Copyright © July 1996 by Human Rights Watch.
All rights reserved.
Printed in the United States of America.
ISBN 1-56432-169-X
Library of Congress Catalog Card Number: 96-77034

This report was edited by HRW program director Cynthia Brown and HRW senior researcher Allyson Collins and formatted by HRW associate Nandi Rodrigo. The authors of each chapter offer their acknowledgments below.

Police Abuse

The author, HRW senior researcher Allyson Collins, wishes to thank interviewees from the Office of Professional Standards of the Atlanta Police Department, the Georgia Bureau of Investigations, the Federal Bureau of Investigation, the U.S. Justice Department's Civil Rights Division, the Federal Public Defender's office in Atlanta, the Fulton County Public Defender's office, the Atlanta City Public Defender's office, the U.S. Attorney's offices, the Fulton County District Attorney's office and the Office of Community Affairs of Atlanta. The author would also like to thank community activists who provided valuable information and insights, and attorneys Brian Spears and George Weaver. Special thanks to the American Civil Liberties Union of Georgia and the Transactional Records Access Clearinghouse of Syracuse, New York.

Death Penalty

The author, attorney Stephen Bright, wishes to thank the entire staff of the Southern Center for Human Rights, where he serves as director. He also wishes to thank his capital punishment class at Yale Law School.

Race and Drug Law Enforcement

The author, HRW associate counsel Jamie Fellner, wishes to thank Chief Justice Robert Bentham, District Attorney Daniel Porter, District Attorney Spencer Lawton, Police Maj. William Shannon, Walter Britt, Gregory Smith and the other prosecutors, defense attorneys and police personnel in Georgia who provided critical insights and information. We also wish to acknowledge the generous assistance and data provided by Timothy Carr, of the Department of Corrections, and Willene White-Smith of the Crime Information Center of the Georgia Bureau of Investigations. Dr. Joseph Katz provided invaluable help with the statistical analyses that are the core of this chapter.

Treatment of Prisoners

The author, HRW associate counsel Joanne Mariner, gratefully acknowledges the help of Bob Cullen, counsel for the plaintiffs in innumerable Georgia prison cases; Robert Bensing and Robin Toone, staff attorneys with the Southern Center forHuman Rights; John Cole Vodicka, director of the Prison and Jail Project, and Gerry Weber, legal director of the American Civil Liberties Union of Georgia.

Sexual Abuse of Women Prisoners

The author, HRW associate counsel Joanne Mariner, wishes to thank Bob Cullen and Lisa Boardman Burnette, counsel for the plaintiffs in the federal class action Cason v. Seckinger, whose generous provision of time and information greatly facilitated the preparation of this chapter. Deborah Blatt, a former consultant with the Women's Rights Project of Human Rights Watch, conducted the original research that was updated for this chapter. Dorothy Q. Thomas, director of the Women's Rights Project of Human Rights Watch, edited the chapter.

Children in Confinement

The author, HRW consultant Mina Samuels, wishes to thank the many organizations and individuals in Georgia and other parts of the United States who assisted us in researching this issue. In particular, we would like to thank Judge Virgil Costley, Kathleen Dumitrescu, Richard McDevitt, Dorothy Murphy, George Napper, Linda Pace and Professor Janet Pratt. We also appreciate the assistance and suggestions provided by members of the advisory committee of the Children's Rights Project of Human Rights Watch.

Lesbian and Gay Rights

The author, attorney Suzanne Goldberg, wishes to thank Larry Pellegrini, John Greaves, Johnny Fambro, Chip Rowan, Jane Morrison, Pat Hussain, Duncan Teague, Stephanie Swann, Melanie Rosen, Phillip Rush, Phil Rashoon, Donna Narducci, Charles Gossett, Dr. James Stark, Lyn Stoesen, Donna Drumm, Lisa Kung, Phillip Rush and Walter Reeves. The organization for which the author works, Lambda Legal Defense and Education Fund, plans to open a Southern Regional office in Atlanta next year.

Attacks on Freedom of Expression

The author, HRW on-line research associate Karen Sorensen, wishes to thank Julie Edelson at Planned Parenthood in Atlanta, Donna Pistolis in the Office for Intellectual Freedom at the American Library Association in Chicago, and Alison Biers of People for the American Way in Washington, D.C.

When Atlanta set out to host the 1996 Summer Olympic Games, its application stated that "for many," the city is "the modern capital of human rights." This is big talk, even for a city that in many respects symbolizes the social progress of the American South since the civil rights movement of the 1960s. A claim so large begs for evaluation. In this report, one of a series on the United States, Human Rights Watch offers an assessment of how Atlanta, and the state of which it is capital, actually treat human rights.

Human rights issues may seem unrelated to a sporting event, but the Olympic Games have historically showcased the international community's respect for what Atlanta's application called the "justice and equality inherent in fair play." At the same time, the Olympics have often been a lightning rod for political controversy-for Nazi racist supremacism (Berlin 1936), for black-power salutes (Mexico City 1968), for anti-Israeli terrorism (Munich 1972), and for reciprocal boycotts by the U.S. and Soviet Union (Moscow 1980 and Los Angeles 1984), among others.

Beijing lost its bid to host the 2000 Olympics because of China's gross and systematic violations of human rights, and Human Rights Watch was among the organizations that campaigned for taking its human rights record into account. As the world's attention focuses on an Olympic site, it follows naturally that the host country's human rights record is of interest. And so it should be: as South Africa under apartheid discovered, a country that wishes to participate in the world sporting system should also participate in the international human rights system and strive to meet the standards of that system.

It may interest visitors to Atlanta to know that the likely invisibility of homeless people will be largely due to city ordinances that prohibit entering a vacant building or crossing a parking lot without owning a car parked there; ordinances that assist police in clearing homeless people off the downtown streets. And controversy has already arisen this year, due to local politics in the U.S. that contradict Olympic principles. By decision of the organizing committee, the Olympic torch, on its journey from Los Angeles to Atlanta for the opening of the games, will bypass at least one county in Georgia because of a county resolution that denigrates gay people. This, and much else about Atlanta, the state of Georgia, and the U.S., will become more widely known because of the games.

It is to be hoped that world attention may lead to improvements. For Human Rights Watch finds that state officials and public policies contravene fundamental human rights principles in a wide range of settings in Georgia. For example:

* Atlanta police officers have used excessive force, including unjustified shootings and severe beatings, and have otherwise abused their power without coming before external civilian review and without punishment through internal department procedures, such that in Atlanta the performance of the police is now a controversial and divisive issue.

* Georgia's death penalty law, upheld by the U.S. Supreme Court in 1976, has led to capital punishment primarily for the poor and for African-Americans-particularly when the victim of the crime is white-and this discriminatory impact compounds the abuse inherent in the death penalty itself.

* Drug laws are enforced disproportionately against black drug offenders, who, for example, are arrested for cocaine-related offenses at seventeen times the rate of whites (even though more whites are cocaine offenders) and who receive 98 percent of the life sentences handed down in drug cases.

* State-run jails are so overcrowded and physically deteriorated, and local jail officials have neglected prisoners' welfare so shamefully in so many areas, that the U.S. government has threatened to sue eleven Georgia counties over jail conditions.

* Women in prison suffer sexual harassment and intimidation, and sometimes rape, at the hands of their guards, a situation which has improved greatly since an amended lawsuit was brought against the state in 1992 but which continues to be serious.

* Minors in state custody face extremely poor custodial conditions, are subjected to cruel restraints and punishment forbidden by international standards, are held in overcrowded facilities with little educational or other programs to occupy them, without appropriate psychological attention, and are virtually ignored as candidates for rehabilitation, which is supposed to be the goal of juvenile confinement.

* Lesbians and gay men face hostility that ranges from harassment under the state's anti-"sodomy" law, to openly discriminatory firing of gay employees by state officials and others, to verbal threats and physical attacks. Victims of discriminatory treatment in most parts of Georgiahave no effective recourse because the state does not prohibit discrimination on the basis of sexual orientation.

