Several issues demonstrate that Georgia’s death penalty system is seriously flawed and demand a moratorium on executions.
In the past thirty years, Georgia has released six people from death row who were wrongfully convicted.(3) Earl Charles spent over three years on death row for a double murder in Savannah. Evidence that he was actually in Tampa, Florida at the time of the crime was concealed by a police detective, who also falsified eyewitness identifications and persuaded witnesses to lie in court.(4) Gary Nelson was similarly convicted after gross misconduct by authorities. He was released in 1991 after spending 11 years on death row. Volunteer attorneys discovered that the prosecution lied in court about the origins of a hair sample found on the victim’s body and hid lab reports from the defense. In addition, a police officer lied in court about evidence linking the murder weapon to Nelson. The Superior Court judge dismissed the case saying that there was no evidence presented by the state “which has not subsequently been determined to be impeached or contradicted.”(5)
Georgia has the sixth highest number of death row exonerations in the country.(6) Nationally, more than 100 innocent people in 25 states have been released from death row since 1973.(7) For every eight people executed, one has been released due to a wrongful conviction. DNA technology has been instrumental in proving the innocence of some, yet access to testing is expensive and not guaranteed by the state. Most importantly, an overwhelming majority of cases do not have any biological evidence to test. DNA alone cannot solve the problem.(8)
Back to top
Rather than being reserved for the “worst of the worst,” the death penalty is often given to those with the worst luck and the worst lawyers. Most death row inmates were too poor to afford their own lawyers. Access to an attorney is a constitutional right, yet the quality of defense provided to the poor is shockingly inadequate. Rarely do court-appointed attorneys have enough time or the resources needed to handle the complexities of a capital case.(9) In some instances, attorneys are not even experienced in criminal law, let alone death penalty law. In addition to these constraints, the accused are sometimes assigned incompetent lawyers or to those who show a blatant disregard for their clients. At least five men who were sentenced to death in Georgia had lawyers who referred to them in court as “niggers.”(10)
Wallace Fugate’s court-appointed lawyer was unaware of any landmark US Supreme Court death penalty cases – including the two most important, both of which involved about the state of Georgia. He never raised any objections during the trial, which lasted only two days. Fugate claimed that the murder weapon fired accidentally. This is supported by the fact that the manufacturer recalled the gun upon discovery of a dangerous design flaw. Despite the judge’s pleading that Fugate’s lawyer present ballistics evidence, he failed to do so – leaving the jury unaware of all the facts in the case. Wallace Fugate was executed on August 16, 2002.(11)
One of Georgia’s death row exonerees, Gary Nelson, was assigned a lawyer who had never tried a capital case and was denied his request for co-counsel. He was paid less than $20 per hour and did not request funds for an investigator, feeling that the request would be turned down. His closing argument was 255 words long – about one sixth the length of this fact sheet. He was later disbarred for other infractions.(12)
In Georgia, the right to a lawyer, even an incompetent one, is not guaranteed at all stages in the appeals process. Exzavious Lee Gibson, who has an IQ between 76 and 82, was forced to represent himself at his state post-conviction hearing. A clearly bewildered Gibson was unable to answer questions posed to him by the judge and kept repeating that he did not have a lawyer. His appeal was dismissed. Superior Court Judge Howard Craig said, “the judge’s dilemma is, do you just sit there and do nothing (hoping an attorney will eventually volunteer to help an inmate) or make it go forward. It’s not a very good system.”(13)
Back to top
In the 1987 US Supreme Court case, McClesky v. Kemp, Professor David Baldus and the federal government’s General Accounting Office demonstrated that race was a significant factor in the determination of death sentences in Georgia. Baldus’s research indicated that a death sentence was four times more likely when the victim was White rather than Black and that Blacks who kill Whites were 11 times more likely to receive the death penalty than Whites who kill Blacks. Despite these findings, Georgia executed Warren McClesky and has yet to institute any measures to address racial bias.(14)
Today, 90% of Georgia’s death row cases involved White victims, even though 65% of the victims in Georgia’s homicides are African American.(15) A study of the Chattahoochee Judicial Circuit from 1973 to 1990 showed that prosecutors often met with victims’ families to discuss whether to seek the death penalty when the victims were White, but they failed to meet with African American families, even though the majority of homicides in that region involved African American victims.(16)
Back to top
The district attorney in each county has sole discretion over when to pursue a death sentence. This means that where a crime is committed can be as significant as what type of crime is committed in determining who lives and who dies. For example, in the metro-Atlanta area, a person is more likely to be sentenced to death if the murder occurs in a suburban county, such as Cobb or Douglas, rather than in the urban counties of DeKalb and Fulton. This means that someone who commits a murder on Paces Ferry Road in Cobb County is much more likely to get the death penalty than if they were on the same road just across the Chattahoochee River in Fulton County.(17)
While Floyd and Clarke Counties have similar murder rates and population sizes, Floyd County has four people on death row and Clarke County has none.(18) And although Baldwin County has an average of two murders per year, it has five people on death row compared with Fulton County, which has four people on death row despite an average of 230 murders per year.(19)
Back to top
The death penalty does not exclude those with severe mental illness. Alexander Williams, for example, came within hours of execution with no court striking down his sentence. As a child, he believed light bulbs spoke to him. While on death row, he would crawl around the prison floor to talk to imaginary frogs and he believed that insects replaced his eye with a shell.(20) Under the pressure of an intense international clemency campaign and faced with the likelihood that prison officials would have had to medicate Williams in order to declare him sane enough to execute, the state Board of Pardons and Paroles commuted his sentence to life without parole.(21)
Daniel Colwell shot two people in a shopping center parking lot because he wanted to be executed and knew that killing two white people would likely result in a death sentence.(22) This is clearly not the behavior of a rational person. Like Williams, Colwell’s mental illness was detected before the commission of his crime, yet it was not properly addressed. The state mental institution in Milledgeville is the highest security facility in Georgia – surely a more suitable place for a person so out of touch with reality.
