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Diann Rust-Tierney

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Georgia's Death Penalty: Unequal and Unresponsive

Posted: 10/04/11 03:04 PM ET

The U.S. Supreme Court and the country have grappled with the central question of how to administer the most severe punishment imaginable in a manner that is accurate, free from bias and demonstrably fair.

Not coincidentally Georgia has been at the center of this inquiry. First in 1972, the Supreme Court ruled that the Georgia death penalty and statutes like it failed to provide enough guidance to prevent death sentences from being imposed as arbitrarily as being struck by lightning.

Then in 1976, Georgia ushered in the modern death penalty when the Supreme Court approved a series of "guided discretion" statutes which were supposed to provide assurances that the death penalty would be reserved for the worst crimes and the worst offenders and that racial bias would not infect the process.

Ten years later, the Georgia system was challenged again when death row prisoner Warren McCleskey asked the Supreme Court to intervene because defendants charged with the murder of white victims were more than four times likely to be sentenced to death. Although the Court did not deny that the pattern of sentencing existed, it declined to grant relief, suggesting it was not its place to rule in McCleskey's favor because the punishment enjoyed the support of the public.

Now, the spectacle of Troy Anthony Davis's execution brings us full circle. Despite the promise to ensure that the guilty are not punished along with the innocent -- the question answered by the Board of Pardons and Parole and Georgia officials was apparently: how much doubt is too much before we can proceed with an execution?

As the world watched, we saw closely the workings of a system many assumed operated fairly. As deeply troubling as it was to observe the indifference of the Georgia justice system to a compelling case of innocence, it was a rude awakening to feel that the Georgia system was equally indifferent and unresponsive to concerns expressed by millions of Georgia citizens, people across the nation and the world. What is democracy if the publics' expressed intentions about an act being done in our name is patently and blatantly ignored? Who does the Board of Pardons and Parole represent? Whose fearsome law is being implemented if not the people's?

It is because little improvement has been seen in the accuracy, reliability and fairness of the death penalty system in the last 35 years, that we have seen a decline in support, as reflected in fewer death sentences sought by prosecutors and returned by juries. Most states that have the death penalty are actively engaged in efforts to review the practice to determine how and whether to continue it. In recent years four states, New Jersey, New Mexico, Illinois and New York, engaged that assessment have either repealed their death penalty statute or declined to make it enforceable.

What happened in Georgia was a moment of great sadness and disgrace, a defining moment for the death penalty in that state and across the nation.

Once before, shock and revulsion at the execution of Jerome Bowden, a man with mental retardation and a 70 IQ caused Georgia citizens to mobilize to outlaw executions for people with mental retardation. Decades later the Supreme Court finally ruled it unlawful in 2002.

Today, shock at the execution of Troy Davis amid so much doubt about his guilt has already created a broad, politically and racially diverse surge of new people ready to work to end the death penalty. Communities are engaged as never before.

The Georgia that ushered in the modern experiment of capital punishment in 1976 has now crossed a line that people on both sides of the debate thought was a bright line of protection. It matters whether the person being put to death is guilty of the crime for which he or she is sentenced to die. And when there is doubt about guilt, the death penalty is always the wrong decision.

By crossing this threshold the state of Georgia may yet have made its most important and noble contribution to this nation's 35-year death penalty saga. September 21, 2011 at 11:08 pm, the moment when Troy Davis was executed, will likely be remembered as the moment when the catalytic spark for ending the death penalty once and for all was struck.