The fading penalty of death



NoteI wrote this on spec for a Georgia magazine. They passed. 

As the numbers of death sentences and executions continue their free fall in the United States, Georgia led the country in executions last year with nine, setting a state record for the most executions in one year. Texas, which has killed 542 people since 1973 and has executed more people since 1973 than the next six states combined, killed only seven people last year.

The surge occurred because Georgia had put executions on hold several times in the past four years as it changed the drugs administered, fought a challenge to a law that keeps the source of drugs secret, and replaced a stock of drugs that had solidified, according to the Chicago Tribune. In the meantime, several people on death row had exhausted all of their appeals and their sentences could be carried out.

The spike in Georgia is unusual, given the sharp decline in executions. Nationwide, the modern peak was 98 executions in 1999. Since then, the number has tumbled to only 20 in 2016, according to the nonprofit Death Penalty Information Center in Washington, D.C.

There are several factors that might slow the execution rate even further.

Drug makers balk at lethal use

One is practical. It’s getting harder and harder to find the needed drugs because pharmaceutical companies are under intense public pressure to stop allowing their drugs to be used to kill people. Since 1975, lethal injection has accounted for 1,274 executions, followed distantly by electrocution at 158.

Last month, Arkansas wanted to execute eight people in 10 days because its supply of midazolam, a chemical in its lethal injection , was about to expire and the state wasn’t sure it could get more.  Midazolam, a sedative, is a substitute for more effective drugs that are now in short supply.

Many debate whether midazlam is effective enough.

U.S. Supreme Court Justice Sonia Sotomayor wrote in her dissent in a recent Alabama death row inmate’s appeal  that, “like a hangman’s poorly tied noose or a malfunctioning electric chair, midazolam might render our latest method of execution too much for our conscience — and the Constitution — to bear.”

While Arkansas juggled last-minute appeals and court injunctions, it also was sued by McKesson Corp., one of the nation’s largest pharmaceutical distributors, to stop the state from using one of the drugs it sells.

McKesson alleges that the Arkansas Department of Corrections illegally obtained anesthesia drug Vecuronium in July 2016 by not disclosing it was buying the drug with the intent to execute prisoners, according to KFSM-TV in Little Rock. McKesson, which sells drugs for other companies, cannot sell the drug to federal and state correctional facilities that engage in capital punishment.

The same shortage of effective lethal drugs is plaguing other states, too. Thus, Oklahoma is bringing back the gas chamber; Utah is reviving the firing squad; and Tennessee is reconnecting the electric chair.

But in Georgia, the electric chair is off limits.

In a 4-3 decision in 2001, the Georgia Supreme Court said that death by electrocution “inflicts purposeless physical violence and needless mutilation that makes no measurable contribution to accepted goals of punishment. … Electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the prohibition against cruel and unusual punishment.”

Innocence on death row

Another reason for the penalty’s decline, according to a recent article in The New York Times, is that judges are willing to give defendants every benefit of the doubt in their appeals because of the system’s spotty track record.  Since 1976, more than 155 people on death row were proved to be innocent, including six in Georgia and two in South Carolina. In Florida, 26 people were found to be innocent.

Norman Fletcher was Georgia’s chief justice in 2001 when the court ruled that the electric chair was unconstitutional. Since his retirement in 2011, Fletcher has become a vocal opponent of the death penalty in general and Georgia’s appeals process in particular.

In a recent opinion piece in the New York Times, Fletcher wrote that Georgia stands nearly alone as a state that does not require legal representation throughout the appeals process.

“Perhaps the biggest problem with Georgia’s system, and one of the reasons the state carries out so many executions, is that it often fails to provide people with lawyers,” Fletcher wrote.

While Fletcher was presiding justice in 1999, the court considered an appeal of a post-conviction hearing for Exzavious Gibson, who was 17 when he committed his crime.

Gibson had an opportunity to argue that he did not receive adequate representation during his trial, but, ironically, no volunteer attorney was available to file that appeal.

“Mr. Gibson, who was poor and apparently, from the records, intellectually disabled and afflicted by acute mental health problems, was forced to represent himself. That sham of a proceeding is one of the most deplorable vignettes in Georgia’s legal history,” Fletcher wrote.

The Georgia court decided, 4-3, that people with death-penalty convictions have no right to counsel at the post-conviction stage — a ruling still in force today.

“There can be no doubt that actually innocent persons have been executed in this country,” Fletcher said.

Too often, Fletcher contends, budgetary issues, race and politics factor into the decision-making of whether to seek the death penalty.

Shifting public opinion

The third possible death knell for capital punishment is waning public support. The New York Times reports that support for the death penalty is at its lowest level since the U.S. Supreme Court reinstated it in 1976.

