Georgia gave America its modern death penalty. Fifty years is long enough.

Fifty years ago, the U.S. Supreme Court decided Gregg v. Georgia, making Georgia’s rewritten statute the constitutional framework for the modern American death penalty.

Gregg was the middle act in a trilogy of Georgia cases that shaped that system. Four years earlier, Furman v. Georgia halted executions nationwide.

Georgia responded with guided sentencing, separate guilt and penalty phases, and automatic review. Gregg upheld that framework, and executions resumed. In 1987, McCleskey v. Kemp allowed a Georgia death sentence — and known racial disparities in capital sentencing — to stand.

Together, they force a question Georgia can no longer avoid: When will the state end a practice that can take an innocent life and offers no remedy when it gets it wrong?

I do not come to this question from a distance. Having spent nearly three decades in and around public institutions that make, interpret and exercise power — from state legislatures and the U.S. Congress to international parliaments and the public defender’s office in Harris County, Texas, a county long known for sending more people to the execution chamber than any other in the nation — I understand both the necessity of these systems and the fallibility inherent in them.

I have witnessed no exercise of government power more grave than the state’s administration of the death penalty.

The state must not kill the innocent

Those sentenced to death have been adjudged guilty. Serious crimes demand accountability and lawful punishment; neither point is disputed here. Neither point, however, means that the path to execution is free from error.

A conviction is a legal determination of guilt, not proof that it cannot be wrong. Appeals, post-conviction review, clemency and exoneration exist because the law recognizes that investigations, trials, verdicts and sentences can fail. That failure is not the result of uniquely bad actors — it is the condition of being human. Execution ends the time in which error can be discovered and corrected.

The risk is measurable. A peer-reviewed study in the Proceedings of the National Academy of Sciences estimated that if people sentenced to death remained under that sentence indefinitely, at least 4.1% would be exonerated. Its authors called the estimate conservative and wrote that it was “all but certain” several people already executed were innocent.

Since 1973, 202 people have been exonerated from death row; seven were in Georgia. Each lived long enough to be exonerated.

Those sentenced to death have been adjudged guilty. Serious crimes demand accountability and lawful punishment; neither point is disputed here. Neither point, however, means that the path to execution is free from error.

A conviction is a legal determination of guilt, not proof that it cannot be wrong. Appeals, post-conviction review, clemency and exoneration exist because the law recognizes that investigations, trials, verdicts and sentences can fail. That failure is not the result of uniquely bad actors — it is the condition of being human. Execution ends the time in which error can be discovered and corrected.

The risk is measurable. A peer-reviewed study in the Proceedings of the National Academy of Sciences estimated that if people sentenced to death remained under that sentence indefinitely, at least 4.1% would be exonerated. Its authors called the estimate conservative and wrote that it was “all but certain” several people already executed were innocent.

Since 1973, 202 people have been exonerated from death row; seven were in Georgia. Each lived long enough to be exonerated.

The moral imperative is equally clear. Exodus 23:7 says: “Keep thee far from a false matter; and the innocent and righteous slay thou not: for I will not justify the wicked.”

The command does not excuse the guilty. It forbids killing the innocent. Yet no government can guarantee that an error will be discovered before execution.

Troy Davis’ execution should haunt Georgia

Troy Davis’ case made that uncertainty impossible to ignore. Georgia executed him in 2011 after seven of nine key witnesses recanted or changed their testimony. No murder weapon was recovered, and no DNA evidence tied him to the crime.

Former President Jimmy Carter and former FBI Director William Sessions asked Georgia to wait. It did not. Those facts did not erase his conviction, but they left questions after trial, appeal and clemency. Execution did not resolve those questions. It made any later correction impossible.

The danger is not confined to disputed evidence. It also lies in the legal standards governing who may be executed. Since 2002, the Constitution has barred the execution of people with intellectual disability. Until 2025, Georgia was the only death-penalty state requiring defendants to prove that disability beyond a reasonable doubt. House Bill 123 lowered the burden to a preponderance of the evidence but did not make the change retroactive.

It creates no new hearing for someone whose claim failed under the old standard, leaving Georgia able to carry out a death sentence based on a determination reached under a rule it has now rejected.