'Backlog' death-penalty rationale fatally flawed

By Cara H. Drinan
For the Journal-Constitution
Published on: 05/16/08

On April 16, the U.S. Supreme Court upheld the constitutionality of lethal injection. Before the ink on the court's opinion was dry, officials in Virginia, Texas, Florida and Oklahoma set in motion plans to execute inmates whose deaths had been on hold.

Three weeks later, Georgia became the first state in the nation to resume use of the death penalty when it executed William Earl Lynd —- part of what a spokesman for the Georgia attorney general's office called an attempt to clear "the backlog."

In light of the recent release and exoneration of death row inmates in North Carolina and Texas, the sense of urgency driving these states is both perplexing and troubling —- and in the case of Georgia, whose indigent defense system is collapsing, it's downright embarrassing. Officials in these states should be focused not on clearing execution backlogs but on whether their death row inmates received effective assistance of counsel.

In the wake of several lawsuits, in 2003 Georgia created its statewide indigent defense system, which was lauded at the time as an example of the type of system the American Bar Association recommends. But only five years after its creation, the fledgling system is a shambles. A 2006 ABA report found Georgia's capital defense services so flawed that the organization called for a moratorium on executions and capital prosecutions until the state could study and remedy those defects. Two years later, those flaws, including inadequate funding and failure to provide counsel for post-conviction appeals, not only remain but are metastasizing. The now-infamous case of Brian Nichols (who killed a judge, a court reporter and two law enforcement officers while being retried for rape in 2005) has cost taxpayers $2 million in defense costs alone, and the trial has not even begun. Moreover, the judge initially presiding over the Nichols trial was threatened with impeachment for unpopular pro-defendant funding decisions.

Despite his resignation for other reasons, the incident exposed a lack of judicial independence in Georgia and what Stephen Bright of the Southern Center for Human Rights called a threat to "the rule of law."

Other indigent defendants in Georgia have paid a heavy price for what the state has devoted to the Nichols trial. In 2007, the statewide defender system was forced to seek an emergency appropriation from the Legislature to remain operational; capital trials were put on hold; and capital defenders began to flee the system in the face of reduced compensation and excessive case-loads.

In short, as Carmen Hernandez of the National Association of Criminal Defense Lawyers said, "Georgia has refused to fund its system and, as a result, Georgia's system is once again broken. . . . It has gone from leading light to disgrace in a few short years."

It is ironic that Georgia won the race to resume executions, but the state is certainly not alone in its indigent defense funding crisis. In the last year, Arizona, Texas, Louisiana and Utah have all experienced attorney shortages as a result of their inability to fund capital-defense services adequately.

Elected officials in states that allow capital punishment must accept the fact that these funding crises are not a short-term phenomenon. Recent Supreme Court case law has only bolstered a capital defendant's right to special safeguards at trial, and as a result of these safeguards, capital cases cost anywhere from 40 percent to 70 percent more than nondeath cases.

There is only one meaningful way for these states to contain the costs of indigent defense in the long run: to replace the death penalty with life without parole, as New Jersey has recently done. Before abolishing its death penalty, New Jersey conducted an exhaustive study of the costs and benefits of keeping execution on the books. By doing so, legislators were able to satisfy their constituents that the death penalty simply was not worth its prohibitive price tag.

Georgia and the other states that are expeditiously trying to clear their death row calendars could learn a lot from the elected officials in New Jersey. Rather than acting in haste, lawmakers in these states should call for a moratorium on the death penalty so that its costs and benefits can be evaluated in a circumspect manner.

Cara H. Drinan is an assistant professor of law at the Catholic University of America in Washington.