Georgia Criminal Law Blog

The following Article is from the Atlanta Journal-Constitution.  The ABA report, which points out several flaws that need to be fixed in Georgia’s system, was published on Monday, January 29, 2005.  Governor Perdue’s spoksperson said that the Governor would not consider a moratorium.  

 

CAPITAL PUNISHMENT: Georgia death penalty bashed
Bar Association report cites flaws, urges moratorium on prosecutions
Bill Rankin, Cameron McWhirter - Staff
Sunday, January 29, 2006

Georgia should place a moratorium on seeking the death penalty because it cannot ensure fairness in defendants’ trials and appeals, according to a new report by the American Bar Association.

The report, to be published Monday, found seven flaws that compromise Georgia’s administration of the death penalty. In two instances, the ABA report said, Georgia makes it tougher for capital defendants to avoid execution than any other state.

Georgia stands alone in the nation in not guaranteeing lawyers to death row inmates at a critical stage of their appeals, the report noted.

The ABA report also found that Georgia has set the toughest standard in the United States for a defendant to prove he or she is mentally retarded.

Asked whether Gov. Sonny Perdue would consider a moratorium, his spokesman, Dan McLagan, said simply: “Nope.”

Attorney General Thurbert Baker, through a spokesman, said he does not agree with the call for a moratorium. The spokesman did not elaborate.

The recommended moratorium on death penalty prosecutions is contained in a 323-page report prepared by 10 prominent Georgia lawyers and political figures, including a former state chief justice, law professors, criminal defense lawyers, former prosecutors and a legislator.

The 400,000-member ABA is the nation’s largest legal organization.

“The purpose of this [study] is to move the system forward so that it’s more capable of providing even-handed justice on a consistent basis,” said Anne Emanuel, associate dean of the Georgia State University law school and chairwoman of the ABA study.

All 10 members of the assessment team, except Donnie Dixon, a former U.S. attorney in Savannah, recommended the moratorium.

Dixon said Saturday that he supported many of the report’s findings but felt most death penalty cases had been handled properly.

“Most of the cases on death row, the individuals got there through a fair process,” Dixon said.

The report likely will be used as ammunition by national groups opposed to the death penalty and by lawyers handling appeals for inmates on death row. But the death penalty has strong support from Georgia voters and politicians, and any substantial change would seem unlikely before this year’s state elections.

Bills were introduced in the Georgia Legislature last year to hold off on executions while the state studied whether there were inequities in the way the death penalty is applied. The bills went nowhere.

“We’re not trying to debate the death penalty,” said Sen. Sam Zamarripa (D-Atlanta), who introduced the Senate version. “We’re just trying to determine if we in Georgia have the highest and best practices.”

Harold Clarke, retired Georgia Supreme Court chief justice and a member of the ABA study team, supports a moratorium. “There are too many instances — and one’s too many — where folks are convicted and turn out not to be guilty,” Clarke said, “and then there are some more that we probably never know about.”

Prosecutors argue that existing safeguards are adequate. They note there is no known instance of an innocent person being executed in Georgia.

“Georgia is very careful and very deliberate in its imposition of the death penalty,” said Dougherty County District Attorney Ken Hodges, vice chairman of the Prosecuting Attorneys Council of Georgia. “The defendant in a capital case is given every right afforded him or her under the U.S. and Georgia constitutions. They get a heck of a lot more constitutional protections than the victims, who are heinously, brutally raped and murdered.”

Hodges cited the case of William Marvin Gulley, who killed an 81-year-old Albany woman and raped her 60-year-old daughter. The state Supreme Court overturned Gulley’s death sentence last summer after finding his lawyers failed to show jurors that Gulley saved the lives of two people in 1992.

“The system worked,” Hodges said.

He said he later agreed to a sentence of life in prison without parole for Gulley because the victims’ family did not want another trial.

Numerous problems

Nine years ago, the ABA called for a nationwide moratorium on executions in the 38 states with the death penalty but stopped short of asking for a suspension of capital prosecutions.

The organization in 2003 launched a comprehensive review of death penalty systems in 16 states that had not already done them.

The ABA’s report on Georgia, the first to be completed, found numerous problems in the way capital defendants are tried here:

> Georgia is the only state that does not guarantee a lawyer for a condemned inmate’s habeas corpus appeals, which challenge the constitutionality of convictions and sentences and sometimes result in new trials. “The lack of counsel . . . creates a situation where this critical constitutional safeguard is so undermined as to be ineffective,” the report said.

> It is unclear if a new statewide defender system for capital cases will be properly funded so it will work as planned. The report noted many death sentences were imposed before the new system, which guarantees experienced lawyers for indigent defendants, was funded by the Georgia Legislature in 2004.