A Gallup poll released last fall said 60 percent of respondents said they support capital punishment, down 9 points since 2007 and 20 points since its peak in 1994. Half of respondents believe the death penalty is applied fairly, the lowest level in the question’s 17-year history. Forty-four percent believe it is applied unfairly, the highest level in 17 years.

A Pew Poll this year found that support for the death penalty had dropped to 49 percent, marking the first time support had dropped below 50 percent since 1971.

Gallup’s report said, “This is reflected in, or perhaps the force behind, changes in death penalty laws in recent years, with a total of 12 states abolishing the death penalty or imposing a moratorium in the last decade alone.”

American courts imposed 30 death sentences last year, down from the peak of 315 in 1996, the New York Times reported. Georgia has imposed only one death sentence in the past four years.

A recent poll by NBC News showed that if injection is no longer available,42 percent of Americans polled said the death penalty should be discontinued. Twenty percent favored switching to the gas chamber, 18 percent the electric chair, 12 percent a firing squad and 8 percent hanging.

More reasons for the declining support for the death penalty is the expense and the lack of effect on crime rates.

Proponents of the death penalty argue that the ultimate punishment deters others from committing crimes. That isn’t true, according to the Death Penalty Information Center. A 2009 poll it commissioned found police chiefs ranked the death penalty last among ways to reduce violent crime. The police chiefs also considered the death penalty the least efficient use of taxpayers’ money.

For these reasons, we might just be hearing the last gasps for the death penalty in several more states.

Georgia’s execution history

Georgia has employed capital punishment since colonial times, with executions recorded as early as 1735. Crimes punishable by capital punishment in Georgia have included murder, robbery, rape, horse stealing, and aiding a runaway slave.

The first Georgia execution by electric chair was carried out in 1924 and the method quickly replaced hanging. The last hanging was in 1931. Before 1976, Georgia carried out 950 executions, the fourth-highest number of any state. Since the death penalty, Georgia has executed 69 people, the sixth most in the country.

Georgia’s two chairs:

  • ‘Old Sparky’ was used from 1924 until 1980. Painted white, it is on display at Georgia State Prison in Reidsville.
  • Chair two, a squat, varnished version, was used from 1980 until 2001, when the state ruled it unconstitutional. That chair is stored in a closet near the death chamber at the Georgia Diagnostic and Classification Center in Jackson. There are 67 men on death row in Georgia.

The story of Lena Baker

Lena Baker was an African-American maid in Cuthbert, Ga., who was convicted of killing her white employer, Ernest Knight, and sentenced to death in 1944 after a four-hour trial in which no defense was presented on Baker’s behalf, according to NPR.  She was executed  in 1945, the only woman in Georgia to be electrocuted.

At the time of the trial, a local newspaper reported that Baker was held as a “slave woman” by Knight, and that she shot him in self defense during a struggle. In 2005, 60 years after her execution, the state of Georgia granted Baker a full and unconditional pardon. A biography was published about Baker in 2001, and it was adapted for the feature film, “The Lena Baker Story,” in 2008, which was shown at Cannes Film Festival.

Executed for a crime she didn’t commit

Kelly Gissendaner, 47, is the only woman Georgia has executed since the death penalty was reinstated in 1983. She died Sept. 30, 2015, by lethal injection after exhausting appeals in her conviction for contracting her boyfriend to kill her husband, Douglas Gissendaner in 1997. Her boyfriend agreed to a plea bargain in exchange for testifying against Gissendaner. She is the only person Georgia has executed since 1976 for a murder she didn’t actually commit.

Georgia cases halt, and restart, executions in U.S.

It was cases originating in Georgia that caused the U.S. Supreme Court to halt the death penalty in 1972 because of unequal application and to restore the death penalty four years later.

Furman v. Georgia and two cases from Texas where two rapists were condemned to death, halted the death penalty in the United States. The U.S. Supreme Court ruled, 5-4, in 1972 that the death penalty violated the Eighth Amendment prohibition on cruel and unusual punishment and Fourteenth Amendment prohibitions against discrimination because it had been imposed in a seemingly random and inconsistent manner, according to

In that case, William Furman had broken into a home when the resident discovered him. He tried to escape, but tripped and fell. The gun that he was carrying went off and killed the resident of the home. He was convicted of murder and sentenced to death, according to

The court found that the death sentences in the three cases were inconsistently applied and ruled the penalty unconstitutional.

Four years later, the U.S. Supreme Court in Gregg vs. Georgia ruled, 7-2, that the death penalty in and of itself is not cruel and unusual punishment. It said that careful and judicious use of the death penalty may be appropriate. Today, 31 states have death penalties on their books.


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