* Freedom of expression is undermined by local school boards, in contravention of federal law but without federal action to end it, and by state Assembly resolutions that have condemned the state's public broadcasting system and have opened up broad new possibilities to prosecute Internet users for a variety of hitherto common practices.

These problems are not unique to the city of Atlanta or to Georgia. The custodial abuse, official neglect, discrimination and intolerance we have found in Georgia occur in many other parts of the United States, and those who commit abuses often go unpunished. The death penalty is available in thirty-eight of the fifty states; twenty-five of these permit the execution of offenders who were under eighteen at the time of the crime. Forty states lack laws to prohibit discrimination based on sexual orientation, and no state is immune from police brutality.

In Georgia, as elsewhere in the U.S., the federal government's and courts' performance is uneven. There have been some successes in Georgia, like state court-orders that have reduced prison guards' previously flagrant sexual abuse of women inmates. But there have also been setbacks; efforts by local groups to improve the treatment of children in confinement have not been successful to date. As to the death penalty, the abuse is permitted by the U.S. Supreme Court, though some local features of its application are peculiarly Georgian. And regarding discrimination against lesbians and gay men or local actions against certain books or topics in art, the federal government is distant from the events, when it should be acting to protect vulnerable groups and crucial rights, and to challenge restrictive state laws and resolutions.

Several pieces of legislation passed by the U.S. Congress during the current 104th session and signed by President Clinton, have undermined basic human rights protections throughout the U.S. For example, despite the fact that deplorable prison and custodial conditions and abusive treatment are routinely ignored by officials in Georgia and other states until lawsuits are successful, the Prison Litigation Reform Act, which is now law, makes initiating lawsuits to improve treatment and monitoring of court orders to improve conditions stemming from those lawsuits more difficult. The Communications Decency Act, signed into law as part of the Telecommunciations Act of 1995, criminalizes on-line communication that is "obscene," "indecent," or "patently offensive" if the recipient of the communication is a minor. The constitutionality of the law is now being challenged by groups, including Human Rights Watch, arguing that"indecent" speech is protected by both the U.S. Constitution and international law. Finally, as described more fully in this report's chapter on the death penalty, the federal government recently passed new habeas corpus restrictions that are unprecedented. The new law limits the ability of death row prisoners and other inmates to appeal state-court decisions to federal courts on constitutional grounds, despite the large number of state-court decisions that are currently overturned by federal courts due to state-court errors.

Several of the most persistent practices we found contradict Georgia state law and/or U.S. federal law and the Constitution. They also violate international human rights law, which is grounded in principles that the United States, and the state of Georgia, are presumed to share-principles like the individual's guarantee of free expression, the prohibition on cruel and unusual punishment, the right to due process of law, and the right to be free from discrimination. We hold the state of Georgia accountable for abusive practices under international law because the commitments made by the United States to the international community are binding on all its states and municipal governmental units. We also hold the federal government accountable because, under international human rights law, the national government is responsible to the international community for compliance with international obligations by all entities within its jurisdiction. Federal arrangements for the distribution of power are not an excuse for non-compliance.

International Law: Americans Need Not Apply

The standards of international law cited throughout this report in some cases offer better human rights guarantees than U.S. law. Over the past fifty years, the principles adopted by the United Nations in 1948-as the Universal Declaration of Human Rights-have been formalized in treaties and protocols, reflecting an increasingly unified international consensus that basic rights must be guaranteed for all. After the treaties are ratified by a country, they become domestic law.

The United States has helped create these standards, but has been slow to apply them to itself. And when the United States has ratified key covenants, it has done so with such important reservations that U.S. citizens cannot use international law for their own protection.

In recent years, the United States has ratified the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture or other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Convention on the Elimination of all Forms of Racial Discrimination (CERD). The administration of President George Bush saw to the ratification of the ICCPR, and the incumbent Clinton administration pushed through Congress the ratification of the Torture Convention and CERD. But both administrations, Republican andDemocratic, have imposed reservations, declarations and understandings that carve away any expanded protections for Americans. Principal among these is the declaration that none of the provisions are self-executing, meaning that they are not automatically available for Americans to invoke upon ratification. They require passage of implementing legislation before they can be applied by courts. At the same time, the Executive Branch specifically declares that no implementing legislation is necessary. The effect is that ratification is more or less meaningless for Americans who would invoke the treaties to see their rights protected.

If, for example, residents of Georgia could invoke CERD's provisions, the disproportionate impact on African-Americans in the application of the death penalty and dramatic racial discrepancies in arrests and sentencing of blacks and whites for drug offenses could be challenged in court, because to prove discrimination under CERD requires proof of discriminatory intent or effect, while the U.S. Constitution has been interpreted by courts to require proof of both intent and effect. The Torture Convention prohibits "cruel, inhuman and degrading treatment," as does the U.S. Constitution's Bill of Rights in slightly different language-but regarding the specifics of what constitutes such treatment, international standards that are considered the authoritative definition of minimally decent conditions for detainees and prisoners are more specific and protective of rights than is U.S. law; so are international standards regarding the treatment of juveniles in confinement. And the ICCPR, which has been interpreted as covering discrimination based on sexual orientation, could help to protect lesbians and gay men from such discrimination and lead to the invalidation of Georgia's "sodomy" prohibition.

While it is not the primary subject of this report, the U.S. government's unwillingness to fully adopt international human rights standards is a denial of full rights to U.S. citizens and other U.S. residents. We urge that the federal government reconsider its position and remove its reservations to the ICCPR, the Torture Convention and CERD. We also urge early and unreserved ratification of pending human rights instruments-including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child, the American Convention on Human Rights, and the International Covenant on Economic, Social and Cultural Rights.

Findings

Police Abuse

Police officers and sheriffs' deputies in Georgia who commit human rights violations are subjected only to the public scrutiny provided by the media. This is particularly notable in the case of Atlanta, the state's capital and largest city, wherethere has been no functional citizen review agency for the past several years. Most of the smaller cities and rural areas are entirely dependent upon internal review by police and sheriffs' departments. This lack of transparency protects abusive officers and poor police managers.

State criminal prosecution of police officers in Georgia is made more difficult than in most other states by the use of special grand jury proceedings that benefit accused officers and reduce the number of indictments in police brutality cases. The chief of special litigation of the Georgia Attorney General's office objects to the special treatment given police accused of misconduct, and has labeled it "outrageous." These procedures contribute to impunity for police officers accused of serious abuses, as described in this report.

Federal criminal civil rights prosecution of law enforcement officers is rare in the United States generally, but the rate of prosecution appears to be particularly low in Georgia. Since 1994, the U.S. Justice Department reports that only two civil rights cases were prosecuted in Georgia. Despite the difficulties in prosecuting these cases successfully-because jurors are predisposed to believe police officers, and the legal standard is rigorous in requiring willful deprivation of the victim's civil rights-this is an alarmingly low number of prosecutions in light of the serious abuses we describe in this report.

Death Penalty

The application of the death penalty in Georgia is discriminatory, characterized by a denial of due process that particularly affects the poor and black defendants. It follows on a tradition of unequal justice for African-Americans that results in capital punishment being sought and imposed most frequently in that small portion of homicides where the victim is white and the accused is black. That such partiality in the justice system leads to unequal sentencing is serious enough; when it leads to execution it blatantly violates the most basic principles of international human rights law and the U.S. Constitution.

Like race, poverty can be a serious handicap for the accused in a capital case in Georgia. The system fails to provide adequate legal representation for the indigent, and in trial after trial, where decent representation could have led to a reduced sentence, poor defendants have been given the death penalty. Poor, mentally impaired defendants in capital cases have received the death penalty because court-appointed lawyers have failed to offer evidence about mental impairments that might have resulted in reduced sentences

Drug Law Enforcement

Drug laws in Georgia are not enforced equally against black and white drug offenders. Official arrest and incarceration data analyzed by Human Rights Watch demonstrate the starkly disproportionate impact of the state's efforts to use the criminal law to curtail the consumption and distribution of illicit drugs. Both African-Americans and white Georgia residents use and distribute drugs, but black offenders have a much greater likelihood of being arrested and incarcerated.

