Cover Story: A short history of Georgia’s death penalty

Over the course of his 34-year career, criminal defense attorney Michael Mears has counseled or stood in court next to 167 men and women faced with the death penalty as punishment for their crimes. In that time, he has watched the state-sponsored killings get temporarily halted and the method of killing changed. As more and more states across the country have placed a moratorium on or abolished capital punishment, Georgia has clung to the practice despite its brutality and inequities in how it’s doled out.

“It’s been a love affair with prosecutors, legislators, and everyone with this thing called the death penalty,” says Mears, a John Marshall School of Law professor. “The seeking of the death penalty and the imposition of the death penalty has been used by prosecutors and politicians over and over again to lull the public into some sense that they’ve been protected from violent crimes. It’s like a placebo the doctor gives you.”

The affair began in Georgia, so far as records show, with the 1735 hanging in Savannah’s Wright Square of Alice Riley, a white woman and indentured servant executed for murdering her master. The act was repeated an estimated 500 times until 1924, when the Legislature voted to outlaw it in favor of the electric chair, morbidly nicknamed “Old Sparky,” at the Georgia State Prison Farm near Milledgeville. The chair was moved to Reidsville on Jan. 1, 1938. Corrections officials set a record on Dec. 9, 1938, by executing six men within 81 minutes of each other. The chair was kept busy — an average of a dozen people were executed every year between the end of the Great Depression and the mid-1950s.

In 1980, Georgia’s death row was moved to Jackson, and a new chair was built. That device could be dysfunctional. Larry Lochner, who was sentenced to death for murdering three people over a gambling debt, reportedly had to be given two bursts of electricity when he was killed in 1996. In 2000, the General Assembly made lethal injection the legal method of execution in the event that the electric chair was declared cruel and unusual punishment, which happened in October 2001. Georgia’s first lethal injection took place the same month.

Georgia earns a special place in death penalty history books as the battleground for some key legal cases. Chief among them was Furman v. Georgia, the 1972 Supreme Court case that struck down more than 40 states’ death penalty laws, including Georgia’s. True to form, the Georgia General Assembly drew up a new statute the next legislative session that was quickly signed into law — “without ceremony,” according to Mears’ book The Death Penalty in Georgia: A Modern History, 1970-2000 — by then-Gov. Jimmy Carter.

In the years since, some attempts have been made to amend the legislation, including lowering the age of eligibility to 16. In the mid-1990s, then-state Rep. Doug Teper, D-Decatur, even proposed legislation allowing the state to use the guillotine, thinking it would make organ donations by the executed easier. More recently, some state lawmakers have argued for greasing the path to the death chamber with moves to permit non-unanimous juries or add gang membership to the list of aggravating circumstances.

“Every time Georgia executes someone it’s an embarrassment,” says Stephen Bright, president of the Southern Center for Human Rights.

While European countries and other states such as Colorado and Washington have moved to stop executing people, Georgia and 26 other states remain in the dark ages with Saudi Arabia, Iraq, and Iran. The pending execution of Warren Lee Hill has thrust the state’s death penalty into a legal limbo. It has also shone a spotlight on the absurdity of the state’s high burden of proof to show, what it calls, “mental retardation.” It’s also driven some lawmakers to try and shield the process in secrecy so that the state may have access to controversial drugs used in lethal injections. The execution of Troy Davis, the Georgia death row inmate who pleaded for a new trial after multiple witnesses in his case recanted their stories, attracted worldwide headlines, vigils, and pleas for clemency from Pope Benedict and Bishop Desmond Tutu.

Georgia’s death penalty disproportionately affects minorities. In McCleskey v. Kemp, another landmark Georgia case that was argued by the U.S. Supreme Court in 1986, the defendant’s lawyers studied Georgia death penalty cases and found that prosecutors in homicide cases involving black defendants and white victims sought the state’s death penalty 70 percent of the time, compared to 19 percent with black victims and white defendants. Today more than 47 percent of the 89 men on death row in Georgia are black. But according to the state’s 2009 analysis of executions dating back to the 1930s, 75 percent of the prisoners put to death during that time were black.

Nearly every year, it seems, a state lawmaker proposes legislation that would repeal the death penalty. State Rep. Tyrone Brooks, D-Atlanta, has sponsored a bill this year. It’s rare that the bills muster more than a committee hearing. If anything, attempts to modify the statute tend to receive pushback from some Georgia district attorneys and tough-on-crime politicians. Some capital punishment critics, including Mears and Bright, don’t think Georgia’s death penalty will be abolished any time soon. Before that happens, Mears says, it will “die of old age.” Prosecutors may stop seeking the death penalty because the trials and subsequent appeals can go on indefinitely and leave victims’ families without a sense of justice. As views evolve, juries may just cease sending people to the death chamber. In addition, the death penalty is costly. The state does not keep statistics on the cost of housing a death row inmate, but the average inmate costs taxpayers more than $18,500 per year. When one estimates the length of death sentences combined with the costly appeals process, it adds up to more than life in prison, critics argue.

Across the country, Bright says, fewer people are being sentenced to death. That applies to Georgia as well. The number of executions in Georgia has also declined: Zero executions were conducted in 2012. One person was put to death in 2013 before Hill’s challenge effectively halted the process. Bright attributes the decline to several factors, including better representation of defendants. The Georgia Public Defender Standards Council’s team of lawyers and investigators, operating with little funding, has challenged the judicial system and prevented the death penalty from being doled out. The number of men and women who have been exonerated over the years, both in Georgia and elsewhere in the U.S., have reminded potential jurors that mistakes happen in trials.

A law that allows prosecutors to consider life without parole rather than the death penalty has also given district attorneys more options. And, Mears says, many people, including prosecutors, are starting to understand that the death penalty has not been proven to deter crime. According to the Death Penalty Information Center, states with the death penalty have consistently higher murder rates than states without it.

“I’ve never, out of 167 cases, had a client tell me, ‘If I had known this would get me the death penalty I never would have done this,’” Mears says.