Saylor v. Indiana , 2004 Ind. LEXIS 464 ( 2004 )

SHEPARD, Chief Justice,

dissenting.

As we did when the Court considered the appropriateness of Saylor's sentence during his direct appeal, we have always approached the question by examining all of the aggravating and mitigating circumstances.

Saylor's case presented two aggravating circumstances. One was that he "intentionally" killed Judy VanDuyn, whose only offense was taking her clothes to the laundromat late in the evening. The weight of this aggravator, measured by the level of Saylor's intentionality, has always seemed substantial. Saylor stabbed Ms. VanDuyn forty-five times, aiming half of these blows at her left breast.

The second aggravating circumstance was that Saylor committed the murder at a moment when the judicial system had offered him grace on the promise of good behavior: he was on probation when he killed a human being over the $22 she was carrying.

As Justice Boehm notes, both the sentencing judge and this Court have rejected most of Saylor's claims concerning mitigating cireumstances. Until today, only a few of these have been found viable: a troubled childhood, consuming drugs and alcohol at the time of the offense, and a history of substance abuse. We earlier declared that, individually and collectively, these were entitled to low "if any" mitigating weight. Saylor, 686 N.E.2d at 89.

To these mitigating cireumstances, the Court now adds the changes in the death penalty statute prompted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). These changes had little to do with defendants situated like Benny Saylor, whose jury, after all, found beyond a reasonable doubt both the aggravating circumstances that render him eligible for the death penalty. I thus do not regard these amendments, even if one can plausibly describe them as a "mitigating circumstance", as adding enough to make Saylor's sentence inappropriate. The high level of culpability reflected in the two aggravators still more than outweigh the modest mitigators.

But so it will be. Saylor will be relieved of the penalty imposed for his 1992 crime. And, it is clear enough, so will others who are presently sitting on death row.