Although more whites than blacks use drugs, including cocaine, blacks account for two-thirds of the arrests for drug possession and 84 percent of the arrests for cocaine possession. The disproportionate impact of arrest patterns is mirrored in imprisonment rates: African-Americans account for three-quarters of the persons admitted to prison for drug offenses. They also received the most onerous sentences: 98 percent of all life sentences for drug offenses were given to African-Americans, in most cases for offenses involving miniscule drug amounts.

Federal and Georgia state law enjoins discrimination on the basis of race. International human rights law is also implicated: one of the overarching principles of international human rights is that of equality before the law. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), to which the U.S. is signatory, calls on national governments to take steps to eliminate discrimination in practice. The shocking statistics found in Georgia lead us to believe that, at least in this state, the U.S. is not in compliance with CERD's provisions.

Jail and Prison Conditions

At adult facilities, and particularly in local jails, prisoners are held in dangerous, filthy and deteriorating conditions. In one county jail investigated by the U.S. Justice Department, inmates were left unsupervised up to six hours of every eight-hour shift. If there had been a fire, medical emergency or prisoner unrest of any kind, the prisoners (and surrounding communities) would have been in danger. The jail was also filled to twice its capacity, and prisoners were forced to sleep on dilapidated mats on the concrete floor. Prisoners at the jail were not housed to separate dangerous inmates from vulnerable ones, but the jail was racially segregated by the authorities.

During the past decade, Georgia experienced explosive growth in its prison population; in the last three years alone, the number of inmates has increased by about 9,000-one of the fastest rates of growth in the nation. This dramatic growth has been accompanied by tougher treatment of prisoners, and by allegations of physical abuses during intensive searches, described as "shakedowns," held atcorrectional facilities around the state and designed to uncover weapons, drugs, money and other contraband.

Sexual Abuse of Women Prisoners

Prior to a federal class action lawsuit in 1992, state officials entrusted with custodial power over the women's prison population in Georgia engaged in flagrant sexual abuse of their charges, abuse that included rape, sexual assault, sexual harassment and violations of the right to privacy. Although Georgia criminal law formally prohibited sexual contact between prison officials and prisoners, the law was not enforced, and the efficacy of departmental policies intended to prevent such abuse was belied by the impunity with which prison staff, including supervisory staff, engaged in sexual relations with prisoners.

Following the 1992 lawsuit, there was significant public and judicial attention to the spectacle of custodial sexual abuse, compelling Georgia to take meaningful steps to put a stop to it. Because of these efforts, the overall atmosphere in its women's prisons has greatly improved from that existing prior to the suit. Nonetheless, sexual contact between officers and prisoners remains a recurring problem and, in some instances, amounts to rape or sexual assault. Moreover, prisoners who report sexual misconduct still face a persistent bias against their testimony and may suffer punishment. This is in contrast to the officials and guards accused of sexual assaults, most of whom have escaped full criminal prosecution and all of whom have avoided prison sentences.

Children in Confinement

Georgia officials refused access to children's facilities by Human Rights Watch investigators. Nonetheless, through our research we were able to ascertain that many children are confined in shamefully overcrowded, squalid and unsanitary conditions in detention and correctional facilities in Georgia. As a result of overcrowding, institutions are dangerous places for younger children who are sometimes preyed upon by older offenders. In some facilities four boys share housing space intended for one.

Inappropriate and excessive disciplinary measures are used, including an overuse of isolation (sixty-three days in one case) and locking children in their cells for long periods of time. In addition, four-point restraints, with children bound to a bed by wrists and ankles, are used as disciplinary measures; the same practice is used to restrain children who are believed to be suicidal. Educational and other programming is inadequate. Children with psychological disorders have been punished or ignored instead of being treated by medical personnel. Despite at least one successful lawsuit against officials responsible for abysmal conditions at oneof the facilities, neither the federal government nor state officials have implemented enforceable standards to ensure the safety and well-being of children in the custody of the state.

Lesbians and Gay Men

Lesbians and gay men in Georgia, as in many parts of the country, are confronted with animosity from fellow residents and officials, and most lack even basic protections from discriminatory treatment. A so-called "sodomy" law that criminalizes certain sexual behavior, and state and local resolutions that condemn "gay lifestyles," promote an atmosphere of hostility; this is reinforced by the state's unwillingness to provide anti-discrimination protections to gays and lesbians. As a result, gay men and lesbians, except for public employees in Atlanta and two surrounding counties, have no recourse if they are fired from their jobs on grounds of their sexual orientation. One large restaurant chain fired all known gay men and lesbians in 1991. Soon after that, the state's attorney general dismissed a newly hired lawyer after learning she was a lesbian.

As state and local politicians pass laws and resolutions condemning lesbians and gay men, attacks against members of the gay community have continued, often escalating from verbal taunts to physical violence, and sometimes murder. The police response to these crimes has been uneven. There have been some welcome convictions of assailants who targeted lesbians or gay men, but in other cases the police have not responded adequately.

Freedom of Expression

In recent years, socially conservative groups, parents, and elected officials have sought to restrict Georgia residents' freedom of expression in several areas, especially artistic freedom of expression and sex education. These efforts have resulted in attacks on freedom of expression by state, country and local governments, and at public schools and public libraries. The situation in Georgia is consistent with a national trend.

Reductions in Georgia state funding for the arts have targeted groups or artists that discuss homosexuality or AIDS and HIV. Art exhibits focusing on contemporary social issues have been removed from public spaces, and books and other literary works with sexual themes have been banned by directors of public libraries under pressure from school boards and parents. The free flow of information via electronic communication has also been curtailed: citing concerns ranging from terrorism to trademark theft, Georgia lawmakers have recently passed laws that restrict rights to free expression and privacy on-line.

Conclusion and Recommendations

As described thoroughly in this report, for many-particularly the poor, racial minorities, gays and lesbians, and virtually anyone jailed or imprisoned in the state-Georgia is hardly a human rights mecca. In addition to the specific recommendations found in each chapter, we make the following recommendations:

Improving Accountability

· Effective complaints procedures must be established and adequate outreach must be initiated to inform individuals about their right to file complaints when their rights have been violated by police and corrections officers.

· In light of the inaction of Georgia authorities to complaints of abuse that are made, unless those complaints are part of a successful lawsuit, officials should consider instituting citizen review boards or creating a governmental agency or commission dedicated to receiving and investigating abuse complaints involving police and corrections officers. Furthermore, the mandate of Atlanta's long-moribund Civilian Review Board, now newly tasked with reviewing the department's own investigation of complaints, should be revised dramatically by allowing it to receive initial complaints from alleged victims, granting it subpoena power, and providing it with staff and resources to carry out its responsibilities, among other necessary reforms.

· Supervisors must be responsible for the actions of their subordinates. Abusive police or corrections officers must be disciplined appropriately and consistently. If local prosecutors fail to prosecute, federal prosecutors must consider whether criminal civil rights violations have occurred and should prosecute accordingly.

· Local detention facility administrators must be held accountable for ignoring deplorable living conditions. The Justice Department's recent reports on its investigation of conditions at county jails in Georgia are a clear indication that local officials have abdicated their responsibility to provide humane conditions. If federal investigations are necessary to bring about essential improvements in adult or children's facilities, they should continue, but local personnel who have engaged in misconduct or management that has failed to protect inmates' or detainees' basic rights must not go unpunished.

· Independent human rights investigators should be allowed access to both adult and juvenile facilities.

The Death Penalty and Discrepancies in the Criminal Justice System

· Georgia should abolish the death penalty.

· An independent, state-wide public defender system should be established to take responsibility for indigent defense in the state to ensure that impoverished defendants are represented by lawyers able and willing to devote the time, resources and skills necessary in capital cases. At the very least, the pre-existing Multi-County Defender's office should be provided with the staff and other resources necessary to fulfill its duties in representing poor defendants in capital cases.

