Is the review process fixable?

Critics charge the Georgia Supreme Court's proportionality review would still be useless if the court stopped citing overturned cases.

Defense lawyers have repeatedly complained the state's highest court conducts a narrow review that cannot determine whether a death sentence is truly out of line when compared to other similar cases. But the court has refused to expand its review.

After Georgia reinstated capital punishment in 1973, the court conducted a far more extensive review of death sentences, comparing them with similar cases in which killers received life in prison. Through 1981, the court reversed 10 death sentences on proportionality grounds.

But with rare exceptions, the court more than 20 years ago dropped life sentences from its pool of comparison cases. The court has not thrown out a death sentence on proportionality grounds since 1981.

By excluding life sentences, critics say, the court cannot know when a death sentence is out of line.

For a husband who kills his wife in a fit of rage, for example, the court's review looks for similar cases that also received a death sentence. But the court would not know how often juries imposed life sentences in such cases or how many times prosecutors had not sought death at all.

"It's simply not meaningful because the court never looks to see whether there are similar or worse cases in which death was not given," said Amy Donnella, a Pennsylvania lawyer who litigates death cases in Georgia.

Chief Justice Leah Ward Sears said the court must rule whether the facts of a particular murder warrant the death penalty. If they do, she said in a statement, it does not matter whether other murderers whose crimes were equally severe escaped the death penalty.

Georgia's statute does not require comparing a death sentence with others that received life. It says the court must determine whether a death sentence "is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

In January 2006, an American Bar Association team of former judges and prosecutors, law professors and defense lawyers described Georgia's proportionality review as "cursory" with "limited value."

The team said Georgia should compare death sentences with a much larger pool of cases, including those in which death was never pursued. Until it does, the review is "incapable of discovering potentially serious disparities," the report said.

Rome attorney Norman Fletcher, who served 15 years on the court, said he became concerned as chief justice about inequities in seeking the death penalty.

"Some [crimes] were so awful and the DAs didn't seek it," he said. "Some that got death sentences shouldn't have been there."

Fletcher said a clerk helped him look for a better way to conduct reviews. But they could not come up with a reliable process to distinguish more aggravated murders from less heinous ones, he said.

"There was no single person on the court with staff or time to actually ferret out every possibility and come up with a new formula that would help to weed out the cases that shouldn't proceed as death penalty," he said.

Fletcher expressed his frustration in a 2002 opinion, in which he acknowledged the court did not know whether its review cited a large or small percentage of factually similar cases.

"Perhaps," Fletcher concluded, "the process for determining whether a sentence is disproportionate can be improved and, if so, then it should be done."