I thru VIII discuss this capital jurisprudence and why a constitutional death or LWOP sentence is impossible under current capital sentencing scheme. A substantial body of research conducted over the past two and a half decades exists which examines how the death penalty statutes are applied by jurors. Most of this data comes from actual capital jurors through the Capital Jury Project In Section IX, the constitutional mandates of the U.S. Supreme Court are outlined and discussed in light of the jury research which persuasively demonstrates that capital jurors are not applying capital sentencing statutes in a manner consistent the relevant statutes, or the state and federal constitutions. I. The Death Penalty is Imposed Arbitrarily and Capriciously, with an Inappropriately High Risk of Discrimination and Mistake, in Violation of the Eighth and Fourteenth Amendments to the United States Constitution and Art. I §§ 16 & 18 of the Indiana Constitution. In 1973, the Supreme struck down the various death penalty schemes then in existence. Furman v. Georgia, 408 U.S. 238 (1972). The decision was 5-4 and each justice wrote an opinion. The freakish nature in which the death penalty was being applied by the states was a driving force behind the Furman decision. Justice Brennan described it in this manner; When the punishment of is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed it smacks of trial Trial
less than the court has routinely failed to consider whether particular evidence establishes a nonstatutory mitigator and has routinely assessed such evidence solely in terms of whether the evidence rises to the level of a statutory mitigating factor. See generally, Brown v. State, 577 N.E.2d 221, 234 (Ind. 1991) (assessing mental health mitigation solely in terms of whether it rose to the level of statutory mitigation without considering whether, even if it did not rise to level specified there, it was nevertheless nonstatutory mitigation under (c)(8)); Lowery v. State, 547 N.E.2d 1046, 1059 (Ind. 1989) (same), but see, Evans v. State, 598 N.E.2d 516 (Ind. 1992) (even though defendant's psychiatric disturbance did not qualify for consideration as statutory mitigation, based on its long-standing, documented history, it must be considered as nonstatutory mitigation). This pattern of failing to assign any weight whatsoever to relevant, constitutionally mitigating circumstances demonstrates the unconstitutional application of Ind. Code § 355029(c). The pattern of Indiana's trial and appellate courts is contrary to the specific language of Lockett, Eddings, Hitchcock, and Skipper. VII. The Advisory Language Violates Caldwell v. Mississippi Because it Diminishes the Role in Capital Sentencing and is Misleading. The penalty statute retains the advisory description of the role. Five times the statute references the duty as making a
3 Percentages of Jurors Considering Death Only Acceptable Punishment for Six Types of Murder by State prior murder conviction Planned premed- itated murder Murder with multpl. victims Killing police/ prison Murder by drug dealer Murder during other crime N AL 66.7% 54.4% 57.9% 37.5% 46.4% 36.8% 56 CA 58.6% 41.4% 41.1% 41.4% 33.6% 17.8% 151 FL 77.6% 64.1% 62.1% 51.3% 52.6% 19.7% 115 GA 70.8% 54.8% 46.6% 51.4% 47.2% 23.6% 72 IN 74.7% 54.5% 55.6% 44.4% 52.5% 23.2% 99 KY 71.2% 56.7% 50.5% 46.6% 48.5% 18.1% 103 MO 75.4% 54.1% 52.5% 45.9% 38.3% 19.7% 61 NC 73.8% 68.8% 55.0% 58.8% 45.0% 21.5% 79 PA. 71.8% 65.4% 62.8% 55.1% 47.4% 28.2% 78 SC 76.3% 61.4% 54.4% 43.0% 49.1% 26.5% 113 TN 78.3% 67.4% 58.7% 54.3% 43.5% 30.4% 46 TX 76.9% 57.3% 59.5% 58.6% 48.7% 35.3% 116 VA 55.6% 46.7% 40.0% 48.9% 42.2% 15.6% 45 ALL 71.6% 57.1% 53.7% 48.9% 46.2% 24.2% 1164 As the Table above indicates, the CJP documents profound deviations between reality and what capital jurisprudence under Morgan, Witt, and Dye