· Georgia's public officials, lawmakers and the public at large should scrutinize the means used to enforce drug laws and then assess the necessity of these means in light of the state's drug objectives. The inquiry should consider how the current disparate racial impact could be reduced by adopting policy alternatives. As part of this examination, officials should review reporting mechanisms and data collection to ascertain whether sufficient information has been compiled to be able to ascertain the racial impact of drug law enforcement.

Discrimination and Intolerance

· Georgia should repeal O.C.G.A. Sec. 16-2-2 (the criminal prohibition of "sodomy").

· Georgia communities should repeal all explicitly anti-gay ordinances and restrictions.

· The U.S. Congress should pass the Employment Non-Discrimination Act, which prohibits discrimination based on sexual orientation in employment.

· Freedom of expression should not be inhibited unnecessarily by individuals or groups who have been allowed to arbitrarily choose which artworks, books or theater productions are suitable for the community at large.

· To ensure that artistic expression in Georgia is protected from political interference, Georgia lawmakers should reject content-based restrictions on funding or other forms of support for the arts.

International Human Rights Protections

· The U.S. Congress should introduce implementing legislation for the International Covenant on Civil and Political Rights, the Convention Against Torture and Cruel, Inhuman and Degrading Treatment and theInternational Convention on the Elimination of all Forms of Racial Discrimination.

· The U.S. should ratify all relevant international human rights treaties not yet approved, including Convention on the Elimination of All Forms of Discrimination Against Women, the American Convention on Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the Convention on the Rights of the Child.

Georgia's law enforcement agents have committed serious human rights violations, including unjustified shootings, severe beatings, and other applications of excessive force. Yet, according to the information available to the public, officers are rarely disciplined adequately by police management for such offenses and are even less likely to be prosecuted criminally. In these ways, Georgia's police abuse problem is typical of states throughout the nation.

Georgia is unusual, however, in that there is little independent review of its police forces. This is particularly notable in the case of Atlanta, its capital and largest city, where there has been no functional citizen review agency for the past several years. State criminal prosecution of police officers in Georgia is made more difficult than in most other states by grand jury proceedings that grant accused officers special procedural privileges that are unavailable to other persons who may be targets of grand jury investigations, reducing the number of indictments in police brutality cases. And, although federal civil rights prosecution of abusive police officers is rare in the United States generally, the rate of prosecution appears to be particularly low in Georgia.

In the first section of this chapter we examine police abuse and accountability problems within Atlanta by describing: incidents of alleged abuse by Atlanta police officers; the newly formed Civilian Review Board; the role of the Atlanta Police Department's internal affairs unit (which is responsible for investigating police misconduct); and efforts to prosecute Atlanta police officers accused of criminal offenses. The next section describes police brutality cases from around the state that illustrate flawed practices and procedures leading to impunity for abusive officers. The federal government's role in addressing police abuse in Georgia is then examined. Finally, we provide recommendations to the relevant government authorities to improve accountability for brutal officers and reduce incidents of abuse.

Constitutional and International Standards

In addition to violating state and federal law, as described below, police abuse also violates constitutional rights and international norms and treaties to which the U.S. is party. The Eighth Amendment of the U.S. Constitution prohibits the infliction of "cruel and unusual punishment," and the Fifth and Fourteenth Amendments prohibit any state from depriving "any person of life, liberty, or property, without due process of law." Furthermore, the Fourth Amendment forbids the "unreasonable" seizure of any person.

Two major international human rights treaties pertain to police abuse. In 1993, the U.S. ratified the International Covenant on Civil and Political Rights. Article 7 of the covenant states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment...."1 Similar protections are included in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the U.S. ratified in 1994.2

Atlanta

On December 7, 1995, plainclothes Atlanta police officer Willie T. Sauls entered a motorcycle shop, his gun drawn. Sauls and his fellow officers reportedly suspected a robbery was in progress, and when he entered the store, shouting obscenities, an employee thought the police surrounding the store were themselves robbers, thus leading to a gunfight. By the time the shooting stopped, a customer at the store, Jerry Jackson, was dead and two others, including Officer Sauls, were wounded.3

What began as a botched raid became a significant scandal when witnesses who viewed some of the incident from a nearby building contacted reporters weeks after the shooting stating that they had attempted to provide police investigators with their eyewitness accounts but were ignored. The witnesses claimed that police spokespeople quoted in the press were misleading the public because they did not want to acknowledge what the witnesses had seen: Sauls's partner, Officer Waine Pinckney, shooting Jackson as he lay prone and unarmed on the sidewalk outside the store, apparently posing no risk.4

The shooting exposed serious shortcomings in investigative procedures used by the Atlanta Police Department.5 It raised questions about the training of Atlanta's police officers because so many mistakes were apparently made during this one incident. The December shooting also highlighted the absence of any external check on the police department generally, because unlike most U.S. major cities, Atlanta had no functional citizen review mechanism.

Perhaps because of Atlanta's promotion as a "convention" city and the related need for a positive image, the Atlanta Police Department and the city's leaders appear eager to dismiss charges of police brutality as insignificant. In January, Mayor Bill Campbell boasted of a low complaint rate of just forty-five complaints for 1995.6 He correctly stated, "For a police department our size, percapita, that's a phenomenally low record."7 While such a low rate of complaints may indicate an extraordinarily well-behaved police force, an unusually low complaint rate often indicates that citizens have lost faith in the police department's interest in pursuing abuse allegations and have stopped filing complaints.

It is difficult to gauge how prevalent the problem of police abuse is in Atlanta because the complaint-intake process is flawed and the police department resists public disclosure of information about the cases it has received and investigated. According to the department's internal affairs unit, the Office of Professional Standards (O.P.S.), each precinct is allowed to decide which cases are serious enough to submit to the O.P.S. without any set guidelines. And, as in many cities around the United States, there is a public perception that the internal affairs unit is not interested in pursuing complaints against police officers, resulting in distrust of the O.P.S. in many affected communities. Because victims of police abuse may not believe the O.P.S. will handle their cases properly, many do not file formal complaints. Another important contributing factor in the low number of complaints filed with the O.P.S. may be its requirement that only the victim of abuse may file a complaint. Since many victims have criminal charges pending against them, they fear providing information in their complaint that may be used against them.

One attorney who handles many civil cases on behalf of victims of police abuse in Atlanta told Human Rights Watch that he receives between five and fifteen police abuse complaints from around the state each week.8 The city's PublicDefender's Office reports that many of its clients claim abuse.9 Yet no independent agency, commission or nongovernmental organization regularly monitors police brutality allegations or attempts to tally the number and types of complaints in Atlanta. Some sort of consistent external review would seem to be in order, as in most major cities in the country.10

Civilian Review Board

In response to many Atlantans' outrage over the Jackson shooting, Mayor Campbell called for the creation of a civilian review board, apparently without realizing one already existed (thus proving how marginal the pre-existing board had become). Once the existence of the board was acknowledged, the mayor signed an administrative order to "continue" the Civilian Review Board (C.R.B.).11 As proposed, the C.R.B. will not receive initial complaints of brutality from the public, will not have a staff, will not have subpoena power, will not meet in public and will not necessarily make its findings or recommendations available to the public.12 The review board will "receive reports from the O.P.S. and may receive requests for review from citizens who are dissatisfied with the result of the O.P.S. review."13 After its "investigation" without its own investigators, the board will recommend to the mayor whether there is "probable cause for [administrative]charges to be brought by the City against the affected officer[s]...."14 If administrative charges have been proffered against the affected officer(s), the review shall be made only by the C.R.B. chair to determine whether department policy changes should be recommended. There is no possibility for the C.R.B. to review cases where victims or others protest the leniency of any administrative charges applied.

