Legislation moving through the General Assembly that would strip a key safeguard from Georgia’s death-penalty law could make the statute vulnerable to constitutional attack.
Last week, the Senate Judiciary Committee voted to remove the so-called “proportionality review” from state law. The review, conducted by the Georgia Supreme Court in every death-penalty appeal, is intended to guard against the possibility of a capital sentence being arbitrarily imposed.
If the Legislature removes the review from Georgia law, there will be multiple challenges that seek to declare the state’s capital punishment law unconstitutional, predicted Jerry Word, interim head of the state's capital defender office. "It's my belief it puts the constitutionality of the statute in serious jeopardy," he said.
Brian Kammer, executive director of the Georgia Appellate Practice and Educational Resource Center, which handles death-row appeals, agreed.
“The review was a bulwark against arbitrary and random infliction of the death penalty,” Kammer said. “The U.S. Supreme Court relied on this provision when affirming the constitutionality of the death penalty in 1976.”
Senate Judiciary Committee Chairman Seth Harp (R-Midland), who supports removing the requirement, said he believes the state Supreme Court would continue to conduct the review even if it is no longer required under Georgia law.
“I don’t think any death penalty could be effectively completed with an execution without a proportionality review,” he said. “The fact that we had it in the statute is redundant.”
And:
The move to strip the court of its obligation to conduct the review was attached to House Bill 323, an uncontroversial piece of legislation sponsored by House Speaker David Ralston (R-Blue Ridge) that would give the state Supreme Court more time to consider pretrial appeals in death-penalty cases.
On Monday, Ralston said through a spokesman that he would not agree to removing the proportionality review from state law. The speaker “feels that this change greatly jeopardizes the future of this legislation because it weakens the constitutionality of Georgia’s laws,” Ralston spokesman Marshall Guest said.
For HB 323 to become law in its current form, it must still pass the full Senate and the House and be signed by Gov. Sonny Perdue.
Proportionality reviews were made part of the state’s death-penalty law in 1973, a year after the U.S. Supreme Court, in the landmark case Furman v. Georgia, declared capital punishment unconstitutional on grounds it violated the Eighth Amendment's guarantee against cruel and unusual punishment.
Also:
In a series published in 2007, The Atlanta Journal-Constitution found that, in its reviews, the court was citing capital cases that had been overturned on appeal. Since that series, the state Supreme Court has not cited an overturned case in a proportionality review when upholding a death sentence. The court has not reversed a death sentence on proportionality grounds since 1981.
In October 2008, U.S. Supreme Court Justice John Paul Stevens strongly criticized the court’s proportionality review, calling it “utterly perfunctory” because the court typically only compares a death sentence with other similar death sentences, not with similar murder cases that resulted in life sentences.
More on Georgia's proportionality review begins with this post.
Earlier coverage of the Georgia legislation is here; related articles are in the proportionality category index.
Comments