The dramatic decline in death sentencing and executions is exemplified by developments in Georgia, a once-profligate practitioner of capital punishment, and the state where I have practiced post-conviction capital defense for over 25 years. Georgia has the distinction of having pioneered modern capital trial procedures that received the Supreme Court’s blessing in 1976 and were quickly copied by other states. See Gregg v. Georgia, 428 U.S. 153 (1976). Then Georgia Governor Jimmy Carter signed the state’s modern capital punishment scheme into law, though he has since publicly expressed regret for this. See Nicole Flatow, Jimmy Carter Calls for Death Penalty Abolition, Think Progress (Nov. 12, 2013).
When I came to Georgia out of law school in 1996 to work as a staff attorney for the Georgia Resource Center, a capital post-conviction defender office (I later became its director in 2009 and left the Center in 2018), new death sentences and executions were routine. The 1990s were a time of near-hysterical anxiety over crime. Early in the decade, the nation was riveted by the trials of the Central Park Five—five young Black men we now know were wrongfully convicted of the sensationalized 1989 rape and assault of a woman jogger in New York City. Former Arkansas Governor Bill Clinton “proved” his tough-on-crime bona fides prior to the 1992 presidential election by returning to Arkansas from the campaign trail to oversee the execution of a severely brain-damaged Black prisoner named Ricky Ray Rector. Donald Trump and Hillary Clinton alike deplored teenaged “superpredators.” Then-Senator Joe Biden and President Clinton pushed through the 1994 Crime Bill, which began a new era of mass incarceration. After Timothy McVeigh’s bombing of the Murrah federal building in Oklahoma City in 1995, President Clinton signed into law the Anti-Terrorism & Effective Death Penalty Act, designed to speed up death penalty appeals and hasten executions by stripping federal habeas corpus courts of their ability to remedy wrongful convictions and death sentences if state courts had erroneously, but “reasonably,” declined to do so. See 28 U.S.C. § 2254(d). Hundreds of death sentences were handed down, and dozens of executions were carried out annually.
In Georgia in the 1990s, prosecutors sought death in virtually every homicide case, while new rules were promulgated to speed up capital habeas corpus cases in state courts. In 1996, there were roughly 150 men awaiting execution. Offices like the Atlanta-based Georgia Resource Center, the Southern Center for Human Rights, and the Capital Habeas Unit of the Federal Defender Program scrambled to reverse death sentences and stay executions, even as the ranks of the condemned increased month by month.
Until 2001, executions in Georgia were carried out by electrocution. See Dawson v. State, 274 Ga. 327 (2001) (finding Georgia constitution prohibits judicial electrocution). News outlets grotesquely fetishized every technical aspect of judicial homicide by electrocution and reported in granular detail on condemned prisoners’ last meals. It was difficult to comprehend then that a period of marked decline in the use of capital punishment was in the offing.
Nevertheless, over the past quarter century, attorneys, investigators, mitigation specialists, and social workers at Georgia’s capital defense organizations, working with volunteer law firms from all over the country, doggedly reinvestigated dozens of capital cases, exposing systemically deficient representation of indigent defendants at the trial level by woefully inexperienced, incompetent, disinterested, sometimes even drunk, court-appointed attorneys who, in case after case, failed to present juries with available evidence that would likely have resulted in acquittals or life verdicts. Sometimes, it was evidence casting doubt on the defendant’s factual guilt. See In re Troy Davis, 557 U.S. 952 (2009). Frequently it was evidence that the defendant’s violent behavior was the culmination of a lifetime of abuse, neglect, trauma, or undiagnosed and untreated mental disorders. See, e.g., Head v. Taylor, 273 Ga. 69 (2000); Hall v. McPherson, 284 Ga. 219 (2008); Humphrey v. Walker, 294 Ga. 855 (2014). With that evidence, attorneys could show that the initial portrayals of defendants as “monsters” and “the worst of the worst” were misleading and inaccurate. An accurate recounting of defendants’ life histories revealed human beings subject to recognizable human frailties. See, e.g., Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 35 Santa Clara L. Rev. 547 (1995). Courts confronted with the full picture found that jurors adequately informed about the people whose lives they held in their hands would likely have voted for sentences less than death. See Mark Olive, Narrative Works, 77 UMKC L. Rev. 989 (2009).
