INDIANAPOLIS – On paper, Indiana is one of 29 states that has the death penalty.
But no one has been added to death row since 2013 and it has been a decade since an execution.
Fewer death penalty cases are being filed and many result in plea agreements – such as Marcus Dansby being sentenced in July to 300 years for killing four in Fort Wayne and Anthony Baumgardt receiving life in prison without parole in May for killing a deputy in Boone County.
But nine men sit in cells at the state prison in Michigan City, wondering when they will face the lethal cocktail of drugs. Collectively they killed 13 adults and six children – through gun, blade or fire. Three have exhausted their appeals and still wait – year after year.
“I think it's cruel and unusual punishment to have someone waiting that long for their execution,” said veteran Indianapolis defense attorney Eric Koselke. “I can't imagine living under the threat of death for so long.”
He has been involved with about 30 death penalty cases at various levels – from trial to state and federal appeals. None of his clients have been executed.
Attorney General Curtis Hill hasn't asked for execution dates for those three convicted murderers – Joseph Corcoran, Benjamin Ritchie and Roy Ward – because he said the Indiana Department of Correction doesn't have the drugs needed to carry out an execution.
Until 2016, appeals were still in process and the lack of medication wasn't a problem.
“We are waiting for the green light from DOC,” Hill said. “Inadequate supply chain has been a problem for two years.”
The correction department changed the specific cocktail for lethal injection in 2014 when its supply of lethal injection drugs expired. Indiana uses a three-drug protocol to carry out execution orders: Brevital to induce unconsciousness; Pancuronium or Vecuronium Bromide to stop breathing; and Potassium Chloride to stop the heart, according to the department's website.
A lawsuit challenged the change – alleging the state didn't follow proper procedure – but ultimately the Indiana Supreme Court ruled in favor of the state.
Indiana and other states – along with the federal government – have struggled to obtain the drugs needed because many pharmaceutical manufacturers don't want to be associated with executions.
A few states, including Georgia, Missouri and Texas, have switched to just one drug – Pentobarbital. That's what the U.S. attorney general said the federal government would do when he announced two weeks ago federal executions would resume.
The correction department confirmed to The Journal Gazette the state doesn't have the necessary drugs to conduct an execution. But even before the drug supply became a problem, the death penalty was waning.
Indiana authorized capital punishment in 1897 and hanged 13 people up until 1913. At that point electrocution became the method of execution by which 62 prisoners were put to death. In 1995 the method switched to lethal injection and 19 people have been executed.
The longest period between executions was 20 years – 1961 to 1981. But there was a national moratorium on the death penalty in the 1970s with more than a dozen Indiana death sentences set aside. Indiana's death penalty statute was reinstated in 1977 and cases began working their way through the system again.
There was another gap between 1985 and 1994 without an execution. But starting in 1996 there was generally one a year with five in 2005. Former Gov. Mitch Daniels oversaw nine executions – the last being Matthew Wrinkles in December 2009.
Huntington County Prosecutor Amy Richison said some of the shift away from the death penalty started in 1993 when lawmakers allowed life in prison without parole as a sentence in capital cases. She chairs the capital litigation committee for the Indiana Prosecuting Attorneys Council.
The Indiana Public Defender Council receives notice of every death penalty filing but no entity gets notice of life without parole filings.
There are currently only two active death penalty cases in the state.
Richison also said the duration of a death penalty case is much longer than a typical murder case – prosecutors are lucky to get to trial within three years. And the cost of the prosecution and defense falls on counties, meaning economics plays a role in deciding whether to seek the death penalty.
Also, once a county prosecutor gets a conviction, the case is out of their hands.
“Absolutely there is frustration,” Richison said. “To whom we direct our frustration is the question. I perceive the attorney general is taking the necessary steps to move them forward. But the lack of resolution for victims is incredibly frustrating.”
Nationally, those under a death sentence average 151/2 years between sentencing and execution. Corcoran – who killed four men in Fort Wayne during the summer of 1997 – has been on death row since 1999. The longest-serving death row inmate in Indiana is Eric Holmes, who was sentenced in 1993 for killing two people during a robbery.
“The victims' families are a big factor in why death penalty filings have dropped,” Koselke said. “People are aware of how long this process takes and they want closure and don't want to go through it.”
Hill said he still believes the death penalty is a deterrent, but would like to see the appeals process condensed while still protecting due process. He said punishment in general is more effective when it comes closely after the crime.
“The lengthy time of the appeals process has created a scenario where a lot of people are more likely to die in prison of natural causes than be executed,” Hill said.
Koselke said prosecutors are using more discretion when seeking death, but noted that many murders fall under the statute due to an extensive list of aggravating circumstances. One reason he believes the death penalty needs to be abolished is that the status of the victim has more to do with seeking the death penalty than anything. He noted death penalty applications are common when children or police officers are victims.
A lawsuit is pending challenging the constitutionality of the death penalty in Indiana but is in its early stages and there is no injunction blocking executions.
On death row
Indiana's death row currently consists of seven white men and two black men.
Fredrick Baer: Killed a woman and her 4-year-old daughter in 2004 near Lapel. His death sentence has been set aside and he is awaiting a new sentencing.
Joseph Corcoran: Killed four men in 1997 in Fort Wayne. He has exhausted all appeals.
William Gibson: Southern Indiana serial killer that murdered three women between 2002 and 2012. He was sentenced to death in two cases.
Michael Dean Overstreet: Killed a Franklin College student in 1997.
Benjamin Ritchie: Killed a Beech Grove police officer in 2000. He has exhausted all appeals.
Roy Ward: Raped and killed a teenager in rural Indiana in 2001. He has exhausted all appeals.
Kevin Isom: Killed his wife and her two children in Gary in 2007.
Jeffrey Weisheit: Killed two children during an arson fire at his Vanderburgh County home in 2010.
Eric Holmes: Stabbed two supervisors to death at his Indianapolis workplace in 1989.