A Promise Unfulfilled: Challenges to Georgia's Death Penalty Statute Post-furman

• Publication year: 2017

A Promise Unfulfilled: Challenges To Georgia's Death Penalty Statute Post-Furman

William Cody Newsome
Georgia State University College of Law, wnewsome2@student.gsu.edu

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A PROMISE UNFULFILLED: CHALLENGES TO GEORGIA'S DEATH PENALTY STATUTE POST-FURMAN

William Cody Newsome^*

INTRODUCTION

William Henry Furman was twenty-nine years old when he was convicted for the murder of William Joseph Micke, Jr., on September 20, 1968.¹ After a trial lasting a single day, the jury returned a guilty verdict along with a death sentence.² The only evidence presented to the jury was a conflicting account of the events,³ and Furman's age and race.⁴ On appeal, Furman's counsel argued Georgia law created an arbitrary death penalty because it failed to distinguish the present crime "from thousands of others for which the death penalty is not inflicted."⁵

In Furman v. Georgia,⁶ the U.S. Supreme Court agreed with Furman's counsel.⁷ Three Justices agreed that Georgia law, as applied, was arbitrary and potentially discriminatory.⁸ Moreover, one

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Justice challenged the value of the death penalty and doubted it served any of the alleged purposes for which it was employed.⁹ The challenges of five Justices in Furman opened the floodgates for additional legal challenges to the death penalty.

Since Furman, the Court has ruled on various legal procedures involved in the process of execution.¹⁰ Each challenge illustrates the Court's evolving understanding of "cruel and unusual punishment,"¹¹ and what that means for the viability of the death penalty in America. With each new standard the Court imposes, the marginal benefits of imposing the death penalty are diminished. ¹² Faced with the challenges of imposing the death penalty, nineteen states and the

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District of Columbia have simply abolished the punishment altogether.¹³

Although many challenges subsequent to Furman have been raised and arguably resolved by the Court, the underlying challenges raised by Furman appear to remain prevalent with the Court. Justice Breyer recently echoed the concurring opinions of Furman in his dissenting opinion from Glossip v. Gross, when he stated: "In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty's application. We cannot have both."¹⁴

This Note will explore both sides of Justice Breyer's contention in Glossip. Part I will establish a brief history of the death penalty in the United States and the constitutional limits imposed by the Supreme Court of the United States.¹⁵ Part I will also discuss Furman v. Georgia and establish the constitutional principles that result from that decision.

Part II will analyze Justice Breyer's contention in Glossip by first looking to whether contemporary death penalty systems serve a "penological purpose," ¹⁶ and then whether the systems of Connecticut¹⁷ or Maryland fail to achieve "reliability and fairness in [their respective] application." ¹⁸ Part II will conclude with an additional study conducted in Georgia, which reinforces similar findings in Connecticut and Maryland regarding their respective issues with the death penalty.¹⁹ Finally, Part III will examine whether Georgia can improve its death penalty system and what steps it should take to eliminate the issues articulated in Furman.²⁰

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I. Background

The death penalty has developed as a result of general reforms,²¹ but more importantly through federal interpretations of common and constitutional law.²²

A. Federal Interpretations of Common and Constitutional Law

Due to death penalty system reforms, the punishment was in a relative state of flux between 1900 and 1960 in the United States.²³ However, the Supreme Court attempted to combat that flux by shaping the developments of modern death penalty laws through the lens of common law and the Fifth,²⁴ Eighth, ²⁵ and Fourteenth Amendments to the Constitution.²⁶

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First, in Weems v. United States,²⁷ the Court established the constitutional requirement for proportionality between the crime and punishment.²⁸ Second, the Court decided Louisiana ex rel. Francis v. Resweber,²⁹ where it held that the Constitution prohibited cruelty in the method of execution, not the suffering as a result of being sentenced to death.³⁰ Third, in Trop v. Dulles,³¹ the Court stated that its understanding of cruel and unusual punishment develops along with society.³² Trop was pivotal in that it established a standard of "decency . . . of a maturing society,"³³ opening the door for the Court to eventually rule the process unconstitutional altogether. These cases largely guided the Court in death penalty cases like Furman and beyond.

