No Drugs, No Movement – ​​


Indiana’s death row has not expanded and no executions have taken place since 2009. Photo courtesy of Getty Images.

By Leslie Bonilla Muniz
Indiana Capital Chronicle

INDIANAPOLIS — Eight men languish on Indiana’s death row as the state struggles to obtain the drugs needed to carry out an execution. Its oldest resident lived 29 years awaiting execution; its most recent addition has waited eight.

Indiana’s de facto moratorium on executions has some prosecutors doubting even a successful conviction will be carried out, and advocates worry about convicts who live for years under threat of death.

Meanwhile, other states such as Texas and Oklahoma have carried out executions this year.

Four of the men on death row in Indiana have exhausted all appeals and have no other recourse, according to the Indiana Public Defender Council. website. But the Indiana Department of Corrections has no execution order or set date, according to spokeswoman Annie Goeller.

Indiana has not put a man to death since December 2009, when it executed Matthew Eric Wrinkles. All of the men reside in Indiana State Prison in Michigan City.

That’s because the agency doesn’t have a supply of three drugs — methohexital, pancuronium bromide and potassium chloride — that it would use in its lethal injection drug cocktail, Goeller confirmed.

Indiana and other governments have struggled in recent years to acquire the drugs from pharmaceutical manufacturers who don’t want their products — which are for therapeutic purposes — used in executions. Some, like Texas, have moved to a single-drug protocol of pentobarbital.

“Indiana, like many states, is exploring available options,” Goeller wrote in an email.

“My responsibility is to move forward”

Madison County District Attorney Rodney Cummings has pursued the death penalty in two of at least four cases since taking office in 1994.

Cummings announced his second on August 17. But he is skeptical about how it will play out.

Carl Roy Webb Boards II, 42, Anderson, is charged with shooting dead Elwood police officer Noah Shahnavaz, 24, Fishers, during a traffic stop at 2 a.m. on July 31.

“The process in this case is, ‘Is this case among the worst of the worst? And I’ve never seen anything like this before in a police shootout, basically,” Cummings said. “I mean, he shot him 36 times.”

Cummings said he made the decision to pursue the death penalty after carefully reviewing the evidence himself, having experienced Indiana prosecutors assess the case and asking Shahnavaz’s family if they wanted to move forward.

“I think the likelihood of a conviction is quite — very high,” Cummings said.

Yet, he added, “I think the likelihood of this defendant ever being executed is unlikely. But we all have our responsibilities in the process, and my responsibility is to move forward in an appropriate case.

Cummings’ office requested an additional $50,000 in its 2023 budget to cover early costs for a case that is expected to span years to come.

A cruel wait?

Eric Koselke defended his first death sentence case in 1985, six months after law school. Since then, Koselke told the Capital Chronicle, “I did everything.”

The fact that Indiana has no executions scheduled and no drugs in stock offers him little comfort.

“They could get them at any time. I mean, we don’t know what’s going on with that, as defense attorneys. They’re not going to tell us,” said Koselke, who is a death penalty consultant for the Public Defender Council of Indiana in addition to managing his own affairs.

Waiting doesn’t change the math, he said, because for defense attorneys, the odds of success peak at trial and fall with each appeal.

But the expectation of death preoccupies him.

“I still think the sentences should be commuted,” Koselke said. “These guys are just sitting there, captive, for people they know are going to kill them one day, and they don’t even know when they’re going to die.”

“In my opinion…I think this is cruel and unusual punishment,” he said. “I mean, they’ve been there for years waiting to be executed, and I can’t imagine living under that kind of pressure.”

Four of the men who sit on Indiana’s death row have no appeals. Three have appeals pending and one has been deemed incompetent to be executed.

Other states are moving forward

Not everyone has difficulty obtaining drugs used for lethal injections.

Five states have executed 10 people in 2022, as of August 25, according to the Death Penalty Information Centera non-profit organization that tracks death penalty data and disseminates reports.

According to communications director Amanda Hernandez, the Texas Department of Criminal Justice, which has carried out two executions this year, uses only pentobarbital.

When asked if his agency had had any difficulty sourcing the drug, Hernandez simply wrote, “We have sufficient supply.”

The Indiana Department of Corrections did not respond to questions about its procurement attempts and declined multiple interview requests.

But in a lawsuit that lasted years, agency staff argued that without confidentiality for manufacturers and distributors, it was “virtually impossible” to obtain the drugs.

Washington, DC attorney Katherine Toomey requested information about the 2014 lethal injections under Indiana’s Public Records Access Act.

“The Department of Correction wrote him a letter that basically said, ‘Take a long walk from a short pier,'” said Peter Racher, partner at Indianapolis-based Plews Shadley Racher & Braun. He and Josh Tatum eventually argued Toomey’s case, filed in 2016.

Debra Lynch, a federal judge for the United States District Court for the Southern District of Indianawrote an order in favor of Toomey in 2017. But behind the scenes, the Department of Correction was working with the governor’s office to devise a legislative solution, according to Racher, aimed at Toomey’s claim.

On the last day of the 2017 legislative session, lawmakers inserted a provision exempting lethal injection information from the state public records law into a lengthy budget bill. Lynch granted summary judgment to the agency instead.

When the Indiana Supreme Court took it up, its four members — one of whom recused himself — split, upholding Lynch’s decision in 2021.

But the records Toomey had requested showed that Indiana had failed to procure drugs for years.

“Even if, you know, The New York Times ran the front-page footage of the recordings that we obtained, there was no way that information would have any current impact on anything,” Racher said.

“They made it seem like if those records came out, it would be the end of the death penalty in Indiana,” he added. “But I don’t think you can say it’s because of Kate Toomey’s request for the public records.”

Indiana’s death row

  • Eric D. Holmes, sentenced in March. 26, 1993; more calls.
  • Joseph E. Corcoran, sentenced Aug. 26, 1999; more calls.
  • Michael D. Overstreet, sentenced July 31, 2000; deemed incapable of execution.
  • Benjamin Ritchie, sentenced October 15, 2002; more calls.
  • Roy Lee Ward, sentenced June 8, 2007; more calls.
  • Kevin Charles Isom, sentenced March 8, 2013; pending federal habeas corpus review.
  • Jeffrey Alan Weisheit, sentenced July 11, 2013; pending federal habeas corpus review.
  • William Clyde Gibson III, sentenced November 26, 2013 and April 15, 2014; pending federal habeas corpus review.

Sources: Indiana Public Defender’s Council

The Indiana Capital Chronicle is an independent, nonprofit news organization dedicated to providing Hoosiers with comprehensive insight into state government, politics and elections.

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