Making the Murderer's Voyeurs: the Influence of Violent Crime Exposure, Social Movements, and Desensitization on Georgia's Treatment of the Death Penalty

• Jurisdiction: Georgia,United States
• Publication year: 2021
• Citation: Vol. 72 No. 3

Making the Murderer's Voyeurs: The Influence of Violent Crime Exposure, Social Movements, and Desensitization on Georgia's Treatment of the Death Penalty

Sarah J. Foster

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Making the Murderer's Voyeurs: The Influence of Violent Crime Exposure, Social Movements, and Desensitization on Georgia's Treatment of the Death Penalty^*

I. Introduction

The clock slowly ticks to 8:00 p.m. Popcorn in hand, he plops down in front of the television and quickly flips on "Criminal Minds".¹ He shoves in a kernel of popcorn as the show sets our scene. The clock slowly ticks to 11:45 p.m. A firm hand escorts a woman dressed in a bright orange jumpsuit into a small, sterile room. Only a large pane of glass separates her from the somber faces of witnesses, friends, and family. They whisper among each other and take their seats in the theater-like arrangement. Coarse straps are tightly pulled around her arms—he pops another kernel into his mouth. She slowly settles into the cold, slightly worn chair. The clock ticks to 11:53 p.m. Her fingers grip the armrests, as she slowly realizes that this is the last surface she will ever touch. A dark sack is placed over her recently shaved head. The doctor prepares the syringe, gently squeezing some of the slightly viscous liquid that will soon be injected. The clock reads 11:59 p.m. She tightens her grip as she senses the needle approach. The phone rings. The execution is stopped.² He chomps on another kernel.

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The story described is a familiar one. Movies, television shows, novels, music, and podcasts feature similar narrations, as well as stories that end in not such a happy ending. But how do we comfortably begin an honest discussion on systematic, legalized executions? The bottom line is we cannot, at least not comfortably. Death Penalty Law is simply difficult to discuss. It is a concept that rarely appears in conversation, and is actively avoided, among family, friends, and even colleagues in the legal community. Recently, however, our society has seen these conversations emerge, thanks to the popularization of impactful novels such as Just Mercy³ and the eruption of social movements such as Black Lives Matter.⁴ These novels and national protests kindled an open discussion about imprisonment and, more specifically, about Death Penalty Law.

Despite this recent influx of conversation opportunities, Death Penalty Law is still a difficult topic to consider. Yet, the conversation is well worth having. As Justice Brennan noted, there is no national debate "comparable to the debate about the punishment of death."⁵ Justice Brennan's comment identifies the need to discuss not only the specifics of a trial and verdict, but the need to complete our discussion by considering the actual imposition of the sentence. It seems like our typical idea of a "courtroom drama" rarely continues past the conviction, relevant appeals, and death row waiting period to the final, lethal injection. However, without considering the final, lethal injection, this debate is incomplete. As Justice Brennan noted, our debate must include a serious consideration of the ultimate conclusion—the death sentence.

With this national debate comes an inherent investigation into ethical, religious, or political convictions. As Bryan Stephenson remarked, "[t]he death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, 'Do we deserve to kill?'"⁶ This elegant and succinct question perfectly presents the internal conflict a person faces when pressed with a true and complete examination of the death penalty. Do we deserve to kill?

This Article aims to treat Death Penalty Law with a respectful and unbiased attitude, in which the author aspires to put aside personal

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convictions and encourages readers to do the same. Together, we will explore this controversial topic and will focus on (1) procedure and requirements for a death penalty, as outlined by Georgia statutory law; (2) review of death penalty verdicts; (3) imposition of a death sentence; (4) history of death penalty law; (5) significant death penalty cases in Georgia; (6) the decline of the death penalty in Georgia; (7) violent crime statistics; (8) possible explanations for this decline; (9) the impacts of violent crime exposure on death penalty law; and finally, (10) the future of death penalty law. This in-depth analysis will act as a "field guide" to death penalty law, and will specifically ask in what way, if any, has our exposure to violent crime affected our views on the death penalty and, by extension, have the findings by jurors been affected.