Back to top
A Columbia University study of the death penalty demonstrates that Georgia reverses 80% of its death sentences due to serious errors. According to Professor James Liebman, author of the study, “three-quarters of reversals are for egregiously incompetent lawyers, prosecutorial suppression of evidence of innocence or mitigation, and judges giving faulty jury instruction.”(23) Such reversals inflate the costs of capital punishment, which is already more expensive than imprisoning someone for life without parole. Victims’ families are also forced to re-live their pain over and over again.
Back to top
(3), (6), (7) Death Penalty Information Center. http://www.deathpenaltyinfo.org/innoc.html Accessed Dec. 17, 2002.
(4), (5) Hodson, Sandy. “Innocent on Death Row.” Augusta Chronicle. http://augustachronicle.com/stories/092297/met_deathinn.html Web posted Sept. 22, 1997.
(5) Cummings, Jeanne. “Murder Convict on Death Row Wins New Trial.” The Atlanta Journal Constitution. Jun. 26, 1991; and
Krugman, Edward. Personal Interview. Dec. 20, 2002.
(8) Schek, Barry, Peter Neufeld and Jim Dwyer. Actual Innocence:When Justice Goes Wrong and How to Make it Right. New York: Signet, 2001.
(9) Bright, Stephen B. “Counsel For The Poor: The Death Penalty Not For The Worst Crime But For The Worst Lawyer.” Yale Law Journal. Vol. 103 (1994).
(10), (16) Bright, Stephen B. “Discrimination, Death And Denial: The Tolerance Of Racial Discrimination In Infliction Of The Death Penalty.” Santa Clara Law Review. Vol. 35, No. 2 (1995).
(11) Southern Center for Human Rights. “Wallace Fugate executed by Georgia despite 2-day trial, 27-minute sentencing hearing.” http://www.schr.org/news/news_fugate.htm Accessed December 17, 2002.
(12) Bright, Stephen B. “Counsel For The Poor: The Death Penalty Not For The Worst Crime But For The Worst Lawyer.” Yale Law Journal. Vol. 103 (1994).
(13) Bright, Stephen B. “Will The Death Penalty Remain Alive In The Twenty-First Century?: International Norms, Discrimination, Arbitrariness And The Risk Of Executing The Innocent.” Wisconsin Law Review. Vol. 2001, No. 1 (2001).
(14) Bright, Stephen B. “Discrimination, Death And Denial: The Tolerance Of Racial Discrimination In Infliction Of The Death Penalty.” Santa Clara Law Review. Vol. 35, No. 2 (1995); and
Amnesty International. “Killing with Prejudice: Race and the Death Penalty in the USA.” Jan. 5, 1999.
(15) Southern Center for Human Rights. http://www.schr.org. Accessed Oct. 2001.
(17), (18) The Criminal Justice Coordinating Committee. “Crime Statistics.” http://www.ganet.org/cjcc/crimestats.html Accessed Dec. 17, 2002;
Georgia Department of Corrections. http://www.dcor.state.ga.us Accessed Dec. 17, 2002; and
Bright, Stephen B. “Will The Death Penalty Remain Alive In The Twenty-First Century?: International Norms, Discrimination, Arbitrariness And The Risk Of Executing The Innocent.” Wisconsin Law Review. Vol. 2001, No. 1 (2001).
(19) Willing, Richard. “Geography of the Death Penalty.” USA Today. Dec. 20, 1999.
(20) Amnesty International. “Abandoning Justice: The imminent execution of Alexander Williams, mentally ill child offender.” Aug. 23, 2002.
(21) “Georgia Spares Life of Condemned Mentally Ill Man.” Reuters. Web posted Feb 25, 2002.
(22) Cook, Rhonda. “Supreme Court dismisses killer’s appeal.” The Atlanta Journal Constitution. Oct. 16, 2001.
(23) Cook, Rhonda. “Georgia Death Cases Rife With Errors, Critics Say.” The Atlanta Journal Constitution. Feb. 11, 2002; and
Liebman, James, Jeffrey Fagan, Andrew Gelman, Valerie West, Garth Davies, and Alexander Kiss. “A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It.” Released Feb. 11, 2002.
Back to top