> The state Supreme Court must ensure each death sentence is not disproportionate to penalties imposed in similar cases. But the court does not consider murder cases where a sentence less than death was imposed, meaning its review is “incapable of uncovering potentially serious disparities.”

> Surveys show too many jurors misunderstand a judge’s instructions about what evidence they can consider when weighing the death penalty. “Death sentences resulting from juror confusion or mistake are not tolerable,” the report said.

> Race remains a factor in convictions, with convicted murderers of white victims much more likely to receive a death sentence than murderers of black victims.

> Of the states that have adopted procedures for determining whether defendants are mentally retarded, Georgia is the only one that makes them prove retardation beyond a reasonable doubt — the highest standard. In 2002, the U.S. Supreme Court declared execution of the mentally retarded unconstitutional.

> Georgia law allows the death penalty for the crime of felony murder, which is a killing in the commission of another felony. The report said the death penalty should only be imposed for malice murder, where a defendant acts with an intent to kill or a reckless disregard for human life.

Death sentences decline

Even though capital punishment has strong public support nationwide, the number of executions and death sentences has been steadily declining.

Legal experts cite the passage of laws allowing jurors to sentence convicted killers to life without parole as a major reason.

Since 1998, when 302 murder defendants were condemned nationwide, the number of death sentences has dropped by two-thirds.

Last year, 96 defendants were sentenced to death nationwide.

Four states with death penalty statutes have halted executions for the time being.

Earlier this month, New Jersey banned executions for a year while a task force determines whether the state’s application of the death penalty is fair.

Six years ago, then-Gov. George Ryan halted executions in Illinois after revelations that wrongfully convicted inmates had made it to death row.

Appellate courts in Kansas and New York, citing unfair sentencing laws, declared the death penalty unconstitutional there in 2004. Capital punishment has yet to be restored in either state.

Lawmakers in more than a dozen states derailed legislation to impose a death penalty moratorium last year.

Georgia’s history

In Georgia last year, prosecutors sought capital punishment against about four dozen defendants. One woman and 107 men reside on Georgia’s death row.

Georgia has played a pivotal role over the past four decades in the ongoing debate over capital punishment.

From the 1930s to the 1960s, Georgia executed more prisoners than any other state. Many anti-death penalty activists criticized the state’s use of executions, arguing it was racist and capricious.

The issue came to a head when Henry Furman, convicted of killing a man during a burglary, appealed his death sentence to the U.S. Supreme Court.

Furman’s lawyers argued that executing Furman would be arbitrary and violate the Eighth Amendment’s guaranteee against “cruel and unusual punishment.”

In 1972, the Supreme Court ruled 5-4 that the Furman case, as well as similar cases in Florida and Texas, should be overturned.

In a deeply divided ruling, the majority of the court — in five separate opinions — determined that the death penalty, as then applied in those states, was unconstitutional.

The court’s chief complaint was that the three states did not have clear rules for when a prosecutor could seek the death penalty.

Justice Potter Stewart compared receiving a death sentence to being struck by lightning.

The ruling led to a de facto national moratorium on the death penalty.

In response, Georgia lawmakers established guidelines for prosecutors on the death penalty.

In 1976, the high court ruled 7-2 that Georgia’s guidelines were constitutional and reinstated the death penalty.

Georgia has executed 39 men since then.

THE ABA’S GEORGIA ASSESSMENT TEAM
> Anne Emanuel, associate dean and professor at Georgia State University law school.
> Harold Clarke, retired chief justice of the Georgia Supreme Court.
> Donnie Dixon, a private attorney in Savannah, former U.S. attorney for Southern District of Georgia.
> Timothy Floyd, visiting professor at Georgia State University law school, litigator of death penalty appeals.
> State Sen. Vincent Fort (D-Atlanta), professor of history and political science at Morris Brown College.
> Bill Ide, partner at McKenna Long & Aldridge in Atlanta, former president of the American Bar Association.
> Kay Levine, assistant professor at Emory University law school, former California prosecutor.
> Jack Sammons, professor at Mercer University law school.
> David Shipley, professor and former dean at University of Georgia law school.
> Douglas Stewart, partner at Stewart, Melvin & Frost in Gainesville, former president of the State Bar of Georgia.

JEROME THOMPSON / Staff
Death penalty, state by state
Map of U.S. shows states color-coded to indicate whether the death penalty is allowed, banned, or suspended by court ruling or moratorium.
Source: Death Penalty Information Center
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Death sentences nationwide
Graphic shows the number of death sentences issued from 1977 to 2005.
Source: U.S. Bureau of Justice Statistics, Death Penalty Information Center.

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