Capital cases not only impose significant burdens, but also shape public knowledge, trust, and confidence in the judicial system.
The responsibilities and work of a state court of last resort are significantly affected by the presence of capital punishment as a sentencing option in the state penal code. The effects are most apparent in decisional workload, administrative functions, and public perception of the judiciary generally.
The Indiana legislature reinstituted the death penalty in 1977,1 following the United States Supreme Court decision in Gregg v. Georgia, 428 U.S. 153 (1976). During the ensuing 27 years, Indiana trial courts ordered the death penalty for 90 defendants. These cases produced 148 Indiana Supreme Court majority opinions, 45 reversals of the sentence with the defendant no longer eligible for the death penalty, but now serving a sentence other than death (life imprisonment without parole or for a specific term of years), and 16 executions. In the course of the 16 cases resulting in an execution, there were 33 state trial court proceedings (including trial, re-trial, and post-conviction hearings), 44 state supreme court majority opinions and substantive orders, and 25 federal court opinions.
Since 1990, death penalty cases in Indiana have been governed by a specialized rule regarding the appointment, qualifications, and compensation of trial and appellate counsel in capital cases. This rule was promulgated by the Indiana Supreme Court, which has exclusive original appellate jurisdiction in capital cases. Because trial and appellate counsel for almost all capital defendants in Indiana are appointed at public expense, Indiana's judicial experience with capital cases is best viewed in light of the practice, procedure, and results observed following the implementation of these rules.
Between the time of the rule changes in 1990 and November 15, 2005, the death penalty has been sought in Indiana trial courts against 174 defendants, of which 4 were acquitted or the charges dismissed before trial, and 30 were sentenced to death. Of these 30 defendants, 3 have been executed and 9 death sentences have been reversed with the defendant now sen-ing a sentence other than death. Eighteen of the 30 death sentences remain in appellate review or are awaiting new trials.
Over the most recent 10-year period, from 1995 through 2004, capital opinions in Indiana (including cases on direct appeal and collateral review) accounted for approximately 7 percent of the total number of signed majority opinions issued by the court.2 During this same period, however, the number of capital cases decided accounted for only 0.92 percent of the total number of cases decided by the court (including those on which review was denied by order). Thus, capital cases account for less than 1 percent of the court's caseload, but more than 7 percent of its number of written opinions. In the past 10 years, our court has decided an average of about 1,075 cases per year and issued an average of about 137 signed opinions per year, of which an average of 10 were capital cases opinions.
Judicial time and effort
Each of the court's capital case opinions represented a substantially disproportionate investment of judicial time and effort. Judicial opinions in death penalty cases are characteristically more extensive than those in non-capital criminal appeals. Because of the finality of the sentence, both defense counsel and the reviewing court endeavor to be particularly thorough and comprehensive. Courts are also inclined to address more claims on the merits and to be somewhat more hesitant to apply procedural forfeiture. It is not unusual for capital appeals to present a significantly greater number of issues than would likely be seen in non-capital cases, often including issues on which there is no basis under existing law, but wherein counsel is requesting a reexamination of precedent or seeking to preserve an issue for federal review or in anticipation of possible future modification of the law. …