DAs may get death penalty alternative

Defense attorneys say it as a matter of fact. And some prosecutors don’t deny it.

That is, district attorneys often mount costly death penalty prosecutions when they would be more than satisfied with sentences of life in prison without the possibility of parole.

“It happens more often than the public would ever imagine,” said John Marshall Law School professor Mike Mears, who has defended dozens of death penalty cases.

Under Georgia law, the only ways to lock up a murderer for good is for a DA to seek death, or to get a murder conviction against a defendant who had a prior violent felony conviction.

Legislation moving through the General Assembly would give district attorneys the option of seeking a life without parole sentence without having to seek the death penalty to get it.

Senate Bill 13 already has cleared the Senate by a unanimous vote. House Judiciary Non-Civil Committee Chairman Rich Golick (R-Smyrna) said he has scheduled a hearing for today and predicted its ultimate passage.

Senate Judiciary Committee Chairman Preston Smith (R-Rome), the bill’s chief sponsor, said the legislation closes “a gaping hole in Georgia law.”

Once a DA files a notice to seek death, the sentencing options are death, life without parole or life with the possibility of parole. It sets in motion a lengthy pre-trial process that requires two qualified defense attorneys.

“It triggers a time-consuming, expensive process in many cases where life without parole is the more appropriate sentence,” Smith said.

The bill also provides for more severe sentences. It would allow for a life-without-parole sentence when a noncapital murder case currently gets life with the possibility of parole. For this reason, some defense attorneys oppose the bill.

But Smith said prosecutors need that option, too. “There are cases where the law does not allow a death penalty prosecution but where you would not want the murderer back out on the streets,” he said.

There are more than 65 death penalty cases pending in Georgia, said Jerry Word, who heads the state capital defender office. The cost of defending a capital case is at least $100,000 and often can be much more, and that does not include prosecution and court costs, he said.

Gwinnett County District Attorney Danny Porter said the bill will restore integrity to the justice system.

“We won’t have to go through the charade of seeking the death penalty to get life without parole when we think life without parole is the appropriate sentence,” he said.

Douglas County District Attorney David McDade said the bill is the Georgia District Attorney’s Association’s top legislative priority. “It will enable us to bring closure and finality to victims’ families in certain murder cases.”

Others who support the bill say it may help Georgia make good on its promise to ensure fairness in the application of the death penalty.

“The life without parole bill, if used appropriately, will protect society and help to diminish the arbitrariness of the death penalty by allowing prosecutors to only seek death when the facts and circumstances are truly extraordinary,” said Tom Dunn, head of the Georgia Appellate Practice and Educational Resource Center, which handles death row appeals.

The Atlanta Journal-Constitution, in a series published in 2007, found that Georgia’s death penalty is arbitrarily imposed. The AJC researched 2,328 murder convictions and found this was particularly true for murders that qualified for death but were not among the most heinous and vile.

The AJC also found that DAs, after seeking death, were more than willing to allow a plea bargain. Of the 344 cases in which DAs sought the death penalty from 1995 through 2004, they allowed 210 defendants —- more than 60 percent —- to enter guilty pleas. Of those, 115 defendants agreed to sentences of life without parole.

Don Samuel, head of the Georgia Association of Criminal Defense Lawyers’ legislative committee, said the group’s members are divided on the bill.

“If DAs will use this option rather than seeking the death penalty in cases that don’t warrant it, many see that as a great thing,” Samuel said. But the criminal defense bar also is concerned DAs will seek life without parole in “routine” murder cases, he said.

In Georgia, a convicted killer must serve at least 30 years of a life sentence before being eligible for parole. For many murder defendants, that is essentially life without parole, Samuel noted. This may mean more murder trials because many defendants will not have much to lose with regard to the ultimate sentence they get, he said.

Staff writer Heather Vogell contributed to this article.