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Death penalty opponents see Friday’s Georgia Supreme Court decision striking down electrocution as the first step in doing away with capital punishment entirely. The court preserved lethal injection to execute the condemned, but defense lawyer Thomas M. West says opponents are already planning a legal attack on that method of execution. “I’m going to start challenging lethal injection,” he says. “I mean, come on.” West represents Timothy Carl Dawson in one of two consolidated cases the Georgia Supreme Court used Friday as a vehicle to declare the state’s use of electrocution “cruel and unusual” under Art. I, � I, Par. XVII. Dawson v. State, No. S01A1041, Moore v. State, No. S01A1210 (Sup. Ct. Ga. Oct. 5, 2001). Justice Carol W. Hunstein wrote the opinion, which held that “[D]eath by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the prohibition against cruel and unusual punishment.” The court split 4-3 on the issue, with Justices George H. Carley and P. Harris Hines joining Justice Hugh P. Thompson in a thundering dissent accusing the court of “[using] judicial power to transform [its] preferences into constitutional mandates.” Hunstein widely has been thought to be the swing vote on the electrocution issue. Though she never intimated her point of view in any written opinions, she joined with the majority granting stays in other executions while the issue was pending. Then, in another death penalty decision the court handed down last Monday, Hunstein joined with Justice Leah Ward Sears in a dissent calling electrocution cruel and unusual. Rhode v. State, No. S01P0708 (Sup. Ct. Ga. Oct. 1, 2001). Attorney General Thurbert E. Baker said in a statement he was “extremely disappointed” with the decision but saw no chance of appealing to the U.S. Supreme Court. “The Georgia Supreme Court has the final say on interpreting the Georgia Constitution, and there is simply no further appeal that can be taken.” By relying exclusively on the Georgia Constitution, and on state case law, the court effectively insulated its ruling from federal review, says Donald E. Wilkes, professor of criminal law and procedure at the University of Georgia School of Law. “This is a landmark decision,” he says. “This is an ethical decision.” Georgia State University School of Law Professor Anne S. Emanuel says the court deliberately based its decision solely on state law. “It’s very conscious and it’s also very responsible,” she says. “It’s a state law question in the first instance.” SOURCE OF DECISION The court’s opinion stemmed from orders in two separate cases. In Dawson’s case, Fulton Superior Court Judge Wendy L. Shoob became the first Georgia judge to declare death by electrocution cruel and unusual. Dawson is accused of robbing and murdering three men at the Atlanta Hilton and Towers in 1998. In the case of Carzell Moore, Senior Superior Court Judge Arthur W. Fudger ruled that the electric chair was constitutional. Moore is facing resentencing for the 1976 rape and murder of 18-year-old college student Teresa Allen. Such challenges to the death penalty increased following the Georgia Legislature’s amendment to O.C.G.A. � 17-10-38, which established lethal injection as the means of execution for those condemned as punishment for crimes committed after May 1, 2000. Those sentenced to death for crimes committed before then would continue to face death by electrocution. Hunstein wrote that the court “was influenced greatly” by the amended code, as the “clearest and most objective evidence of how contemporary society views a particular punishment.” A shifting law indicates a shifting societal consensus, Hunstein wrote, citing Fleming v. Zant, 259 Ga. 687, 690 (3) (386 SE2d 339) (1989). The Fleming case establishes that courts should consider the “evolving standards of decency that mark the progress of a maturing society,” when evaluating a means of execution. Southern Center for Human Rights Director Stephen B. Bright says he made an intentional effort to give the court a basis in state law for its finding. If the court ruled for the defendants, he says, he wanted to protect the court’s decision from federal review. “We told them ‘ Fleming and the Georgia Constitution are all you need,’ ” he says. “ Who knows what the U.S. Supreme Court might have done?” The evolving standards Fleming mentions, Hunstein wrote, do not permit the state to continue killing the condemned in the electric chair. She noted that evidence from the state and the defense indicated that the bodies of the executed are burned and blistered, and that their brains cook at temperatures between 135 and 145 degrees Fahrenheit. What she called the “mutilation” of the prisoner’s body occurs even when the executioner applies