A third way for fixing Georgia's death penalty 

To legal mavens and armchair jurists alike, the November verdict in the Brian Nichols trial offered stunning evidence that the death penalty in Georgia is broken.

If a remorseless, mad-dog killer like Nichols is able to escape death row – after boastfully confessing to a day-long murder-and-car-jacking spree – then how can the state rationalize the planned execution of men whose decades-old convictions rest on circumstantial evidence and recanted testimony?

Anne Emanuel, for one, believes it can't.

"The death penalty is justifiable for certain crimes, but in Georgia we've got huge inequities," says Emanuel, a criminal law professor at Georgia State University who chaired an American Bar Association committee that spent two years studying the death penalty in Georgia.

That committee's 2006 report recommended that the state suspend executions until it could repair cracks in the legal system to ensure that capital punishment is being applied fairly. A subsequent two-year investigation by the Atlanta Journal-Constitution determined that, over the previous decade, the process that produces death sentences in Georgia is largely arbitrary – often resulting in wildly different punishments for similar crimes.

"Getting the death penalty in Georgia is as predictable as a lightning strike," the newspaper concluded.

Emanuel believes the recent Nichols verdict and the never-ending appeals of longtime death row inmate Troy Davis – whose innocence claims and evidence of faulty eyewitness accounts have attracted international attention – serve to underscore the need to halt executions while the state determines how to salvage the legal integrity of its death penalty.

There is, however, one major drawback with this approach: It ain't gonna happen.

This is Georgia, after all. We led the country in executions until the 1960s. When the U.S. Supreme Court declared capital punishment unconstitutional for part of the early '70s, it was because the death penalty in Georgia was proven to be a crapshoot – with the odds stacked against anyone who killed a white man.

While other states recently have suspended or even repealed their death penalty laws – including Illinois, Kansas and New York – some Georgia pols are determined to double down in the condemnation game. The death penalty process is indeed flawed, they argue, and the way to fix it is to lower the standards for sentencing a killer to death.

"The Brian Nichols verdict has brought to public view the problem of jurors not telling the truth when they say they'd be willing to impose the death penalty," explains Barry Fleming, the former Republican state representative who first introduced a bill in 2006 to allow a judge to send convicted murderers to death row even if the jury does not unanimously vote for death, as the law now requires.

Fleming's original bill would have allowed a simple majority of jurors to dole out a death sentence. The version that passed the House last year – but failed in the Senate – would have set the jury hurdle at 10-2.

That last measure already has been revived as a pre-filed bill in 2009, but Fleming is certain other lawmakers will up the ante by pushing to allow a death sentence despite three jury holdouts, as was the case in the Nichols meltdown. "I think the Nichols verdict could influence the number that's proposed," says Fleming, who, as the newly appointed legal counsel to Speaker Glenn Richardson, is expected to wield considerable influence over House legislation.

But doing away with the death penalty or greasing the path to death row aren't lawmakers' only options for addressing the obvious inequities in Georgia's legal system. GOP state Sen. Preston Smith has reintroduced a bill he penned last year that would allow a district attorney to seek life without parole against murderers. "It ought to be an available sentence," he says, "because it's more appropriate in some cases."

Current law requires prosecutors to choose between pursuing life with the possibility of parole – which can be granted after 25 years – or death. Should a jury disapprove of a death sentence, then life without parole becomes an option. Life without parole is also mandatory in Georgia if a defendant is convicted a second time of one of the "seven deadly sins."

Smith's bill, which passed the Senate last year but stalled in the House, isn't directly influenced by Nichols' case. For starters, there's likely not a DA in Georgia who wouldn't have sought the death penalty. But the courthouse killer's prosecution showed just how expensive and uncertain capital cases can be.

Giving prosecutors the option to seek – and plea-bargain for – life without parole will probably result in huge cost savings for Georgia because DAs will feel less compelled to try capital cases they aren't certain of winning, Smith says.

Still, the bill is a double-edged sword, he acknowledged. Some DAs could feel political pressure to seek life without parole against defendants they might otherwise have offered a chance for parole. But, as Georgia amply demonstrates, no system is perfect.

Richard Dieter, executive director of the Death Penalty Information Center, a research group based in Washington, D.C., says the prevailing winds in criminal justice are blowing against the death penalty. Among the 36 states that have capital punishment, the overwhelming majority requires a unanimous jury to impose a death sentence. Influenced by tales of death row exonerations, juries nationwide have become less likely to apply the death penalty. And several states – including North Carolina – have opted to allow prosecutors to seek life without parole.

"In virtually every state, the number of death sentences is dropping," Dieter says. "Life without parole is becoming the go-to option."

Even if Georgia lowers the jury standards for death sentences, he says, the experience of Florida and other states suggests Georgia would need to spend money defending the law against constitutional challenges, and could even see an increase in overturned sentences. In a budget-challenged future, Dieter says, many states have decided that – whatever one's ideology – the death penalty has become too costly.

"The case of Troy Davis is symbolic of the problem," he says. "Even if you do it carefully and with due process, it's very expensive to put someone to death."

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