In addition to awaiting the conclusion of O.P.S.'s own investigation into brutality claims, the C.R.B. will be prohibited from completing its review while any "litigation arising from the complaint against the City, its officers, or employees" is pending.15 Since the C.R.B.'s mandate is limited to allegations of excessive force, serious bodily injury, and death, nearly all of the cases it is authorized to review will involve civil suits and some will lead to criminal charges; such delay renders the C.R.B. useless, since litigation in these cases may span several years. If the C.R.B. is intended to ease public anxieties following cases like the Jackson shooting, it will have little effect in practice, since, according to its own mandate, it would not be permitted to review the Jackson case until the federal criminal civil rights investigation, now underway, is completed and any civil actions are concluded.

In explaining why the C.R.B. does not need subpoena power, which would require the Atlanta Police Department and Department of Corrections, over which the C.R.B. has jurisdiction, to provide all relevant files or access to "problem officer" tracking systems, the mayor's Office of Community Affairs explained that such power was not necessary because O.P.S. has always been cooperative.16 Yet a sergeant in the O.P.S. told Human Rights Watch that he had little knowledge of the review board and stated he "never had any interest in the Civilian ReviewBoard."17 A former member of the C.R.B. told Human Rights Watch that, at some point, O.P.S. stopped forwarding relevant cases to the board and that recommendations made by C.R.B. members were often ignored by police management.18

The absence of any provision for public disclosure of information regarding complaints of abuse or any public access to the hearings that the C.R.B. may hold undermines one of the central goals of civilian review-improving public confidence through enhanced information about police handling of abuse complaints. Despite the appointment of prominent and respected members of the community, this sort of secrecy and the board's staff and mandate limitations, as described above, will not enhance police/community relations in Atlanta. While some in the community derided the C.R.B. as a "paper tiger" when it was announced in January, that label would suggest that, on paper, the board has powers that it will not have in practice.19 In fact, its powers as described are hardly impressive; the C.R.B. requires major revisions to live up to its name and stated goal.

Office of Professional Standards

The O.P.S., the internal affairs division of the Atlanta Police Department (A.P.D.), is divided into units that investigate allegations of corruption, brutality and other serious misconduct. O.P.S. currently has a staff of twenty that is tasked with investigating the 1,500-officer police force.

The aftermath of the Jackson case and widespread criticism of the A.P.D. emerging from that case coincided with the trial of officers, primarily from Zone 3 (one of six police zones in the city), who were accused of corruption. The trial raised new questions about O.P.S.'s effectiveness. One sergeant, in his testimony against another officer, explained that members of the "bad cop ring" did not fearan O.P.S. investigation because they knew how to circumvent it: "As a supervisor, I knew my processes and I knew O.P.S.'s processes....It'd be the officer's word versus the citizen's and the officer would win out since there were no witnesses."20

At least six officers involved in the corruption scandal had personal experience with O.P.S. procedures and had good reason to believe O.P.S. would ignore or tolerate their criminal behavior, according to an investigation by the Atlanta Journal-Constitution.21 Despite many allegations of brutal treatment or violent behavior, these officers remained on the force until they faced corruption charges. While specific information about abuse complaints usually is not made available to the public, this information was sought and revealed as a result of the corruption prosecution of the officers; this unusual glimpse into the A.P.D.'s apparent tolerance of violent behavior is cause for concern.

One of the officers, Edgar Allen Jr., was the subject of five brutality complaints. One complainant alleged that Allen and his partner drove him to a deserted location where Allen unzipped the man's pants and Allen's partner grabbed the suspect's testicles and squeezed while asking questions; the officers also reportedly kicked and choked the man. Despite similar complaints by other suspects, O.P.S. dismissed all five complaints as unfounded because there were no witnesses other than police officers.22

Another officer involved in the corruption ring, Michael D. Williams of Zone 6, also had a record of brutality. In July 1991, he was charged with battering his live-in girlfriend, and in March 1993 faced the same charge from another girlfriend.23 According to newspaper reports, both times he was suspended with pay and reinstated when the women chose to drop the charges.24

A leader of the ring, Ronald B. Grimes, was arrested in DeKalb County for allegedly battering his wife, leading to a court-ordered psychological profile, which stated that Grimes had been in seventy-five fistfights, on and off duty. Hiswife recanted, and prosecutors dropped charges against him. After the corruption scandal broke, Atlanta police reopened an internal investigation into the 1993 shooting death of a criminal suspect, Christopher Eugene Smith. Smith was shot five times by Grimes after a foot chase, three times in the back at a distance of two and a half feet. Nonetheless, despite a file full of complaints, Grimes was praised by superiors in annual performance reports for his "gung ho" attitude.

Three more officers involved in the corruption ring-Willie D. Jackson, Marquis Wadley and David Entrekin-had been cleared by O.P.S. in a 1993 shooting incident that crippled Sameth Svay. Svay was shot by police during an investigation into illegal gambling. In files turned over to the Atlanta Journal-Constitution, Svay's sworn statement about the incident was missing (he had been charged with assaulting an officer and illegal gambling, but charges were later dropped), and the files show that he was never interviewed by O.P.S. during its inquiry that led to the officers' exoneration.25

When Human Rights Watch asked Lieutenant Lyle of O.P.S. how these officers consistently avoided serious disciplinary sanctions or termination for these alleged abuses, Lyle suggested that the brutality complaints helped to spur the federal corruption investigation. If this is the case, it raises an obvious question: Why did brutality complaints lead to a corruption investigation instead of a civil rights probe? This comment may reveal a great deal about the priorities of both federal investigators and the Atlanta Police Department.26

There are reasons to believe that the O.P.S. is not neutral in its investigations. An O.P.S. representative told Human Rights Watch during an interview in November 1995, "People make complaints to get out of trouble."27 When Human Rights Watch questioned the low number of complaints received by the Atlanta police and the O.P.S.'s assertion that the sustained rate is very low,O.P.S. asserted, "We don't have a brutal police force here."28 The same sergeant from O.P.S. was not aware of any brutality case leading to dismissal.

The O.P.S. does maintain an early warning system. If three or more maltreatment complaints are filed against an officer in a one-year period, whether or not the complaints are sustained, a review is initiated. Similarly, four firearms discharges by an officer in a five-year period result in a review. Of course, if the review of an officer results in no re-training or disciplinary sanction (as seems to have been the case with the "bad cop ring" in Zone 3), procedures leading to review may not be sufficient.

In Atlanta, as in many police departments around the United States, there is no linkage between the filing or settling of civil lawsuits alleging police brutality and the involved officer's personnel or disciplinary record. This means that a plaintiff may win a large civil settlement, either pre-trial or post-verdict, but neither the officer's supervisor nor the O.P.S. is officially notified. An effective early warning system to identify problem officers would benefit from the automatic initiation of an O.P.S. investigation upon the filing of each brutality lawsuit, or at least following a substantial settlement or after a jury finds in favor of the plaintiff by the "preponderance of the evidence," the standard used in civil cases.

The City Attorney's office does not maintain readily accessible data regarding the amount paid by the city to settle police brutality lawsuits, revealing an apparent lack of interest in the financial implications of such lawsuits. In response to a Human Rights Watch request, the City Attorney's office pulled together a compilation of pre- and post-verdict settlements for 1994 and 1995. Atlanta paid $610,368 in police brutality settlements in 1994, and $67,000 in 1995, a relatively small figure. As a representative from the City Attorney's office notes, the city "litigates aggressively."29 The settlements are paid out of general funds, not by an insurer, which may contribute to the city's interest in fighting such lawsuits vigorously.

If an officer leaves the department during an investigation into brutality charges (a common response), the O.P.S. claims that there are checks in place to prevent the A.P.D. from re-hiring that individual. Nothing, however, prevents an officer from resigning from the A.P.D., or from any other police force in Georgia,and applying for a law enforcement job elsewhere in the state. (See the James W. Jackson case below.)

