Proposal said to make Georgia death statute vulnerable to attack

By: Bill Rankin
The Atlanta Journal-Constitution
Monday, April 19, 2010

Legislation moving through the General Assembly that would strip a key safeguard from Georgia’s death-penalty law could make the statute vulnerable to constitutional attack.

Last week, the Senate Judiciary Committee voted to remove the so-called “proportionality review” from state law. The review, conducted by the Georgia Supreme Court in every death-penalty appeal, is intended to guard against the possibility of a capital sentence being arbitrarily imposed.

If the Legislature removes the review from Georgia law, there will be multiple challenges that seek to declare the state’s capital punishment law unconstitutional, predicted Jerry Word, interim head of the state's capital defender office. "It's my belief it puts the constitutionality of the statute in serious jeopardy," he said.

Brian Kammer, executive director of the Georgia Appellate Practice and Educational Resource Center, which handles death-row appeals, agreed.

“The review was a bulwark against arbitrary and random infliction of the death penalty,” Kammer said. “The U.S. Supreme Court relied on this provision when affirming the constitutionality of the death penalty in 1976.”

Senate Judiciary Committee Chairman Seth Harp (R-Midland), who supports removing the requirement, said he believes the state Supreme Court would continue to conduct the review even if it is no longer required under Georgia law.

“I don’t think any death penalty could be effectively completed with an execution without a proportionality review,” he said. “The fact that we had it in the statute is redundant.”

State Rep. Wendell Willard (R-Sandy Springs) said he introduced the measure because it was his understanding that Georgia is the only state in the country that requires a proportionality review by law. He said appellate courts must still decide whether a death sentence was disproportionately imposed if the requirement is removed from Georgia law.

As regards to the possibility the legislation could make the state's death-penalty law vulnerable to attack, Willard said: "Of course, I'd be concerned. I will want to make sure this does not lead to death cases getting reversed." Willard said he will look at the proposal again if the provision passes the Senate.

The move to strip the court of its obligation to conduct the review was attached to House Bill 323, an uncontroversial piece of legislation sponsored by House Speaker David Ralston (R-Blue Ridge) that would give the state Supreme Court more time to consider pretrial appeals in death-penalty cases.

On Monday, Ralston said through a spokesman that he would not agree to removing the proportionality review from state law. The speaker “feels that this change greatly jeopardizes the future of this legislation because it weakens the constitutionality of Georgia’s laws,” Ralston spokesman Marshall Guest said.

For HB 323 to become law in its current form, it must still pass the full Senate and the House and be signed by Gov. Sonny Perdue.

Proportionality reviews were made part of the state’s death-penalty law in 1973, a year after the U.S. Supreme Court, in the landmark case Furman v. Georgia, declared capital punishment unconstitutional on grounds it violated the Eighth Amendment's guarantee against cruel and unusual punishment.

State lawmakers enacted a system of checks and balances to ensure the new law would not be vulnerable to attack. These included the proportionality review and making the death penalty a possibility only if a killing involved at least one of 10 aggravating factors, such as committing a murder during an armed robbery, killing a police officer and committing multiple murders.

In 1976, the U.S. Supreme Court upheld the new law. Writing for the court’s majority, Justice Potter Stewart took comfort that Georgia’s law included the proportionality review, which he said “substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury.”

Even so, the Georgia Supreme Court’s proportionality review has been criticized for being flawed and cursory. In its review, the court, when upholding a death sentence on appeal, cites a dozen or so death sentences previously imposed in similar cases to show that the sentence before them was not excessive or disproportionate.

In a series published in 2007, The Atlanta Journal-Constitution found that, in its reviews, the court was citing capital cases that had been overturned on appeal. Since that series, the state Supreme Court has not cited an overturned case in a proportionality review when upholding a death sentence. The court has not reversed a death sentence on proportionality grounds since 1981.

In October 2008, U.S. Supreme Court Justice John Paul Stevens strongly criticized the court’s proportionality review, calling it “utterly perfunctory” because the court typically only compares a death sentence with other similar death sentences, not with similar murder cases that resulted in life sentences.

“The Georgia Supreme Court ... must take seriously its obligation,” wrote Stevens, who was not joined by another justice. The likely result, he said, “is the arbitrary or discriminatory imposition of the death penalty.”

Justice Clarence Thomas disagreed, noting that the high court had repeatedly upheld Georgia's way of conducting its review. Stevens' accusations, Thomas wrote, were "entirely without foundation." Thomas also contended proportionality reviews are not constitutionally required, citing a 1984 U.S. Supreme Court ruling that said California's death-penalty law, which did not require such a review, was not constitutionally required to have one.

Like Stevens, Thomas was not joined by another justice. Both justices used the opportunity to give their thoughts on Georgia's review in the court's rejection of an appeal brought by a man sentenced to death for the 1999 killing of a Macon County bank executive.

Georgia and the death penalty

The Atlanta Journal-Constitution, in a series published in 2007, found that Georgia law has fallen short of ensuring a predictable and even-handed application of the death penalty. The newspaper researched the facts and circumstances behind 2,328 murder convictions obtained from 1995 through 2004 and found death sentences were being imposed arbitrarily.

The AJC also researched all the state Supreme Court's proportionality reviews of death sentences in opinions issued from 1982 to 2007. The court once compared death cases with others that received life sentences, but it stopped doing so, except on rare occasions, in the 1980s. Separately, the newspaper found that, during that same time frame, 19 percent of the death cases cited by the court to justify other death sentences had already been thrown out on appeal.