Georgia’s Death Penalty Reform Bill Has an Odd View on Life Sentences

Georgia is on the brink of reforming its death penalty law for intellectually disabled defendants, a move being heralded as a long-overdue protection that brings the state more in alignment with the rest of the country. Georgia is the only state that requires a defendant’s intellectual disability be proved “beyond a reasonable doubt” in order to exempt them from the death penalty, a sentence that the Supreme Court has ruled an Eighth Amendment violation—cruel and unusual punishment—in those cases. According to Death Penalty Information Center, in the 37 years since Georgia implemented the law no one charged with intentional homicide—known here as “malice murder”—as has ever satisfied that requirement.

Under HB 123, a defendant’s intellectual disability will only have to be demonstrated by a “preponderance of evidence,” a more realistic standard. The bill passed almost unanimously, receiving a standing ovation from legislators and a great deal of praise from the media. It was sent to Governor Brian Kemp (R) on April 8. He has until May 18 to sign or veto, or do neither and let it become law without his signature.

If HB 123 does become law, then when a defendant is deemed intellectually disabled they will receive a life sentence in Georgia Department of Corrections (GDC) custody. Which raises the question: If Georgia can’t sentence intellectually disabled people to death because that would be cruel and unusual punishment, why can it sentence them to life?

An extensive federal investigation into the rising deaths inside GDC prisons found that the conditions here violate the Eighth Amendment. Obviously one can appreciate the difference between being executed by the state and being strangled to death by one’s cellmate, as well as the fact that the death penalty is unjust. But locking intellectually disabled prisoners in this environment until they die doesn’t seem justifiable either, if it’s to shield them from cruel and unusual punishment.

Most lifers with the possibility of parole aren’t getting out any sooner than those without parole.

The original version of the bill proposed only that if a defendant is found to be intellectually disabled, then the “death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.” As the bill worked its way through the Senate, an addition was tacked onto the end of that sentence: “… or imprisonment for life without possibility of parole.” Apparently to make prosecutors feel better about it.

Yet there is less and less difference between the two sentences. 

When I began my sentence in the early 1990s the mandatory minimum for a life sentence for was seven years, though no one was expecting to actually parole out that soon. In 1995 it was raised to 14 years. In 2006 it was raised to 30 years. Each new minimum isn’t supposed to apply to people whose “crime commit date” predated it then, but ask all of us here who’ve been parole-eligible since the ’90s how that’s working out.

More than 20 percent of Georgia’s prison population is now serving a life sentence of some kind, and most lifers with the possibility of parole aren’t getting out any sooner than those without parole.

Georgia’s “malice murder” law exists to justify life and death sentences alike by saying that the defendant’s actions “show an abandoned and malignant heart.” It is the state that has repeatedly shown that moral turpitude, in its treatment of the 52,603 people currently in its custody.

Prosecutors inclined to pursue the death penalty against intellectually disabled defendants don’t have to worry about those them getting out of GDC alive unless parole is removed from the equation. To parole out they’d first have to survive 30 years in here, or whatever the new mandatory minimum is up to by then, as surviving becomes more and more difficult to do. But they wouldn’t actually make parole if they did survive long enough; prosecutors know that. Hope is what’s being removed from the equation, that’s all.

Image (cropped) via Georgia Department of Corrections/YouTube