Criminal Prosecution

The already difficult task of prosecuting police officers who commit criminal offenses is compounded by Georgia state law that allows special privileges for public officials, including police officers, during grand jury proceedings.30 Defendant police officers are allowed to be present, with legal counsel, throughout the proceedings. At the conclusion of the hearing, the defendant may make a statement to the jurors and the state is not allowed to rebut the officer's account. Experts interviewed by Human Rights Watch stated that these procedures are unique and were unaware of other states in which public officials are granted these privileges.31

Prosecutors dislike the special rules for public officials, and acknowledge that it serves as a barrier in their prosecution efforts.32 The chief of special litigation of the Attorney General's office objects to the special treatment and believes it is "outrageous that public officials are given greater rights than those provided to ordinary citizens. It gives them a shot to prevent indictment at a stage when no one else has that right."33 He believes that public officials might be entitled to a small privilege, but testimony the state cannot rebut, "is wrong."34

The Fulton County District Attorney's office may share that view, following a grand jury's recent decision not to indict the officers involved in theJerry Jackson shooting.35 The defendants were able to gain the sympathy and support of the grand jurors. Not only did the jurors decide not to indict; one juror told reporters that she thought the officers "should be given medals" for their hard work.36

A spokesperson with the Fulton County District Attorney's office, Melvin Jones, told Human Rights Watch that he could recall only three cases, including the Jackson shooting, prosecuted by the district attorney during the past five years.37 He stated that few excessive-force cases reach the stage of charges being filed because they seem to "wash out" with the O.P.S. When asked why he believes the cases do not hold up, Jones stated that it's "the police looking out for themselves."38

Brutality Cases from Around the State

While the Zone 3 corruption ring and the Jerry Jackson shooting have drawn widespread attention by revealing serious training and supervision flaws, other cases in Atlanta and in other parts of Georgia demonstrate poor accountability for abusive police officers and sheriffs' deputies. Many of the smaller police and sheriffs' departments in the state do not have internal affairs divisions, so there are even fewer checks on abusive behavior than in Atlanta. The following examples by no means exhaust the large number of reported abuse cases, but they do exemplify flawed practices and procedures leading to impunity for brutal officers.

Charles Cunningham: A civil lawsuit filed on behalf of Charles Cunningham alleges that the plaintiff was beaten with a flashlight by Atlanta PoliceOfficer Charles Traylor on June 11, 1993.39 According to Cunningham, he was a bystander during a fistfight outside a nightclub in Atlanta when Officer Traylor arrived at the scene. Officer Traylor allegedly hit another individual with a flashlight, and Cunningham protested from some distance (posing no threat to the officer). Officer Traylor then struck Cunningham with the flashlight. The blow cut completely through Cunningham's lip, requiring an operation.

Traylor was found psychologically unfit for police work by several psychologists, one of whom warned that "persistent demands to cope with stressful or demanding situations might lead to outbursts of emotion."40 Traylor's behavior improved after medication was prescribed for his attention deficit disorder, yet at least one psychologist's warning that Traylor was still not fit for full duty was ignored.

This was not the first time Officer Traylor had been accused of brutal behavior. In 1988 he was convicted of simple battery after he fought with another driver over a parking space.41 In 1989, Traylor fought with another officer after an argument over race relations and was hospitalized for his injuries. That fight resulted in a three-day suspension. Over half a dozen complaints had been filed against the officer, but none resulted in discipline. In one startling off-duty incident, Traylor reportedly shot at another vehicle on an interstate highway. He later stated that he thought he saw a revolver in the other vehicle; no firearm was found. As of late March 1996, Officer Traylor was still on the force and working out of Zone 6.

Roderick Stewart: On the evening of November 5, 1993, Roderick Stewart reportedly sustained a black eye and other injuries after Atlanta police officers stopped his vehicle, following a two-mile chase, because they suspected he was driving under the influence of alcohol; officers reportedly had seen Stewart push someone from his car in a parking lot. The unusual aspect of this case is that the alleged beating was videotaped by cameras mounted on the police vehicles. After viewing the tape, then-Police Chief Eldrin Bell stated, "The tape shows excessive force was used."42

Despite the videotaped beating, a Fulton County grand jury chose not indict the officer, Scott Laster, on an aggravated assault charge. After the grand jury failed to indict Laster, the Fulton County District Attorney stated, "The grand jury just isn't after police officers."43 As described above, police officers brought before a grand jury enjoy special privileges, encouraging grand jurors to choose not to indict.

James William Jackson: On July 10, 1993, James William Jackson, while serving as a Douglas County sheriff's deputy in Douglasville, Georgia reportedly assaulted Richard Beardslee, resulting in bodily injury.44 Jackson resigned before the department's investigation was completed and applied for work with the Haralson County sheriff's department. Jackson provided the name of a friendly colleague as a reference, and the Haralson County sheriff failed to check with his counterpart in Douglas County. Just months later, as a sheriff's deputy in Haralson County, Jackson was accused of assaulting Donald Bridges in September 1993.

On February 20, 1996, Jackson pleaded guilty to the assault charge in Douglas County, and the second count was dropped by federal prosecutors as part of the agreement. The negotiated plea calculates his sentence should be between thirty-seven and forty-six months, with final sentencing pending as of April 1996. This was one of the few federal civil rights prosecutions in Georgia during the past several years. (See below.)

Wesley Hill: On April 12, 1994, Wesley Hill, age twenty-two, was shot and killed by DeKalb County Sheriff's Deputy David Aderhold. According to the civil lawsuit filed by Hill's fiancée, Uwanna Randolph, the plainclothes sheriff'sdeputies arrived mid-morning at a hotel as she and Hill were leaving.45 Deputy Aderhold ordered Wesley back into the hotel room, and the two were alone in the room. A shout came from the room, and the other deputies kicked out a window and entered, as did Randolph. One of the deputies found a gun near a window, according to the lawsuit. Randolph states that Hill was handcuffed and kneeling when she saw Deputy Aderhold shoot him in the back, point-blank.

According to Randolph's attorney, the case has been referred to the Criminal Section of the Civil Rights Division of the Department of Justice. But this attorney and his client had not been contacted by investigators as of March 1996.46 Deputy Aderhold is still on the force.

Gwinnett County Police Department: Beginning in 1993, several officers from the Northern Precinct of the Gwinnett County Police Department, based in Buford, became involved in corrupt activities, and in one case murder. Officer Michael Harold Chapel was convicted on murder and robbery charges in September 1995 for murdering a fifty-three-year-old woman whom he also robbed.47 The victim, Emogene Thompson, had reported a burglary to Officer Chapel in April 1993. But instead of investigating the alleged crime, Chapel tricked the woman into giving him her remaining cash. He arranged to meet her in a parking lot to retrieve the money, but instead shot and killed her.

After Chapel was charged with the murder, a colleague who was known to keep a journal on his computer committed suicide.48 Another officer, David Bodie Hurst, volunteered to investigate the suicide but instead erased files from the dead man's computer that investigators believed may have contained informationabout himself or a friend.49 The precinct was investigated, and among other findings, the investigators contend that Chapel's supervisor was aware that he was engaging in misconduct but tolerated it. The supervisor, Sgt. Donald Stone, is still on the force.

In fact, all of the officers involved in the scandal had been involved in misconduct prior to these incidents and were at times disciplined for infractions. Nonetheless, they were not deterred from engaging in further misconduct and were not supervised closely enough to prevent the violations from escalating in severity. During the Chapel trial, in an apparent attempt to reassure residents, Gwinnett Police Chief Carl White stated, "I realize now is a bad time for law enforcement, but everyone should remember that police are policing themselves."50 It would appear, at least in the case of Officer Chapel, that the chief's statement is inaccurate.

William "Wade" Wallace: On July 27, 1995, William Wallace led Cumming police officers and Forsyth County sheriff's deputies on a low-speed chase that ended when Wallace drove his car into a ditch. Cumming Police Officer J.D. Swansey reportedly beat Wallace with a flashlight as Forsyth County sheriff's deputies looked on; Wallace subsequently died of his injuries. One of the deputies eventually came forward to report the beating by Swansey, who, according to a Georgia Bureau of Investigations spokesperson, was known to have a serious drinking problem.51 In early September 1995, following the exhumation and autopsy of Wallace's body, Swansey turned himself in and was charged with murder, aggravated battery, aggravated assault and providing false statements.

