Georgia State University Law Review Volume 24 Article 4 Issue 1 Fall 2007 April 2012 CRIMINAL PROCEDURE Sentence and Punishment: Amend Article 2 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, Relating to the Death Penalty Generally, so as to Provide that the Death Penalty May Be Imposed where the Jury Finds at Least One Aggravating Circumstance but Is Unable to Reach a Unanimous Verdict as to the Sentence, Taking into Account the Vote of the Jurors under Certain Circumstances; Change Provisions Relating to the Requirement of a Jury Finding of Aggravating Circumstance and Recommending the Death Penalty; Provide for an Recommended Citation Georgia State University Law Review, CRIMINAL PROCEDURE Sentence and Punishment: Amend Article 2 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, Relating to the Death Penalty Generally, so as to Provide that the Death Penalty May Be Imposed where the Jury Finds at Least One Aggravating Circumstance but Is Unable to Reach a Unanimous Verdict as to the Sentence, Taking into Account the Vote of the Jurors under Certain Circumstances; Change Provisions Relating to the Requirement of a Jury Finding of Aggravating Circumstance and Recommending the Death Penalty; Provide for an Effective Date and Applicability; Repeal Conflicting Laws; and for Other Purposes, 24 Ga. St. U. L. Rev. (2012). Available at: https://readingroom.law.gsu.edu/gsulr/vol24/iss1/4 This Peach Sheet is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State University Law Review by an authorized editor of Reading Room. For more information, please contact [email protected]. Effective Date and Applicability; Repeal Conflicting Laws; and for Other Purposes Georgia State University Law Review Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr Part of the Law Commons : CRIMINAL PROCEDURE Sentence and Punishment: Amend Article 2 of C CRIMINALCRIMINAL PROCEDURE SentenceSentence and Punishment:Punishment: AmendAmend Article Article 22 ofof Chapter 10 of Title 17 of the OfficialOfficial CodeCode ofof Georgia Annotated, Annotated, RelatingRelating to thethe Death Penalty Generally, so as toto ProvideProvide that the Death Penalty MayMay BeBe ImposedImposed where the Jury Finds atat LeastLeast One AggravatingAggravating Circumstance but Is Unable to Reach a Unanimous Verdict as to the Sentence, Taking into Account thethe Vote of thethe Jurors under Certain Circumstances; Change ProvisionsProvisions Relating Relating to the Requirement of a Jury FindingFinding ofAggravating ofAggravating Circumstance and Recommending the Death Penalty;Penalty; Provide forfor an Effective Date and Applicability; Repeal Conflicting Laws; andfor for Other PurposesPurposes CODE SECTIONS: O.C.G.A. § 17-10-31,17-10-31,-31.1 -31.1 (amended) BILL NUMBER: HB 185 SUMMARY: The bill would have amended the current Georgia Code regarding sentencing procedures in criminal trials. The bill would have modified the number of juror votes required to impose a death sentence in death penalty cases. The bill would only have affected the sentencing phase of criminal trials, not the guilt-innocence phase. The bill sought toto provide judges with the ability to sentence defendants toto either lifelife imprisonment, lifelife without parole, or death, when tenten members of thethe jury vote for death asas thethe sentence.sentence. The amendment would havehave changedchanged the law fromfrom requiring aa unanimousunanimous jury vote for thethe deathdeath penaltypenalty to allowing aa ten-memberten-member vote of the juryjury to be sufficient to sentence aa defendant toto death.death. EFFECTIVEEFFECTIVE DATE:DATE: N/A Published by Reading Room, 2007 61 1 HeinOnline -- 24 Ga. St. U. L. Rev. 61 2007-2008 Georgia State University Law Review, Vol. 24, Iss. 1 [2007], Art. 4 62 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 24:61 History On November 8, 1999, 22-year-old Whitney Land and her 2-year­2-year- old daughter Jordan were abducted in Land's car and shot!shot.' Their bodies were placed in the trunk and the car was burned.22 After one trial postponement and one mistrial, a jury in a third trial found Wesley Harris guilty of the double murder. 3 The prosecutor, Gwinnett District Attorney Danny Porter, sought the death penalty for the double murder.4 He said the case was the "strongest for the death penalty that I have ever tried.,,5tried.",5 The jury did not agree: ten jurors voted for the death penalty, and two voted against the death 6 penalty.penalty.6 Since the jury was not unanimous, Harris was sentenced in7 accordance with Georgia law to life without the possibility ofparole.of parole. 7 The ten jurors who voted for the death penalty saw the verdict as an injustice, and began to campaign to change the death penalty law in Georgia. 