The shifting of the Supreme Court of Georgia's death penalty decisions from 1998-2003.

AuthorDeitz, Laura C.

    This high court study examines the Supreme Court of Georgia's death penalty rulings from 1998 to 2003. The Court's death penalty jurisprudence during this period includes over thirty-one majority opinions and the accompanying concurrences and dissents. These divided opinions facilitate analysis of the individual justices' positions on the significant issues. (1)

    Georgia's Constitution provides guidelines for both the composition of the Court through elections--"[t]he Supreme Court shall consist of not more than nine Justices who shall elect from among themselves a Chief Justice ... and a Presiding Justice" (2)--and the requirement that "[a] majority shall be necessary to hear and determine cases." (3) The public elects the members of the Georgia Supreme Court for six-year terms. (4) The Chief Justice and Presiding Justice of the Court are then elected by the other members of the Court and serve a two-year term. (5) Both the Chief Justice and Presiding Justice are eligible for re-election to serve a second two-year term. (6) Notably, the Court's composition has remained the same since July 1995. (7)

    The Supreme Court, Georgia's highest tribunal, has exclusive appellate jurisdiction over "[a]ll cases involving the construction ... of the Constitution of the State of Georgia or of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question." (8) In addition, the Court has jurisdiction over "[a]ll cases in which a sentence of death was imposed or could be imposed." (9) Prior to the Court's imposition of a death sentence, Georgia law requires a jury to find "at least one statutory aggravating circumstance," (10) and recommend the death penalty to the trial court. (11) Pursuant to Georgia statutory law, the Supreme Court of Georgia must undertake a proportionality review for each death sentence to determine "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." (12)

    Since Georgia's first documented use of capital punishment in 1735, the method of execution has changed several times. (13) From 1735 to 1925, over 500 defendants were executed by hanging, the "legal method of execution" during that period. (14) In 1924, the Georgia General Assembly banned death by hanging and replaced it with the electric chair, which remained the legal instrument of execution until 2000. (15) As a result of Georgia House Bill 1284, the means of execution has been lethal injection since May 1, 2000. (16) Between 1998 and 2003, twelve of Georgia's death row inmates were executed, and thirty-six inmates have been executed in the state from 1976 through July 2004. (17)

    It is beneficial to ascertain the underlying political and social stances of the members of the Court in order to appreciate Georgia's fundamental laws and policies. (18) Given the members of the Court and its controversial death penalty decisions, this study seeks to provide insight into the individual justices' sentiments, as well as project the degree to which retirements and reelections may affect the future of Georgia's death penalty jurisprudence.


    For this high court study, the voting records for published death penalty convictions and sentencing decisions during the years 1998-2003 were researched. Though this method provides only a limited view of the Court system, it does serve to illustrate several unique moments in the Court's history. For example, the State imposed an unofficial "three-year moratorium" on executing inmates from 1998-2001 while the Court struggled with Georgia's use of the electric chair. (19) It was during this moratorium period that seventy-four percent of the separate opinions studied were handed down, a statistic that exemplifies the divisiveness of capital punishment methods. (20) In 2001, the landmark Dawson v. State decision held that death by electrocution was "cruel and unusual punishment" and therefore unconstitutional. (21) The decision, however, permitted four inmates to be executed by lethal injection in the eight weeks following the moratorium's end. (22) The Dawson decision is particularly remarkable when one considers that Georgia's legislature did not enact a ban on capital punishment for the mentally retarded until 1988, (23) which the Court upheld in 1989. (24) Since Dawson, there has been debate whether the Court endorsed lethal injection as the only suitable means of carrying out death sentences. (25)

    Because the Court's composition has remained stable since 1995, (26) this is an appropriate time to analyze the Court's recent decisions and attempt to determine where the justices might lead Georgia's death penalty jurisprudence in the future. The thirty-one cases examined, while not exhaustive of the decisions handed down from 1998-2003, contain differing perspectives of the Court's members as indicated by separate concurrences and dissents. By seeking out cases with divided opinions using both Lexis and Westlaw's online databases, a large pool of cases was generated, which provided a point to commence research.