To his credit, Forsyth County Sheriff Jerry Padgett attempted to fire one officer for failing to report the fatal beating and the officer's supervisor for allowing the officer to ignore his orders to ensure the reports were accurate. Hisdecision was overturned by the Civil Service Board, which ordered Padgett to reinstate the fired officers.52

Travis Ashley: In October 1991, Travis Ashley was traveling as a passenger in a taxi cab that was stopped by then-uniformed Police Officer David Stewart of the Floyd County Police Department based in Rome. Officer Stewart then beat Ashley, who suffered a fractured leg and a laceration to his head.53 Stewart claimed that Ashley assaulted him while in a state of intoxication and that Ashley's leg fractured when they both toppled to the ground. The case went to trial in March 1994, and the jury found in favor of Ashley, awarding him a total of $547,382. Ashley's attorney reports that the Floyd County Police Department took no disciplinary action against Officer Stewart as a result of the judgment or the allegations made by the alleged victim. In fact, Officer Stewart was subsequently promoted to the rank of inspector.

The Federal Role

When local prosecutors fail to pursue police brutality cases, it is the responsibility of the federal government to prosecute cases where an individual's civil rights may have been violated. Specifically, the Criminal Section of the Civil Rights Division of the Justice Department is responsible for prosecuting these cases. Yet, as in states throughout the nation, federal prosecution for criminal civil rights violations in Georgia is difficult and rare.54

Statistics gathered by the Transactional Records Access Clearinghouse (TRAC, a private research group that has collected Department of Justice statistics through Freedom of Information Act requests) do not inspire confidence in thefederal government's interest in, or ability to, prosecute civil rights cases. The data indicate that only one civil rights case in 1994, out of 169 referrals by the FBI to the Justice Department, was prosecuted in Georgia.55 That case did not involve a police officer or sheriff's deputy, according to the Assistant U.S. Attorney who brought the case.56 According to the Justice Department, no civil rights cases were prosecuted in Georgia in 1995, and the James W. Jackson guilty plea (see above) is the only 1996 case so far.57 Despite the difficulties in prosecuting these cases successfully-because jurors are predisposed to believe police officers, and the legal standard is rigorous in requiring willful deprivation of the victim's civil rights-this is an alarmingly low number of prosecutions.

According to Justice Department national data, of 8,575 complaints reviewed under the federal civil rights statutes in 1994, a scant seventy-six cases were filed for prosecution-less than 1 percent.58 Figures in previous years were similar.59 During an April 8, 1996 meeting with Richard Roberts, chief of the Criminal Section of the Civil Rights Division, Human Rights Watch asked aboutthis low rate of prosecution. Roberts stated that the data do not "tell the full story," because every complaint that arrives at his office is counted, regardless of its merit.60 Roberts provided a number of reasons why these cases can be difficult to prosecute, including lack of physical evidence and the shortage of credible witnesses. Victims in these cases, said Roberts, "are not the best kinds of witnesses," since they may be engaged in criminal behavior or may have criminal backgrounds. Still, Roberts contends that he does not shy away from strong cases, even if they involve unsympathetic victims.

Federal civil rights prosecutions also require "proof of specific intent" to deprive an individual of his or her civil rights, according to Roberts. When asked whether such a requirement makes these cases too difficult to prosecute and thereby undermines the intent of civil rights protections, Roberts contended that, while the cases are difficult, his office is able to pursue them; he does not advocate revising the civil rights statutes. When asked about the small number of prosecutions in Georgia, Roberts stated that he knew of no reason why civil rights prosecutions should be any more difficult there than in other states.

There are thirty-two attorneys with the Criminal Section of the Civil Rights Division. While the number of attorneys has slowly increased over the years, it does not appear to correlate with increasing numbers of police officers around the country.61 As of 1993, there were approximately 630,000 sworn officers, nationwide.62 This means that there are roughly 20,000 police officers for every Civil Rights Division attorney responsible for overseeing and prosecuting criminal civil rights violations.

Following the reaction to the Rodney King case63, the FBI initiated a four-hour civil rights training course for new and current police officers from throughout Georgia. Jerry Miles of the FBI's Atlanta office noted that four hours are not enough, but stated that police chiefs do not want to lose officers for a full day.64 While much of the information provided in the course's lesson plan is useful, statements such as "civil rights investigations account for less than one percent of the FBI's investigative efforts" and "historically ninety-five percent of the civil rights allegations made to the FBI are determined to be unfounded," seem intended to reassure police officers that they should not fear investigation or prosecution by federal authorities. Further, while the lesson plan states the FBI is unbiased in such investigations, a section of the plan provides defenses available to officers accused of brutality.

Conclusion and Recommendations

As described in this chapter, Georgia's law enforcement agents have committed serious human rights abuses, in violation of both domestic and international laws. Nonetheless, too many abusive police officers and sheriffs' deputies have avoided disciplinary sanctions and have enjoyed impunity for their actions. We urge the relevant authorities to implement the following recommendations that should help to make law enforcement officers from around the state accountable to the citizens they are sworn to serve and protect.

To Atlanta Mayor Bill Campbell:

* We urge you to issue a new administrative order that will permit the Civilian Review Board (C.R.B.) to operate as an authentic external check on the Atlanta Police Department. At a minimum, the C.R.B. should be provided with its own staff (including investigators), subpoena power and a public forum. Ideally, the C.R.B. should receive complaints directly from the public at the outset of an investigation, not just after its completion when a complainant is dissatisfied with the Office ofProfessional Standards' investigation. The C.R.B. should also be allowed to examine cases without having to wait until criminal and civil cases are completed by implementing rules that would preserve valuable evidence and testimony.

To Atlanta Police Chief Beverly Harvard:

* We urge you to request that the City Attorney's office notify O.P.S. about every civil lawsuit filed against an Atlanta police officer, the department, or the city by an individual alleging excessive force. The O.P.S. should interview the officers named in these types of complaints and initiate an investigation into the allegations unless the complaint is clearly frivolous. In any excessive-force case settled in favor of the plaintiff, an O.P.S. investigation must be initiated.

* Direct the O.P.S. to provide a report to the public, at least annually, that includes statistics on the number of complaints received and the number sustained. The report should include the number of shooting cases, with brief descriptions, and the status of related investigations or criminal prosecutions. Public reports from the O.P.S. should also provide information to the public about how to file complaints of abuse.

To Georgia Governor Zell Miller:

* We urge you to direct the Georgia Bureau of Investigations or appropriate agency to create a state-wide system to track officers who resign from police or sheriffs' departments once investigations into the officers' alleged misconduct, including the use of excessive force, have been initiated. The tracking system should also include the name of each officer who is dismissed for engaging in misconduct such as excessive force. The governor should issue an executive order requiring the reporting of such cases to the G.B.I., and this information should be used by all police administrators as part of background checks on new officers or sheriffs' deputies.

* Introduce legislation that would revise state law regulating grand jury procedures (O.C.G.A. Title 45-11-4 addresses police officers, and refers to Title 17-7-52 which describes special grand jury procedures for public officials). This legislation should remove the special privileges afforded police officers who are allowed to be present throughout grand juryproceedings, to make statements at the conclusion of the proceedings, and are not subjected to questions or rebuttals from prosecutors.

To United States Attorney General Janet Reno:

* We urge the Justice Department to compile and provide data regarding police abuse allegations around the country, as required by the Violent Crime Control and Law Enforcement Act of 1994. Because the Civil Rights Division was unable to provide Human Rights Watch with data on a specific state, Georgia, we must emphasize that this data should be collected so that it can be disaggregated in a number of ways, including by state. Furthermore, the Civil Rights Division and the Executive Office for U.S. Attorneys should be instructed to compile and distribute information in a coordinated fashion-the current practice of compiling data using different databases and codes results in conflicting information from each office and in duplication of effort.

* Examine whether the federal statutes (18 U.S.C. §§241 and 242), as written, are protecting the civil rights of individuals as intended. Given the extraordinarily low rate of federal criminal civil rights prosecutions in Georgia and nationally, we believe such a review is essential.

