On Monday, January 30th, the American Bar Association released it's Georgia Death Penalty Assesment Report. The report examined 12 areas around the application of the death penalty and found a number of areas in need of reform. All but one member of the Georgia Assessment Team, which authored the report, concludes that Georgia should adopt a moratorium on carrying out and seeking the death penalty until the egregious errors can be addressed.
Highlights of the report are below. The full report can be obtained for free at http://www.abanet.org/moratorium/assessmentproject/georgia.html
Two-page fact sheet about the report
Also, there has been extensive coverage of the release of this report in Georgia news outlets:
Atlanta Journal Constitution
http://www.ajc.com/metro/content/metro/stories/0129deathpenalty.html
Macon Telegraph
(The Telegraph has endorsed the call for a moratorium)
http://www.macon.com/mld/macon/news/local/crime_courts/13744539.htm
Columbus Ledger-Enquirer
http://www.ledger-enquirer.com/mld/ledgerenquirer/13742929.htm
Augusta Chronicle
http://chronicle.augusta.com/stories/013006/met_6383453.shtmlhttp://chronicle.augusta.com/stories/013006/met_6383453.shtml
-Inadequate Defense Counsel at Trial - Although the State of Georgia has recently instituted a statewide capital defender system, which provides experienced attorneys for indigent defendants in capital proceedings at trial and on direct appeal, it is unclear whether funding will be available to enable it to function as planned. Moreover, it must be noted that the trials and direct appeals of defendants presently on death row preceded the creation of the statewide capital defender system; those defendants may or may not have had adequate counsel.
-Lack of Defense Counsel for State Habeas Corpus Proceedings - The State of Georgia is virtually alone in not providing indigent defendants sentenced to death with counsel for state habeas proceedings. The lack of counsel on state habeas, particularly when combined with the case law that allows habeas judges to adopt the state’s findings of fact verbatim, creates a situation where this critical constitutional safeguard is so undermined as to be ineffective.
-Inadequate Proportionality Review - In conducting its proportionality review, since 1994 the Georgia Supreme Court has looked only to cases where the death penalty was imposed under similar circumstances, rather than also considering cases in which the death penalty was sought but not imposed and cases in which the death penalty could have been sought but was not. Proportionality review that considers only cases where the death sentence was imposed is inherently limited and incapable of uncovering potentially serious disparities—whether those disparities are geographical, racial or ethnic, or attributable to any other inappropriate factor.
-Inadequate Pattern Jury Instructions on Mitigation - Research establishes that not all Georgia capital jurors understand what law governs their decision to impose or not impose a death sentence. Forty percent (specifically 40.5%) of interviewed Georgia capital jurors did not understand that they could consider any evidence in mitigation and 62.2% believed that the defense had to prove mitigating factors beyond a reasonable doubt. This confusion possibly can be attributed to the fact that the suggested pattern jury instructions provide little to no guidance on mitigating circumstances. The instructions do not list any factors that might be considered in mitigation, explain the burden of proof, or explain that jurors need not be unanimous in finding mitigating circumstances. Death sentences resulting from juror confusion or mistake are not tolerable.
-Racial Disparities in Georgia Capital Sentencing - Both the race of the defendant and the race of the victim predict who is sentenced to death in the State of Georgia, with white suspects and those who kill white victims more likely to be sentenced to death than black suspects and those who kill black victims. “The data show that among all homicides with known suspects, those suspected of killing whites are 4.56 times as likely to be sentenced to death as those who are suspected of killing blacks.” Based on this data, race clearly matters in capital sentencing in Georgia.
-Inappropriate Burden of Proof for Mentally Retarded Defendants Facing the Death Penalty - “Beyond a reasonable doubt” is the highest standard of proof known to American law. Of the twenty-six states that have adopted statutes prohibiting the execution of the mentally retarded, Georgia is the only state that requires the defendant to prove his/her mental retardation beyond a reasonable doubt. The effect of this is exacerbated by the failure of the Georgia Suggested Pattern Jury Instructions to explain that mental retardation is a mitigating circumstance that may be considered by the jury during the sentencing phase of a capital trial.
-Death Penalty for Felony Murder - Georgia law allows for the imposition of a death sentence when the defendant has been convicted either of malice murder or of felony murder. Malice murders are those murders committed with express malice (intent to kill) or implied malice (an abandoned and malignant heart/a reckless disregard for human life). Felony murder is a killing in the commission of a felony irrespective of malice; a conviction of felony murder does not require a finding of an intent to kill, or of a reckless indifference to life. The death penalty should only be imposed where the jury has found the defendant acted with either express or implied malice.
1) The State of Georgia should sponsor a study of the administration of its death penalty system to determine the existence or non-existence of unacceptable disparities, racial, geographic, or otherwise.
2) In order to make the concept of proportionality meaningful and to address the racial disparities indicated by the available data, the State of Georgia should establish a statewide clearinghouse to review decisions to seek the death penalty. This clearinghouse should also collect data on all death-eligible cases and make this data available to the Georgia Supreme Court for use in conducting its proportionality review.
3) The State of Georgia should restrict death penalty cases to those where the defendant is found guilty of malice murder, either express or implied.
Despite the best efforts of a multitude of principled and thoughtful actors who play roles in the criminal justice process in the State of Georgia, our research establishes that at this point in time, the State cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed. Because of that, it is the conclusion of the members of the Georgia Death Penalty Assessment Team, except Harry D. Dixon, Jr., that the State of Georgia should impose a moratorium on both capital prosecutions and on executions until such time as the State is able to appropriately address the problem areas identified throughout this Report, and in particular in the Executive Summary. Although Mr. Dixon agrees with a number of the findings and the recommendations of the report, he does not agree that a moratorium should be imposed on either prosecutions or executions.