1 and 2 in the argument for a moratorium on executions.

Kernan wasn't personally opposed to the death penalty when he delved into Williams' and Daniels' clemency requests. He still isn't. But he has no doubt that Indiana is far from prepared to carry out executions in a fair and just manner.

Both Williams and Daniels are borderline mentally retarded. In both crimes, there were accomplices who were spared the death penalty. There also were serious doubts as to whether either Williams or Daniels was the trigger man, as well as doubts as to the defendants' capacities to assist with their defenses.

Daniels had been on death row for 25 years when the clemency order was issued. In that time, his conviction was reversed, upheld, overturned and reinstated.

The reasons for that ambivalence? Daniels received an inadequate defense. Evidence casting doubt on his guilt existed but never was presented in court. He also is severely mentally ill, suffering from delusions and paranoia. He cannot make rational decisions or speak for himself and must be represented by a guardian. Yet the state of Indiana, carefully following existing laws and procedures, was prepared to kill him.

Williams' case is no less persuasive. His co-defendant, whose IQ is comparable to Williams' IQ, was the likely shooter. But the co-defendant's sentence was overturned because he is mentally retarded. Williams' wasn't. He was within a week of execution when Kernan commuted his sentence.

Executive intervention is rare in Indiana. The cases of Williams in 2004, Daniels in 2005 and Arthur Baird II, who was granted clemency by Gov. Mitch Daniels in 2006, are the only three times governors have stepped in with clemency in the 50 years since the death penalty was reinstated.

It would be naive to think that those three cases were the only ones in which questions of representation, proportionality and competence were not adequately addressed, particularly in light of the ABA's long list of needed reforms. Anyone wishing to read the complete report can find it at

What should happen now? In Indiana, the governor has the authority to grant clemency in individual cases. Courts can issue stays of execution. And the General Assembly can change the law. Kernan believes that representatives from these three branches of state government should sit down together, review the ABA team's findings and jointly declare a moratorium.

There is much work to be done before Hoosiers can be confident that Indiana's death penalty is just. Most of it can't be done quickly. For example, a bill introduced in the state Senate this year would have banned execution of the mentally ill, which is one of the ABA's recommendations. Unfortunately, the bill did not come out of committee in this session and will need to be taken up again next year.

Another ABA recommendation would increase mandatory training of county coroners. Such a change is presumed to require an amendment to the Indiana Constitution. It would have to undergo the lengthy process of being adopted by two General Assemblies and approved by voters on a statewide ballot.

After the death penalty is carried out, it's too late to go back and fix mistakes. But mistakes can be prevented. Indiana's leaders should take to heart the ABA's recommendations and undertake the process. In the meantime, a moratorium on executions is essential.

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