Evaluating the Constitutionality of Proposals to Allow Non-unanimous Juries to Impose the Death Penalty in Georgia

• Publication year: 2010

Georgia State University Law Review

Volume 26 j 5

Issue 3 Spring 2010

3-21-2012

Evaluating the Constitutionality of Proposals to Allow Non-Unanimous Juries to Impose the Death Penalty in Georgia

Lisa Caucci

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Caucci, Lisa (2009) "Evaluating the Constitutionality of Proposals to Allow Non-Unanimous Juries to Impose the Death Penalty in Georgia," Georgia State University Law Review: Vol. 26: Iss. 3, Article 5. Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss3/5

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EVALUATING THE CONSTITUTIONALITY OF PROPOSALS TO ALLOW NON-UNANIMOUS JURIES TO IMPOSE THE DEATH PENALTY IN

GEORGIA

Lisa Caucci*

Introduction

With recent attempts by the Georgia General Assembly to pass legislation allowing non-unanimous juries to impose the death penalty, Georgia may once again figure prominently in the debate over American capital punishment standards.¹ Legislation removing the unanimity requirement for capital punishment would trigger a constitutional challenge and inevitable Supreme Court review.² This Note examines the proposed legislation in light of controlling Supreme Court opinions to predict the Court's ruling on the constitutionality of allowing death sentences to be imposed by non-unanimous juries. Part I traces the development of Georgia's current death penalty laws. Part II describes recent attempts to amend Georgia's death penalty provisions to allow non-unanimous juries to sentence defendants to death.⁴ Part III discusses arguments for shifting away from the traditional emphasis on unanimity in jury decisions.⁵ Part IV examines Supreme Court decisions regarding the unanimity requirement in criminal cases.⁶ Part V looks at the constitutionality of allowing judges to make final determinations of sentencing, including imposing the death penalty.⁷ Part VI examines the Supreme Court's limits on the authority of judges to increase

' J.D. 2010, Georgia State University College of Law.

1. See discussion infra Parts I, II.

2. Sara E. Deskins & Nancy E. Rhinehart, Review of Selected 2007 Georgia Legislation: Criminal Procedure, 24 Ga. St. U. L. Rev. 61, 75 (2007) (citing E-mail Interview with Anne Emanuel, Professor of Law, Ga. State Univ. Coll. of Law (May 9,2007)).

3. See discussion infra Part I.

4. See discussion infra Part n.

5. See discussion infra Part HI.

6. See discussion infra Part IV.

7. See discussion infra Part V.

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defendants' sentences.⁸ Finally, Part VII concludes that an amendment to Georgia law permitting judges to impose the death penalty despite a non-unanimous jury sentencing decision will likely survive a Supreme Court challenge.⁹

I. The Development of Georgia's Current Death Penalty Law

The state of Georgia has played a controversial role in the history of American capital punishment jurisprudence.¹⁰ The Supreme Court's 1972 ruling in a Georgia death penalty case, Furman v. Georgia*¹ that the Eighth Amendment required the protection of capital defendants from "arbitrary and capricious" death penalty sentencing, led to a four-year moratorium on executions in America.¹² Thirty-five states subsequently amended their death penalty statutes to remedy the problems found by the Supreme Court in Furman. In 1976, while reviewing a later Georgia case, Gregg v. Georgia,¹⁴ the Supreme Court affirmed a death sentence pursuant to a post-Furman statute.¹⁵

8. See discussion infra Part VI.

9. See discussion infra Part VII.

10. In 1988, Georgia became the first state in the nation to pass legislation banning the execution of the mentally impaired. See Georgia to Bar Executions of Retarded Killers, N.Y. Times, Apr. 12, 1988, at A26. But more recently the American Bar Association issued the findings of the Georgia Death Penalty Assessment Team urging a moratorium on executions in the state of Georgia until the state addressed multiple "problem areas." See American Bar Association, Evaluating Fairness and Accuracy in State Death penalty Systems: The Georgia Death Penalty Assessment Report iii-v (2006) (citing as the areas most needing reform: inadequate defense counsel at trial; lack of defense counsel for state habeas corpus proceedings; inadequate proportionality review; inadequate pattern jury instructions on mitigation; racial disparities in Georgia capital sentencing; inappropriate burden of proof for mentally retarded defendants facing the death penalty; and allowing the death penalty for felony murder).

11. Furman v. Georgia, 408 U.S. 238 (1972).

12. Laurie B. Berberich, Note, Jury Instructions Regarding Deadlock in Capital Sentencing, 29 hofstra L. Rev. 1301,1303 (2001).