II. Eligible Crimes in Georgia

Within the Official Code of Georgia Annotated (O.C.G.A.), Georgia statutory law provides a detailed framework for eligible crimes, mitigating circumstance analysis, sentence review, and appeal of death sentences. First and foremost, O.C.G.A. § 17-10-30⁷ identifies crimes currently eligible for capital punishment, including (1) aircraft hijacking; (2) treason; and (3) murder, namely felony murder.⁸

After a defendant is convicted of one of these crimes, pursuant to O.C.G.A. § 17-10-31,⁹ a death sentence is not permitted unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that a death sentence be imposed. Such aggravating circumstances include: (1) murder, rape, armed robbery, or kidnapping committed (a) by someone with a prior felony conviction or (b) while the offender was engaged in the commission of another capital felony, aggravated battery, burglary of any degree, or arson in the first degree; (2) the offender's act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place; (3) the offender committed the offense of murder for himself or another in order to receive something of monetary value; (4) the murder of a present or former judicial officer, a present or former district attorney or solicitor-general, or of any peace officer, corrections employee, or firefighter, committed during or because of the exercise of his or her official duties; (5) the offender caused or directed another, or as an agent or employee, committed the murder; (6) the murder, rape, armed robbery, or kidnapping was

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outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim; (7) a murder committed by someone in or who escaped from lawful custody of a peace officer or place of lawful confinement; (8) a murder committed in order to avoid, interfere with, or prevent a lawful arrest or custody in a place of lawful confinement of himself or another; (9) a murder, rape, or kidnapping committed by a person previously convicted of rape, aggravated sodomy, aggravated child molestation, or aggravated sexual battery; or, (10) a murder was committed during an act of domestic terrorism.¹⁰

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Without a finding of one of these aggravating circumstances, a jury must recommend a sentence of either life imprisonment without parole or life imprisonment with the possibility of parole.¹¹ As noted in Conner v. State,¹² if the jury fails to find at least one statutory aggravating circumstance, that panel "would have had no further duty; the death penalty could not have been imposed."¹³ This burdensome responsibility requires an in-depth look into the life of the defendant as jurors consider any mitigating circumstances, and requires the defense to develop successful storytelling abilities in order to evoke both empathy and sympathy from the diverse group of jurors.

A. Prosecutors and the Death Penalty

A district attorney's decision to seek the death penalty is of vital importance, since, if the jury votes to impose a death sentence and any appeals are unsuccessful, a lethal injection is irreversible.¹⁴ Many factors go into a district attorney's decision to approve or encourage the pursuit of a death sentence. Personal beliefs, political and/or religious affiliations, and influence of social movements affect an individual's view of the death penalty. An attorney is no exception. A district attorney's impactful decision to seek a death penalty sentence is undoubtedly impacted by personal beliefs and convictions, as well as political and social contexts.¹⁵ As identified by both the U.S. General Accounting Office and the United States Department of Justice,

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particular ideologies of a district attorney are often, albeit unavoidably, one of the most important variables affecting whether a defendant will be subject to the death penalty.¹⁶ Willis v. State¹⁷ identified this responsibility and discretion awarded to prosecutors and district attorneys in citing that there exist few standards for "district attorneys to apply in deciding whether to seek the death penalty."¹⁸ Despite any influences, a district attorney initiates death penalty sentencing in deciding whether to pursue a death sentence.

B. Mitigating Circumstances

One of the best "weapons" in a defense attorney's arsenal is the ability to empathize with the jury, and "humanize" the defendant, through the mitigating circumstance analysis. While Georgia statutory law, namely O.C.G.A. § 17-10-30, is somewhat uncommunicative on the definition of mitigating circumstances, the jury is permitted, and even encouraged, to consider anything mitigating which may affect the outcome of their sentencing recommendation.¹⁹ As outlined in Eddings v. Oklahoma,²⁰ Georgia law directs a jury to consider any mitigating circumstances, and, as such, the Georgia statute "properly confined and directed the jury's attention to the circumstances of the particular crime and to 'the characteristics of the person who committed the crime'[.]"²¹ These "circumstances" and "characteristics" refer to the mitigating circumstance analysis. The Court further noted, "[j]ust as the State may...