8 Representative Barry Fleming (R-117th)(R- 117th) responded to their activism by introducing a bill that would reduce the number of jurors needed to impose the death penalty sentence, from a unanimous needed to impose9 the death penalty sentence, from a unanimous twelve to nine. 9 Representative Fleming cites another case as a reason for his legislation: a defendant found guilty of murdering an Augusta police officer was given the death penalty in two trials before a non­non- unanimous jury assigned him a life sentence in a third trial. lO1° He says, 1. Lateef Mungin, Death Sentence "Stolen,""Stolen, " Angry Jurors Say, ATLANTA J.-CONST., Nov. 13, 2005, at El,EI, available at 2005 WLNR 18338371. 2. Id[d. 3. [d.Id. 4. Id. 5. Lateef Mungin, Sentence forfor Killer Sparks Rage, Relatives of Slain Mom, Toddler Call Life Without Parole Too Lenient, ATLANTA J.-CONST., Nov. 9, 2005, at D3, available at 2005 WLNR 18082356. 6. Id.[d. 7. Id;[d.; see also infra text accompanying notes 41-50 (outlining current Georgia lawlaw regarding the death penalty). 8. See LateefLateefMungin, Mungin, Gwinnett Murders Created Activists, ATLANTA J.-CONST., Feb. 11,2007,11, 2007, at AI, available at 2007 WLNR 2706753. 9. See id. 10. Id;[d.; see also Telephone Interview with Rep. Barry Fleming (R-117th) (Apr.(Apr. 23, 2007) [hereinafter Fleming Interview]. https://readingroom.law.gsu.edu/gsulr/vol24/iss1/4 2 HeinOnline -- 24 Ga. St. U. L. Rev. 62 2007-2008 : CRIMINAL PROCEDURE Sentence and Punishment: Amend Article 2 of C 2007]2oo071 LEGISLATIVE REVIEW 63 "in that case, one juror overruled the decisions of 35 other jurors."'jurors.,,11 Representative Fleming says that district attorneys have informed him of at least sixteen cases where "hold-out" jurors caused the withholding of the death penalty.12penalty. 12 He suspects that there may be at least twice that many.13 He stated that his bill seeks to address these least twice that many.13 He stated that his bill seeks to address'1 4 these situations and is "narrowly tailored to fit a narrow problem."problem.,,14 National Death Penalty Response HB 185 was considered in light of national trends that may indicate that America is becoming less supportive of the death 5 penalty.penalty.' IS According to the Death Penalty Information Center (DPIC), which compiles statistics on capital punishment, two states have imposed formal moratoria on the death penalty; executions in New York are on hold after the state's death-penalty law was declared unconstitutional in 2004; eleven other states, most recently Florida and Tennessee, have effectively barred the practice because of concerns over lethal injection; and eleven more are considering either moratoria or repeals.'repeals. 166 The raw numbers of executions and death sentences in the United States have plummeted: DPIC statistics show that, in 1999, states executed ninety-eight people, and, in 2006, that number dropped to fifty-three, a ten-year low. 17 American judgesjudges and juries condemned about 300 prisoners a year to death through the 1990s.11990s.' 88 That number has now declined by over half, hitting a low of 128 in 2005.'92005. 19 Public support also seems to be faltering. A 2006 ABClWashingtonABC/Washington Post Poll showed that two-thirds of Americans still 11.II. Mungin, supra note 8. 12. See Fleming Interview, supra note 10. 13. See Video Recording of House Proceedings, Mar. 20, 2007 at I hr., 56 min., 58 sec. (remarks by Rep. Barry Fleming (R-i(R-117th», 17th)), http://www.georgia.gov/00/article/0,2086,4802_6107103_72682804,00.htlrdhttp://www.georgia.gov/00/artic1e/0,2086,4802_61071 03 _72682804,OO.html [hereinafter House Video]. 14. House Video, supra note 13, at 2 hr., 13 min., 28 sec. (remarks by Rep. Barry Fleming (R­(R- 117th)).I 17th». 15.IS. See DEATH PENALTY INFO. CTR.,eTR., FACTS ABOUT THE DEATH PENALTY (2007), available at http://www.deathpenaltyinfo.org/FactSheet.pdf.http://www.deathpenaltyinfo.org!FactSheet.pdf. 16. Id. 17. Id. 18. Id. 19. Id. Published by Reading Room, 2007 3 HeinOnline -- 24 Ga. St. U. L. Rev. 63 2007-2008 Georgia State University Law Review, Vol. 24, Iss. 1 [2007], Art. 4 64 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol.|Vol. 24:61 2o endorse capital punishment for murderers.20 But for the first time in twenty years, when given the choice between a life sentence without parole and the death penalty, more peo~lepeople preferred the life prison term to capital punishment, 48% to 47%. 21 However, most polls show that Americans continue to support the death penalty.22penalty.22 A separate poll asked, "[i]n"[iln your opinion, is the death penalty imposed: too often, about the right amount, or not often enough?,,23enough?, 23 Fifty-one percent of respondents said "not often enough" and 25% said "about right.,,24right."24 The sum of 76% for current or tougher capital sentencing has been steady in a narrow range of 71-77% for the five years Gallup has been asking this question?5question.25 "This poll confirms that the American people are not turning away from the death penalty," said Kent Scheidegger, legal director of the California-based Criminal Justice Legal Foundation, which supports 26 capital punishment.