The Journal Gazette
Friday, November 02, 2018 1:00 am

Death penalty tactic rests on age

Dansby team takes novel tack

MATTHEW LEBLANC | The Journal Gazette

Marcus Dansby was 20 years old in 2016 when he allegedly killed four people, crimes for which prosecutors want him executed.

But lawyers for Dansby, now 23 and facing the death penalty, argue that executing someone who committed a crime when he or she was under 21 runs afoul of the U.S. Constitution's prohibition of cruel and unusual punishment.

Attorneys Robert Gevers and Michelle Kraus filed paperwork Wednesday asking a judge to throw out the death penalty as an option for Dansby, whose trial is scheduled to begin in April. The request comes after they filed a nearly 100-page document Tuesday in Allen Superior Court that asks the judge to declare the state's death penalty law unconstitutional.

Gevers and Kraus argue that shifting opinions on the age at which offenders can be put to death, recent court rulings that invalidated death sentences for younger defendants, and increasing research on the maturity of young people's brains are reasons to reconsider the death penalty.

The argument is based on a 2005 U.S. Supreme Court case that challenged the death sentence for a Missouri 17-year-old. Justices held that imposing the death penalty on defendants younger than 18 is unconstitutional.

The high court noted “a national consensus” had built against executing people younger than 18.

Gevers and Kraus add to that, stating in a 68-page filing that “a national consensus has developed against executing offenders who were under 21 years of age at the time they committed their offense(s).”

“Nineteen states plus the District of Columbia and five United States territories effectively ban the death penalty,” they wrote. “Four additional states have imposed moratoria on executions and, during the last 15 years, seven states have demonstrated an actual practice of neither executing nor sentencing to death offenders who were under 21 years of age at the time they committed a capital offense.”

The lawyers also argue that courts must consider “the evolving standards of decency” to determine what punishments are cruel and unusual.

It's a novel approach, said Robert Dunham of the Death Penalty Information Center, a Washington, D.C.-based clearinghouse for data on capital punishment in the U.S. More lawyers are challenging the death penalty on similar grounds, he said, and a trial court in Kentucky recently ruled that state's capital punishment law is unconstitutional as it's applied to offenders younger than 21.

“These lawyers are keeping up with important developments,” Dunham said, referring to Gevers and Kraus. “It's an emerging issue nationwide, and this is one of the more significant early challenges.”

Allen County Prosecutor Karen Richards has declined to discuss the Dansby case.

Dansby is charged with four counts of murder in the Sept. 11, 2016, deaths of Traeven Harris, 18, Consuela Arrington, 37, Dajahiona Arrington, and the fetus she was carrying. The unborn child was later determined to be his.

Trinity Hairston was shot and stabbed but survived. Dansby is charged with attempted murder in that alleged attack.

The earlier filing from his lawyers argues the state's death penalty law violates several portions of the U.S. and Indiana constitutions. It is “disproportionate and vindictive” and “has no deterrent effect,” the document states.

Judge Fran Gull will consider both requests, and hearings are scheduled over two days in December. Kraus said this week it's unlikely Gull will grant the request to find the state law unconstitutional.

That and the motion to exclude the death penalty could be used in appeals if Dansby is convicted, however.

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