Year after year, the drumbeat of executions continued, but in each case, by revealing the humanity of the condemned or the flimsiness of the case for guilt, advocates exposed the barbarism of capital punishment. The executions of Troy Davis (likely innocent of the murder of a police officer) and Warren Hill (undisputedly intellectually disabled) were particularly grotesque demonstrations of Georgia’s relentless, implacable drive to carry out death sentences. The battles to save these men were hard fought by their advocates, and courts and public opinion were exposed to alternative narratives that undermined confidence in the propriety of the executions.
At the same time, on a regular basis, death sentences continued to be overturned based on advances in DNA testing, the poor performance of trial counsel, or juror or prosecutorial misconduct. For every execution, a death sentence would be invalidated. Prisoners whose death sentences were overturned were invariably resentenced to life terms through plea negotiations or on retrial.
Work on the legal front was complemented by long decades of advocacy by a vibrant network of activists and clergy of all faiths—in Georgia, members of long-standing ecumenical communities like the Open Door, New Hope House, Jubilee Partners, and the Glad River Congregation—who ministered to condemned prisoners and their families, as well as the families of homicide victims, and lobbied courts and the legislature to rediscover compassion as the basis for a humane justice system. That collective work had a synergistic effect, exposing the wider criminal justice community and the general public to the blatant injustices of the death penalty and positing an alternative framework for comprehending the genesis of violent criminal behavior.
In 2005, the Georgia legislature created and funded a statewide public defender system, including a Capital Defender Office staffed with highly trained attorneys and investigators experienced in defending capital cases. The Georgia Capital Defender institutionalized comprehensive mitigation investigation techniques that were applied in every case as soon as or even before prosecutors noticed intent to seek death. Now, in contrast to post-conviction efforts to backfill information about a client’s history long after trial, capital defense teams amassed this crucial background at the pre-trial stage, where it could have the most timely and potent impact.
Over the next 15 years, Capital Defender attorneys negotiated life terms in dozens of cases, and, by crafting compelling narratives about their clients’ troubled life histories, won life verdicts from juries in nearly every case they could not settle pre-trial. By enabling jurors to recognize their human commonality with the defendants, the work of the Capital Defender seemed to illustrate attorney Bryan Stevenson’s surmise that “there is a strength, a power even, in understanding brokenness, because embracing our brokenness creates a need and desire for mercy, and perhaps a corresponding need to show mercy.” See Bryan Stevenson, Just Mercy (2014).
Negotiated settlements and life verdicts at the trial stages, together with a steady rate of wins in post-conviction habeas corpus cases, caused Georgia’s death row to dwindle from a high of approximately 150 inmates in 1996 to the low 40s today. Executions, of course, also played a part. But they too have dwindled, and the most recent executions—the most recent in 2020—have been of prisoners whose cases were tried well before the establishment of the Georgia Capital Defender. Had they been represented by experienced capital defenders at trial, they would undoubtedly have avoided being sentenced to death.
In the current environment, Georgia prosecutors are increasingly disinclined to seek the death penalty, and even when they do, they can only rarely win death sentences from Georgia juries in cases where the defendants are represented by competent counsel. Indeed, only two new death sentences have been imposed in Georgia in the last eight years. One case involved a severely mentally ill woman who refused all legal counsel and presented no defense in her capital trial in 2019. See, e.g., Becky Kellogg, Court Documents: Stepmom Acting as Own Lawyer Has Brain Damage, Alive (Apr. 23, 2019).
The recent spate of executions carried out by the federal government under former President Trump (paused after the election of President Biden) and the reinstatement of Dzhokhar Tsarnaev’s death sentence by the Supreme Court notwithstanding, the national trend is one of rapidly diminishing rates of death sentencing and executions. The quality of trial representation for capitally charged defendants in all jurisdictions has improved markedly, as reflected in American Bar Association standards that mandate a sophisticated, holistic team approach to capital defense practice. See Russell Stetler & W. Bradley Wendel, The ABA Guidelines and the Norms of Capital Defense Representation, 41 Hofstra L. Rev. 635 (2013). Competent trial counsel now bring to bear all that has been learned over the past 40 years. American juries, confronted with the full complexity of the human lives they must judge, find themselves highly reluctant to kill, as most recently demonstrated in the life sentence handed down in the Nikolas Cruz case.
The story of the decline of the death penalty in America is the story not of a few extraordinary leaders or spectacular milestone events, but of a network of deeply committed activists, advocates, attorneys, and investigators toiling for long years, fueled by faith in “things hoped for, the evidence of things not seen.” Today, that hard work has brought the machinery of death close to the point of collapse.
