On Thursday, the state of Georgia is set to execute a 58-year-old man for a crime that would not receive the death penalty today. Jimmy Meders was convicted of murder and sentenced to die for the October 1987 killing of a convenience store clerk during a robbery. His lawyers want the state parole board to convert his sentence to life without the possibility of parole, arguing that’s what the jury would have chosen if given the chance, and what he would receive today.
Meders was sentenced in 1989, four years before life without parole became a sentencing option in capital cases. “An analysis by Meders’ attorneys of Georgia cases for which the death penalty was sought between 2008 and 2018 shows that in cases like his, with a single victim and few aggravating factors, juries don’t choose the death penalty today,” writes Kate Brumback for the Associated Press. Additionally, “prosecutors rarely seek the death penalty now in cases like his.”
The State Board of Pardons and Paroles, which is the only authority in Georgia that can commute a death sentence, plans to hold a closed-door clemency hearing tomorrow. David Bruck, who has defended capital cases and is now a professor at Washington and Lee University School of Law, believes that it defies logic and morality to carry out executions for crimes that no longer get the death penalty. “When people talk about the arbitrariness of the death penalty, this is what they mean,” Bruck told the Atlanta Journal-Constitution. “The actual behavior of prosecutors and juries over decades have shown that single-victim armed robbery murders are not enough to merit the death penalty.” In a case like this one, he said, “It’s like a person who’s the loser in a ghastly lottery.”
But longtime Gwinnett District Attorney Danny Porter is not convinced that these arguments are at all relevant. “I don’t think it makes sense logically to apply future events to the things that happened in the past,” said Porter, who was not involved with the case. “It doesn’t mean this case didn’t deserve it, for whatever particular circumstances that led the jury to give the death penalty.”
This statement might appear simply callous but it’s an articulation of a belief: Even when norms shift, culpability does not. A person who was, at one point, found deserving of a punishment still deserves that punishment even when society would no longer mete it out. By that logic, Robert-François Damiens, who was convicted of attempted regicide in mid-18th century France, would still deserve to be drawn and quartered if convicted today, and women long ago found to be unfaithful should still be stoned to death.
Can this possibly be right? If a person knows the potential punishment, however draconian, and violates a rule anyway, do they deserve the punishment? If part of reform is acknowledging that decision-makers made mistakes, and those punishments were arbitrary and unjust, it seems like a difficult case to make. An unjust punishment can never be deserved.
And what about those who abused with impunity in the past but are now, slowly, beginning to be held to account, such as contemporary pharmaceutical executives and people who led lynchings in the Jim Crow South? Did they deserve their impunity?
Drug offenses pose an even clearer example of how unfair it is to impose outdated punishments. The Project on Accountable Justice, a nonpartisan group housed at Florida State University, have recently analyzed an estimated 935 prisoners who are serving mandatory sentences of 15 and 25 years. The Florida Legislature has since eased the penalties for these crimes, so if these people were convicted of the same crimes today, many would receive a fraction of their current sentences.
In Florida, not only have the sentences changed, but voters specifically empowered the legislature to apply current sentencing laws to old cases, when they passed Amendment 11 by referendum in 2018. So far, lawmakers have taken no action to do so. For the 2020 session, which starts today, two bipartisan bills — one each in the House and Senate — have been filed that would allow judges to re-sentence those people.
State Senator Jason Pizzo, a Democrat from North Miami Beach and a former prosecutor, said he supports applying Amendment 11 to drug cases, because some old sentencing laws are “so far removed from what we would all legislate to be reasonable today.” But a leading House Republican recently said he opposes this move, even though voters asked for it specifically. “What the voters did, I’m thankful they gave us the opportunity to look at retroactivity but what they didn’t do is mandate it,” said State Representative Paul Renner, Republican of Palm Coast, the chair of the House’s Judiciary committee who’s also in line to be a future speaker of the House.
Other states, such as Illinois, have acknowledged the unfairness of their past sentencing by granting mass pardons. As Vaidya Gullapalli reported last week in The Daily Appeal, Governor J.B. Pritzker recently announced that he would issue 11,017 pardons to people with low-level marijuana convictions. The announcement came on the eve of the state’s marijuana legalization going into effect. As he announced the pardons at a church on Chicago’s South Side, Pritzker said, “the defining purpose of legalization is to maximize equity for generations to come.” The pardons, he promised, are only the first step in erasing the records of the hundreds of thousands of people across the state who have criminal records from low-level marijuana charges.
This is the logic behind sentence review units, groups within prosecutors’ offices that root out unfair sentences of the past and try to correct them. These would certainly be a step in the right direction, but if we acknowledge our values have changed, why should it depend on a person having the good fortune to have been incarcerated in a jurisdiction where a prosecutor is able and willing to do so? Why should it be, in the words of David Bruck, a “ghastly lottery?”
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