In an editorial that followed a four-part news series reviewing death penalty-eligible murder cases in Georgia between 1995 and 2004, the Atlanta Journal Constitution called on the state to abandon capital punishment because death sentences are often unfairly influenced by geography, a prosecutor’s personal politics, or the victim’s race. The paper also said that Georgia fails to meet minimum standards to ensure an accurate and fair capital punishment system, noting:

For criminal cases involving the most severe punishment that society can inflict, justice has never been blind. As we’re learning, it probably never can be.

But if society chooses to inflict death, it has an obligation to do so fairly. A death sentence should not be arbitrary and capricious, imposed on some but not on others who are guilty of even more heinous crimes.

And because a death sentence is absolute, it should be imposed only in cases where the person’s guilt is absolutely certain, and it should be imposed based on clear standards in the law, not on the human biases and prejudices that afflict all of us.

The death penalty as it is imposed here in Georgia does not meet those minimum standards.

For example:

• District attorneys in metro Atlanta counties such as DeKalb and Fulton routinely offer defendants in capital crimes the option of pleading guilty and facing life sentences without hope of parole.

But in similar cases elsewhere in the state, prosecutors seek and win death penalty sentences, making the punishment irrational.

“It would make as much sense just to execute every 10th or every 100th murderer [as] it would be to figure out the rhyme or reason for why we’re picking the ones to get the death penalty,” as Atlanta defense attorney Jack Martin noted.

• Race has played a role in the administration of justice in this country since its founding. That ugly and intractable dynamic is still evident today; according to a statistical analysis of more than a thousand cases, prosecutors in Georgia were twice as likely to seek the death penalty if the victim was white than if the victim was black. In the more specific category of murders carried out during an armed robbery, defendants were an astonishing six times as likely to face death sentences if the person they killed was white.

• The Georgia Supreme Court has the responsibility to scrutinize death sentences to ensure the penalty is being applied uniformly statewide, based on precedents set in earlier cases. But former and sitting justices openly admit that their “proportionality reviews” have often been woefully sloppy and inaccurate.

In the vast majority of 159 such reviews undertaken since 1982, the justices have cited cases as precedent that had actually been dismissed, overturned or reversed on appeal, including some that had been overturned by the justices themselves. Only 14 of those 159 proportionality reviews cited no cases that had been reversed.

In 1972, citing evidence that the death penalty in Georgia was being applied in a similarly arbitrary manner, the U.S. Supreme Court threw out death-penalty laws here and in 39 other states as well. Since then, laws have been rewritten and processes and safeguards allegedly tightened, but to little apparent effect.

The difficulties of fairly, accurately and efficiently carrying out the death penalty in Georgia are further illustrated by two prominent cases in the news. The first involves Brian Nichols, charged in a sensational 2005 killing spree that left four people dead, including a judge, his court reporter, a sheriff’s deputy and a federal agent. The proceedings have been repeatedly delayed by controversy over the cost of Nichols’ state-appointed legal defense, which has now reached more than $1.8 million.

The multiple crimes alleged to have been committed by Nichols are at least as heinous as those that have put other people on Death Row. But even if Nichols is found guilty, at this point the odds of a death sentence being imposed and carried out against him appear pretty slim. If that assessment proves valid, it would add to the already overwhelming evidence of the arbitrary nature of the death penalty in Georgia.

The second Georgia case involves the fate of Troy Anthony Davis, who was convicted in 1991 of killing a Savannah police officer and has been sitting on death row ever since. Davis was convicted based exclusively on eyewitness testimony, which in other cases has proved notoriously unreliable, especially when no supporting physical evidence existed. For example, in cases in which DNA evidence has exonerated felons of crimes they did not commit, faulty eyewitness reports often turns out to have played a central role in the original conviction.

In the Davis case, the uncertain nature of eyewitness testimony is compounded by the fact that most of the prosecution witnesses have since recanted or contradicted their testimony naming Davis as the killer. Yet Davis was one day from execution before state officials agreed to a temporary stay to examine his case more carefully.

Georgia’s death penalty law can and should be updated to try to wring as much unfairness as possible from the system, but reform can never eradicate the possibility of error, and it can never remove human bias and prejudice from the process. Imposing the absolute penalty requires absolute justice, and in the absence of that, the death penalty ought to be abolished.

(Atlanta Journal Constitution, September 27, 2007). See Editorials, Innocence, and Race.