A bill approved unanimously in the state legislature last week could have a dramatic effect on future murder prosecutions in Georgia.
The bill will allow district attorneys to seek life without parole against murder defendants without seeking the death penalty.
In Georgia, there are just two types of murder prosecutions: death penalty cases and everything else. Only in cases in which the death penalty is sought can a defendant be sentenced to life without the possibility of parole.
In the more common "standard," non-death penalty murder cases, the only sentencing option if a defendant is convicted of murder is a mandatory term of life in prison with parole eligibility after 30 years. In many cases, convicted murderers are never paroled after becoming eligible.
The new statute, expected to be signed into law by Gov. Sonny Perdue, was lobbied for by the Prosecuting Attorneys Council of Georgia and the Georgia District Attorneys' Association.
Hall County District Attorney Lee Darragh said the result of the law's passage could be twofold: fewer death penalty cases, and more murder defendants pleading guilty to avoid sentences of life without parole.
Death penalty cases are known to be drawn-out and expensive, with pretrial proceedings that can take years to complete before the cases ever go to trial. But in the past, seeking death was the only avenue for prosecutors to try to prevent even the remote possibility of a convicted killer being paroled.
Darragh, in a death penalty case tried last year, appeared to argue more strenuously for life without parole than the death penalty for a co-defendant in the murders of two cocaine traffickers. Ignacio Vergara, who did not fire the shots that killed the two men, was ultimately sentenced by a jury to life without parole.
"There have been cases throughout the state where the death penalty was sought in order that the sentence of life without parole could be imposed," Darragh said this week. "Potentially, this law could result in fewer notices of intent to seek the death penalty being filed, in that, in some cases, life without parole may be the more appropriate sentence."
Darragh also believes the added bargaining tool of being able to seek life without parole without seeking death could result in more negotiated guilty pleas. Prosecutors could agree not to seek life without parole against a defendant in exchange for a guilty plea to murder.
"Because of the passage of this statute, there is a possibility of fewer murder trials having to take place, but that is speculative," Darragh said.
Mike Mears, an associate dean of Atlanta's John Marshall Law School who has experience in more than 100 death penalty cases in Georgia, agrees there may be fewer capital cases, but worries about "unintended consequences" of the legislation.
"I'm glad to see any legislation that takes the death penalty off the table, but I have some major concerns, particularly given the legislature's lack of commitment in funding the public defender system," said Mears, former director of the Georgia Public Defender Standards Council.
Mears doesn't think prosecutors will be willing to take life without parole off the table in plea negotiations, leading more defendants to take their cases to trial rather than plead guilty.
"I just don't think the prosecutors are going to be willing to bargain down to life with the possibility of parole," he said.
Told of Darragh's comments, Mears said, "I hope Lee Darragh does that, but I just don't read most prosecutors in this state as being that flexible. I hope I'm wrong."
Veteran criminal defense attorney Dan Summer agrees with Darragh that there could be more murder cases that plead out rather than go to trial. But he doesn't necessarily see that as a good thing.
For murder cases that do go to trial, "I anticipate you're going to see a dramatic increase in prosecutors seeking life without parole, at least initially," Summer said. "That might result in more defendants pleading guilty in homicide cases. Which is all well and good, unless there are legitimate issues in the case."
Murder defendants who could claim self-defense or other extenuating circumstances may feel more pressure to plead guilty with the spectre of life without parole hanging over them, Summer said.
While the new law may save taxpayers money in time-consuming and costly death penalty cases, "the flip side is it might lead to some people pleading guilty when they otherwise would have exercised their right to go to trial," Summer said.
Summer and Mears both agree that the law could put superior court judges "in the hot seat" when it comes to deciding the sentences in murder cases. In death penalty cases, the jury decides the sentence. In today's standard murder cases, life with the possibility of parole is a Georgia judge's only option for a murder conviction.
Soon, the state's judges will increasingly be asked to decide between life with or without a chance of parole for defendants convicted of murder.
"I can see the judges being put in a tight position," Summer said.
Said Mears, "As long as we have elected judges, I think they're going to be in the same position as elected district attorneys" when it comes to decisions on sentences.
Darragh said one thing the law won't do is eliminate death penalty cases.
"There will continue to be cases in which the death penalty should be sought and imposed," he said.
Summer said the legislation adds yet another arrow in the state's quiver. In recent years, laws passed in the statehouse put the prosecution and defense on equal footing during jury selection and gave the state the last word in closing arguments.
"The district attorneys have the upper hand," Summer said. "Most of the laws passed in the last 10 years have been decidedly pro-prosecution."
Darragh said the new law could provide solace to the survivors of victims of crimes which did not qualify for the death penalty under the law.
"Families of victims will likely be happier with the prospect that the killers of their loved ones could potentially never see the light of day even where the death penalty is not sought," Darragh said.