America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Georgia executions rise, while death sentences plummet

Georgia's death chamber
Georgia's death chamber
It's Georgia's new death penalty paradox: the state is executing inmates at a record clip, but prosecutors almost never seek the death penalty anymore, and juries refuse to impose it when they do.

During each of the past 2 years, Georgia executed 5 inmates. If, as expected, the state carries out another execution later this year, it will have put more people to death - 6 - in 2016 than in any single year since the U.S. Supreme Court reinstated capital punishment 4 decades ago.

But the last time a Georgia jury imposed a death sentence was in March 2014. And district attorneys have been turning away from death as a sentencing option, more often allowing killers to receive sentences of life in prison without the possibility of parole.

A decade ago, state prosecutors filed notices of intent to seek the death penalty against 34 accused killers. That number dropped to 26 in 2011 and to 13 last year.

How many times have Georgia DAs sought the death penalty so far this year? Once. And this was against a man accused of killing a priest - a clergyman who had signed a document saying if he died a violent death he did not want his killer to face the death penalty.

The incongruity of the increasing numbers of executions and the plummeting numbers of death sentences took both prosecutors and defense attorneys by surprise.

"Wow," Atlanta criminal defense attorney Akil Secret said. "Maybe the times are changing."

The precipitous declines raise the question of whether prior capital sentences were justified, Secret said. "If a life-without-parole sentence is sufficient for today's worst crimes, why isn't it sufficient for those crimes from the past where death was imposed?"

In March, Secret represented 1 of the only 2 defendants to face death-penalty trials in Georgia this year. In both cases, juries in Fulton and Newton counties unanimously voted for sentences of life without parole.

Gwinnett County District Attorney Danny Porter also expressed surprise at the ongoing trends.

"It's certainly one of those odd occurrences," said Porter, who has three pending capital cases. "But part of me says these (current) executions were cases where the sentences should have been carried out long ago. Also, the option of life without parole was never an option for them. It's almost apples and oranges."

Asked whether he thought cases that received death sentences in the past should now be reconsidered for life without parole, Porter quoted a passage from the "Dune" science fiction series, "If wishes were fishes, we'd all cast nets."

Is the death penalty no longer necessary?

Brian Kammer, head of a nonprofit agency that represents condemned killers through their final appeals, said many inmates would not have been sent to death row had they been represented by competent lawyers. Today, he said, the state has a dedicated office with highly trained public defenders with the resources to thoroughly investigate their clients' backgrounds.

"Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today," Kammer said.

In 1972, the U.S. Supreme Court used a Georgia case to abolish capital punishment. In 1976, in another Georgia case, the high court reinstated the death penalty. Since that ruling, Georgia has executed 65 condemned killers. There are now 63 inmates on death row.

There is a consensus among state prosecutors and defense attorneys as to why the death penalty is not being sought as frequently as it was in the past and why juries are reluctant to impose it. 7 years ago, state lawmakers unanimously voted to allow prosecutors to obtain a life-without-parole sentence without having to file a notice to seek the death penalty.

"It has made an enormous difference," said Chuck Spahos, head of the Prosecuting Attorneys' Council of Georgia. "When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims' families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option."

Years ago, some state prosecutors sought the death penalty because all they really wanted to do was send a defendant to prison for the rest of his or her life, said Jerry Word, head of Georgia's Capital Defender Office. "Now they no longer have to seek death to get what they really want. And the polls show that the public is becoming much more comfortable with life without parole."

'We've lost our sense of outrage'

Doug Pullen, who made a name for himself obtaining death sentences as a Columbus district attorney in the early 1990s, said he believes society has become desensitized to violence.

"We've lost our sense of outrage at such things," said Pullen, who later served as a judge until he resigned amid an ethics probe. "For me personally, and I think for a large portion of my age group, it's just absolutely appalling."

A defense attorney once told him that the death penalty would become so expensive and time-consuming it would die a natural death, Pullen said. "I guess I knew it was coming, but that it got here this fast kind of surprises me."

Not only are death sentences rare, death sentences once routinely imposed for certain types of murders have become nonexistent.

Lawyers representing Brandon Astor Jones tried unsuccessfully to stop his execution in February. In 1979, Jones was sentenced to death for killing the manager of a Cobb County convenience store during an armed robbery. But death sentences for these kinds of armed robbery cases have not been imposed in Georgia in the past 20 years, an appeal filed on Jones' behalf said.

Layla Zon, the district attorney for Newton and Walton counties, said after she took office in 2010 she reviewed cases in which death sentences were obtained by her predecessors more than a decade ago. "You'd never get the death penalty in most of those cases today," she said.

"To me, it seems like a gunshot killing of a single victim is not going to rise to the level in jurors' minds of what it takes to impose a death sentence," Zon said. "Torture, depravity of mind, the killing of a child. That's what it takes."

A recent motion filed on behalf of Rodney Young, sentenced to death in Newton County in 2012 for killing his ex-fiancee's son, accused Zon of being "pathologically enthralled" with the death penalty. It said she has sought death at a rate unmatched by any other district attorney in Georgia and noted she had a battery-powered toy electric chair, called "Death-Row Marv," in her office.

Zon, who said the toy was in her office when she became DA and that she has since removed it, said she seeks death in cases that warrant it. Since 2011, there have been 13 death-penalty trials in Georgia, with 4 taking place in Newton. Zon's office also obtained 2 of the state's 5 death sentences during that time.

Last month, Ashley Wright, district attorney of the Augusta Judicial Circuit, filed the first and only notice to seek death so far this year. She is seeking it against Steven James Murray, who is accused of kidnapping Catholic priest Rene Robert, forcing him into the trunk of his car and then driving him to Burke County, where he shot and killed him.

After the notice was filed, Wright said, Robert's Catholic diocese in St. Augustine, Fla., sent her a document that Robert had signed years ago. The document said that in the event he died a violent death, Robert, who had protested against executions, did not want his killer to get the death penalty no matter how heinous the crime or how much Robert had suffered.

Wright said she is proceeding with the capital prosecution.

"We make our decisions based on the facts and the law, not public opinion," she said.

Source: Atlanta Journal-Constitution, June 18, 2016

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