13. Id. at 1304.

14. Gregg v. Georgia, 428 U.S. 153 (1976). Along with Gregg, the court considered four other cases: Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976).

15. See discussion infra Part I.C.

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A. Furman v. Georgia

In its 1972 review of Furman,¹⁶ the Supreme Court for all practical purposes found every capital punishment statute in the United States unconstitutional.¹⁷ The Court split 5-4, with each of the Justices in the majority writing a separate concurrence.¹⁸ Although there is no controlling opinion from the case, the Justices in the majority emphasized that the Eighth Amendment's prohibition of "cruel and unusual punishment" demanded proportionality in sentencing and prohibited the arbitrary imposition of the death penalty allowed by state statutes.¹⁹

B. Gregg v. Georgia

Following Furman, state legislatures struggled to enact new death penalty schemes that would comport with the Court's holding that states must protect capital defendants from the arbitrary imposition of the death penalty.²⁰ In Gregg v. Georgia, the Court held that Georgia's new death penalty statute adequately addressed the constitutional deficiencies cited in Furman.²¹ Georgia's new death penalty scheme included a bifurcated system, which separated the guilt phase from the sentencing portions of the trial.²² Georgia also mandated that the jury find proof of at least one statutory aggravating circumstance for a murder defendant to be eligible for the death

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penalty. Finally, Georgia statute provided for automatic review of all death sentences by the Georgia Supreme Court.²⁴

16. Furman, 408 U.S. at 238.

17. James S. Liebman, Slow Dancing with Death: The Supreme Court and Capital Punishment, 107 colum. L. Rev. 1,1 (2007).

18. Furman, 408 U.S. at 240,257,306,310, 314.

19. Kyron Huigens, Rethinking the Penalty Phase, 32 ARIZ. ST. L.J. 1195, 1200(2000).

20. Berberich, supra note 12, at 1304.

21. Gregg, 428 U.S. at 207.

22. Huigens, supra note 19, at 1201 (citing Gregg, 428 U.S. at 196-207).

23. Id.

24. Id.

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C. Current Georgia Death Penalty Procedure

Current Georgia law requires a jury to unanimously find the existence of at least one aggravating circumstance for a defendant to be eligible for the death penalty.²⁵ Once a jury finds the existence of an aggravating circumstance, it must then agree unanimously to impose the death penalty on the defendant. If the jury is unable to come to a unanimous decision to impose a death sentence, the judge must then sentence the defendant to either life in prison or life without parole.²⁷

II. Proposed Changes to Georgia's Death Penalty Procedure

Each of the two most recent sessions of the Georgia General Assembly saw the introduction of legislation that would have allowed non-unanimous juries to impose the death penalty on a defendant convicted of a capital crime. The proposals ultimately failed, but given the strong sentiments of their supporters,²⁹ similar proposals are likely to be introduced in upcoming sessions.

A. House Bill 185

In January 2007, House Majority Whip Barry Fleming introduced House Bill 185.³⁰ The bill proposed allowing judges to impose a

25. Ga. Code Ann. § 17-10-31 (2008). ("Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed.")- For a complete list of statutory aggravating circumstances, see id. § 17-10-30(a). But see David McCord, An Open Letter to Governor George Ryan Concerning How to Fix the Death Penalty System, 32 loy. U. CHI. l.J. 451, 453 (2001) (arguing that "[aggravating factors in every jurisdiction are over-inclusive," making defendants guilty of less egregious crimes eligible for the death penalty, thus undermining the equality in sentencing mandated by Furman).

26. Ga. Code Ann. § 17-10-31(c) (2009) ("If the jury is unable to reach a unanimous verdict as to sentence, the judge shall dismiss the jury and shall impose a sentence of either life imprisonment or imprisonment for life without parole.").

27. Id.

28. Ben Smith & Bill Rankin, 10, Not 12, Jurors Would Decide Death Under Bill, atlanta J.-Const., Mar. 20,2008, at ID.

29. See discussion infra Part n. A.

30. Carlos Campos, Bill: 9 Jurors to Give Death, atlanta J.-Const., Jan. 30, 2007, at 1A; H.B. 185, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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death sentence on defendants when jurors could not reach a unanimous sentencing verdict.³¹ Fleming acknowledged that the failure of juries to give death sentences to convicted killers Wesley Harris³² and William Kenny Stephens³³ influenced his support of the...