    After numerous cases were accumulated using the above method, it became apparent that the collection would have to be narrowed to allow substantial treatment of a single issue. Criminal cases instantly presented interesting and diverging viewpoints among the members of the Court. These cases involved fundamental liberties with maximum penalties ranging from life in imprisonment to death, thus placing additional pressure on the justices to make a fair decision based on their construction of Georgia law.

    In reviewing the cases collected, there were over thirty-one criminal cases relating to death convictions and sentences that contained at least one opinion that took a different approach than the majority. The cases were then separated by concurrence or dissent to assess the influential voices on the Court. Next, the holdings were examined to determine which justice wrote the majority opinion, concurring or dissenting opinion (if any), and why. This method resulted in discovering the most conflicted aspects of Georgia's death penalty jurisprudence--for example, electrocution as a means of carrying out a death sentence. The initial noticeable gauge in the criminal cases was whether the justice most often agreed with the prosecution or defense. While this is a subjective construction, for purposes of this study the categorization "liberal" will be used to depict opinions that favor the defendant and "conservative" will pertain to decisions that favor the prosecution. (27)

    The graphic representations of these propositions are found in the appendices subsequent to this high court study. To be concise, the individual voting records of the justices were summarized as to whether they voted more often for the prosecution or defense. Then, the cases that varied from a justice's usual voting pattern were examined to determine which subjects caused them to shift from their customary position. The cases that fluctuated from the pattern and were written by that justice received additional consideration. This high court study concludes by exploring the impact of the Court's death penalty decisions and contemplating the future of the Court's composition as it is affected by retirements and the election process.


    1. Chief Justice Norman S. Fletcher

      Norman S. Fletcher, who earned his L.L.B. from the University of Georgia and his L.L.M. from the University of Virginia School of Law, was named Chief Justice of the Court in 2001. (28) He served as both Lafayette City Attorney and Walker County Attorney prior to assuming a position on the Court in 1989. (29) When Justice Fletcher was sworn in as Chief Justice in 2001, one of the goals he articulated for his term was to '"overhaul our fragmented system of providing indigent defense.'" (30)

      Chief Justice Fletcher, the most publicly outspoken member of the Court, often dissents in cases where the imposition of the death penalty is affirmed. For example, Chief Justice Fletcher recently spoke out against a bill in the Georgia Statehouse proposing an election system for public defenders, observing '"I can't imagine electing public defenders on a partisan basis,'" and cited an example of a candidate in Florida, a state where public defenders are elected into office, who campaigned as a proponent of capital punishment. (31) Justice Fletcher's Chief Justice term expires on July 1, 2005, and his regular term ends in 2008. (32)

      Chief Justice Fletcher's voting record with respect to death penalty convictions and sentences--indicated in Appendix B that follows--is overwhelmingly pro-defense. Over the course of thirty-one cases, Chief Justice Fletcher voted for the defense twenty-one times. As illustrated by the attached graph, (33) Chief Justice Fletcher frequently dissented from the majority opinion. (34) In those atypical instances in which Chief Justice Fletcher voted for the prosecution, the cases involved issues such as ineffective assistance of counsel and electrocution as a means of executing an inmate. (35)

      In Esposito v. State, for example, then-Presiding Justice Fletcher wrote the majority opinion finding that the defendant did not offer sufficient evidence to compel the Court to find that use of the electric chair violated the cruel and unusual punishment clause under either the Georgia or United States Constitutions, though he did admit that electrocution was a "troubling moral and legal issue." (36) Justice Fletcher explained, however, that the Court was willing to confront this difficult matter "upon a sufficient evidentiary showing," despite his personal belief that the other governmental branches were better suited to determine Georgia's future execution methods. (37) In 2000, when Justice Fletcher wrote the Esposito opinion, only...

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