the method properly. “The evidence adduced in the record in Moore reveals uncontrovertedly that the bodies of condemned prisoners in Georgia are mutilated during the electrocution process,” she wrote. The state had argued that the proper standard for the court to use in determining whether electrocution is unconstitutional is whether the prisoner feels unnecessary pain. Hunstein wrote that determining the level of pain in an electrocution is impossible. However, the Georgia standard is not limited to the pain of the condemned, she wrote. “Such a limited focus would lead to the abhorrent situation where a condemned prisoner could be burned at the stake or crucified as long as he or she were rendered incapable by medication of consciously experiencing the pain,” Hunstein wrote. DISSENTERS BLAST MAJORITY In his dissent, Justice Thompson said the court’s decision “reflects not the evolving standards of decency of the people of Georgia, but the evolving opinion of the majority members of this Court.” He accused the majority of usurping the power of the people of Georgia, embodied in the General Assembly. “The means by which we impose the ultimate criminal sanction speaks volumes about our values and our sense of decency, and this is precisely why the legislature, which is constituted to embody these values, has the primary role in this area,” he wrote. “There is no guillotine in this country or burning at the stake because the people through their elected representatives will not have it, not because the courts have told the people it violates their values.” Thompson dismissed the majority’s reliance on the amendment to the Georgia Code, arguing that the change does not indicate a shift in popular attitudes away from electrocution. “This argument is illogical and ironic. If the General Assembly sought to abolish electrocution as a method of execution, it could have done so,” he wrote. “It could have established lethal injection as the sole means of execution for all condemned inmates in this state but it did not.” NEXT STEP AWAY FROM EXECUTION Some death penalty lawyers already are planning their challenges to lethal injection on grounds that it, too, is cruel and unusual. Multicounty Public Defender B. Michael Mears says there may be “as good an argument — if not a better argument that lethal injection is cruel and unusual.” “We are prepared to go forward in several cases with an evidentiary hearing on this issue — if the courts will allow one,” Mears says. “There are some very serious problems with lethal injection.” Mears says he has records from about 30 botched lethal injections nationwide. The most common problem, he says, is an inability to mix the dosages of the poisons properly. In some cases, a prisoner might be paralyzed for several minutes before dying. West says the Moore and Dawson cases set the standard for future challenges to methods of execution. While the court has permitted the state to use lethal injection for the time being, he says, “[t]hey leave the door open to an inquiry, as to are there less brutalizing, less mutilating, less painful methods of execution available.” Moore’s lawyer Althea Buafo of Buafo & Associates in Macon, Ga., says, “At some point lethal injection will be thoroughly challenged.” Georgia State’s Emanuel says those challenges are inevitable, but probably won’t meet with much success. “I think there will be challenges,” she says. “But to the extent that those challenges claim lethal injection is cruel and unusual, I don’t think they will be viable.” Buafo and Bright say the death penalty continues to be vulnerable to challenge on grounds other than the method of execution itself. These include the quality of defense available to the poor and minorities, jury selection, the use of informants, racial discrimination, and disproportionate application of the death sentence from circuit to circuit. “Every procedural safeguard must be followed,” he says. “Or we’ll continue to see these disparities.” In a special concurring opinion, Justice Sears notes that Friday’s ruling says nothing at all about the validity of death sentences for certain crimes. The ruling, for example, does not void the death sentences for those condemned to die in the electric chair. The state simply will switch the method to lethal injection. “Notwithstanding the rhetoric of some, the point must not be lost that the efficacy of Georgia’s death penalty statute is not diluted one bit by today’s opinion, and the punishment of death remains an available sentence under the law,” she wrote. But West says Friday’s ruling is a victory in a much larger war. “I hope we will eventually reach the conclusion that there are no methods that are acceptable,” he says.

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