B. Pre-Furman to Post-Furman

Following Trop, six characteristics of the death penalty bearing constitutional significance became evident across numerous death

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penalty schemes throughout the United States. ³⁴ The first characteristic defining the death penalty was the discretion granted to sentencing juries without any standards to ensure consistent results.³⁵ Second, a large number of people became eligible for the death penalty because of the large number of chargeable capital crimes.³⁶ These facts also related to the third characteristic where the number of people sentenced to death and numbers of people actually executed were "remarkably small."³⁷ The fourth characteristic in many states was the limitation of appellate jurisdiction to "special legal errors," that did not include the "reasonableness of a death sentence," in any given case.³⁸ The fifth characteristic commonly prevalent was a "very high proportion of nonwhite defendants sentenced to death." ³⁹ Finally, the sixth characteristic dealt with multiple points of discretion throughout the process of prosecution that lead to the death penalty.⁴⁰ The Supreme Court addressed each of these characteristics in Furman.⁴¹

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1. Furman v. Georgia

The Court in Furman issued a single paragraph per curiam opinion invalidating the death penalty laws of Georgia and Texas. ⁴² Unfortunately, each Justice wrote his own concurring or dissenting opinion, leaving little clear guidance for future courts. Three of the Justices agreed that as applied ⁴³ the death penalty was unconstitutional in the United States. ⁴⁴ However, two Justices challenged the assumption of the death penalty's constitutionality and for the first time ruled that it is unconstitutional as cruel and unusual punishment.⁴⁵ The four dissenting Justices relied on principles of federalism when upholding the laws of Georgia and Texas.⁴⁶

As applied, Justice Douglas found that the death penalty impermissibly targeted poor, black Americans unequally,⁴⁷ and thus, violated the Fourteenth Amendment's equal protection guarantee.⁴⁸ Justice Stewart implicitly rejected the federalism argument, finding jury discretion without standards violated the Eighth Amendment because there was no way to distinguish the "capriciously selected

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random handful," chosen to die from those that were not.⁴⁹ Justice White viewed the death penalty as constitutional only if it advanced some penological purpose.⁵⁰ However, he found that the death penalty as applied did not serve such a purpose because of three reasons: (1) the extreme infrequency of use, (2) the alternative of lengthy incarceration, and (3) the impossibility of determining why some defendants were sentenced to death while others, convicted of the same crimes, were not.⁵¹

Justice Brennan and Justice Marshall concluded the death penalty was unconstitutional in any circumstance.⁵² Justice Brennan further concluded current laws created the potential for degradation of human dignity,⁵³ relying on four principles to evaluate the level of degradation the punishment created.⁵⁴ Following Justice Brennan's lead, Justice Marshall echoed the four principles and evaluated six purposes the death penalty allegedly served.⁵⁵ Justice Marshall considered: (1) retribution, (2) deterrence, (3) prevention of recidivism, (4) encouragement of confessions and guilty pleas, (5) eugenics, and (6) economic reasons.⁵⁶ He then rejected each of these purposes as illegitimate to retain the death penalty.⁵⁷

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A majority of the Justices did agree, however, "death-sentencing systems operated in an essentially arbitrary and discriminatory fashion."⁵⁸ As a result of the five concurring opinions issued by the Justices, the Court invalidated forty-two death penalty statues as unconstitutional,⁵⁹ leaving the states with few options.

2. Post-Furman

Following Furman, seven states did not try to rewrite their statues; ⁶⁰ ten states rewrote their statutes imposing mandatory sentences for capital crimes;⁶¹ and twenty-five states rewrote their statues around the issues raised in Furman.⁶² The statutes of the ten states that imposed mandatory sentences were almost immediately challenged and ruled unconstitutional in Woodson v. North Carolina.⁶³

On the same day of Woodson, the Court issued the plurality opinion of Gregg v. Georgia,⁶⁴ holding "the punishment of death does not invariably violate the Constitution."⁶⁵ The Court then reviewed Georgia's new death penalty statute.⁶⁶ Under the new Georgia law following Furman, the death penalty would only be imposed under a bifurcated system.⁶⁷ The case would proceed normally through a trial, and upon conviction, a separate hearing

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dedicated to sentencing would be conducted.⁶⁸ At this point, the prosecution and defense would present new evidence to the jury regarding the case's extenuating, mitigating, and aggravating circumstances.⁶⁹ Should the jury find an aggravating circumstance and then choose to sentence the defendant to death, the law provides "for a special expedited direct review by the Supreme Court of Georgia . . . ."⁷⁰ The Supreme Court of Georgia would not only review the case for...