Georgia has the distinction of having carried out over 650 legal executions in this century, more than any other state in the U.S. Under its current, broadly worded death penalty law, which was upheld by the U.S. Supreme Court twenty years ago,2 Georgia has carried out twenty executions by electrocution. Another 120 people on Georgia's death row await execution.

As in most of the thirty-eight states in the United States where the death penalty is permitted, its application in Georgia is discriminatory, characterized by a denial of due process that particularly affects defendants who are poor or black. It follows on a tradition of unequal justice for African-Americans that frequently results in all-white juries condemning African-American defendants to death, and in capital punishment being sought and imposed most frequently in that small portion of homicides where the victim is white and the accused is black. Further, it is imposed almost exclusively on the poor-and since 30 percent of African-Americans in Georgia live below the U.S. poverty level-these discrepancies compound the problem of racial discrimination.3

Discrimination in the application of the death penalty in Georgia endures due to: underrepresentation of African-Americans in the judiciary, in prosecutors' offices and on juries, wide discretion exercised by prosecutors who seek the death penalty, and inadequate legal representation for the poor accused of capital crimes. These are serious faults in the judicial system which are not unique to Georgia; thestate's failure to offer equal protection to black or poor defendants is a microcosm of that problem throughout the United States. Unequal sentencing is serious enough; when it leads to execution it violates the most basic principles of the U.S. Constitution and international human rights law.

International Human Rights Standards

The Universal Declaration on Human Rights dictates that "everyone has the right to life," and "no one shall be subjected to ...cruel, inhuman or degrading...punishment."4 The U.S. is also party to the International Covenant on Civil and Political Rights (ICCPR). This covenant permits the death penalty "only for the most serious of crimes" and prescribes that it can "only be carried out pursuant to a final judgement rendered by a competent court."5 Moreover, the Second Optional Protocol to the ICCPR, opened for signatures in 1989, expressly directs: "No one within the jurisdiction of a state party to the present [second optional] protocol shall be executed."6 As of 1995, twenty-nine nations had ratified or acceded to the protocol.7

The U.S. is also party to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).8 CERD is the most comprehensiveinternational codification of the human rights principle of racial equality.9 It calls on governments to take steps to eliminate discrimination and to seek to prohibit discrimination under the law as well as to guard against discrimination arising as a result of the law.10 As described more fully below, at least in Georgia, the U.S. is not meeting its obligations under this treaty in its application of the death penalty.

The American Convention on Human Rights does not prohibit the death penalty, but seeks to limit its usage by: prohibiting its extension to crimes not already within its purview; barring its re-introduction in countries that had abolished capital punishment; and proscribing its use for "political offenses."11 Thirteen years after passage of the convention, these safeguards were recognized as only nascent steps, setting in motion "a progressive and irreversible process...[designed to reduce] the application of the penalty to bring about its gradual disappearance."12 In furtherance of this objective, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty was opened for signatures in 1990. The protocol's preamble explains that it constitutes a progressive development of the convention's death penalty provisions and is aimed at consolidating the increasing practice among American states of not applying the death penalty.13

Many of the United States' closest allies are parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), which originally allowed for the use of the death penalty.14 More recently, the Sixth Protocol to the European Convention directs that "the death penalty shall be abolished. No one shall be condemned to such penalty or executed."15

Authoritative guidance regarding the application of the death penalty is provided by the U.N. Safeguards guaranteeing protection of the rights of those facing the death penalty.16 The resolution requires that the death penalty only be carried out "pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial...including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings."17 The execution of juvenile offenders and the "insane" is prohibited by the resolution.18

Scholars of public international law have also begun characterizing the rapid pace of abolition since the 1980s as being analogous to those developments that eventually led to the universal acceptance, within customary international law, of the proscription against slavery and torture. Civilized nations around the globe have been steadily concluding that no amount of procedural or substantive precaution can guard sufficiently against the discrimination, arbitrariness andinherent cruelty of the application of the death penalty.19 Nonetheless, the United States, and Georgia, have ignored this marked international trend away from the use of the death penalty.

Background of the Death Penalty in Georgia

Georgia's death penalty is a direct descendant of racial oppression, racial violence and lynching.20 From colonial times until the Civil War ended in 1865, Georgia law expressly differentiated between crimes committed by and against blacks and whites.21 The law provided that the rape of a free white female by a black man "shall be" punishable by death, while the rape of a free white female by anyone else was punishable by a prison term not less than two, nor more than twenty, years. The rape of a black woman was punishable "by fine and imprisonment, at the discretion of the court."22

Disparate punishments-exacted by both the courts and by the mob-based upon the race of victim and the race of defendant continued in practice after the abolition of slavery in 1865. The threat that Congress might pass an anti-lynching statute in the early 1920s led Georgia and other southern states to "replace lynchings with a more `[humane] . . . method of racial control'- the judgment and imposition of capital sentences by all-white juries."23 As historian Dan Carter of Emory University observed:

Southerners . . . discovered that lynchings were untidy and created a bad press. . . . [L]ynchings were increasingly replacedby situations in which the Southern legal system prostituted itself to the mobs' demand. Responsible officials begged would-be lynchers to 'let the law take its course,' thus tacitly promising that there would be a quick trial and the death penalty . . . . [S]uch proceedings retained the essence of mob murder, shedding only its outward forms.24

The process of "legal lynchings" was so successful that in the 1930s, two-thirds of the people being executed were black.25

As racial violence was achieved increasingly through the criminal courts, Georgia carried out more executions than any other state in the twentieth century. There were 673 executions in the state between 1900 and the end of 1995.26 Georgia adopted electrocution as its means of punishment in 1924. Between 1924 and 1972, Georgia executed 337 black people and seventy-five white people.27

In part because of this history of discrimination, as well as other serious defects, the United States Supreme Court concluded in 1972 in a case from Georgia that the death penalty violated the prohibition against "cruel and unusual punishments" contained in the Eighth Amendment of the United States Constitution.28 But this stop at what Supreme Court Justice Thurgood Marshallcalled "a major milestone in the long road up from barbarism" was only temporary. New death penalty statutes were enacted almost immediately by Georgia and a number of other states, and the Supreme Court upheld those statutes in 1976.

Current Practices

Georgia's current death penalty statute allows imposition of the death penalty for any murder accompanied by a robbery, burglary, rape, or kidnapping, as well as any murder considered "outrageously horrible, vile and inhuman."29 These provisions give each of Georgia's forty-six elected prosecutors in judicial districts throughout the state vast discretion to decide whether to seek the death penalty in the many cases for which it is authorized; no state-wide standards establish in which cases death can be sought. All forty-six local prosecutors are white. Some prosecutors seek the death penalty frequently, while others seldom or never seek it.30

A person facing the death penalty who cannot afford a lawyer is assigned a lawyer by the presiding judge. The lawyers assigned are inadequately compensated for the demanding task of defending a capital case and often are provided no funds to investigate the case or present expert testimony. Many of the attorneys appointed to defend capital cases lack the competence and skills necessary to try a complex capital case. In trial after trial poor defendants have been given the death penalty because court-appointed lawyers have failed to present evidence in mitigation of punishment.

Because of the inadequacy of the lawyers appointed and the lack of resources, the mental illness or mental retardation of a defendant facing the death penalty may go unnoticed or may not be adequately addressed. Those impoverished defendants for whom mental impairment may be a a reason not to impose the death sentence are seldom provided expert witnesses with which to inform the jury as to the defendant's mental condition. Georgia put to death twomentally retarded men before passing a law in 1988 that prohibits further execution of the mentally retarded.31 Several mentally ill defendants, however, have been executed under Georgia's death penalty law, and Georgia law still does not prohibit execution of the mentally ill. Georgia law also still allows the execution of juvenile offenders as young as seventeen, with the Georgia Assembly recently considering lowering the age to sixteen.32

The Case of Wilburn Dobbs

The case of Wilburn Dobbs, one of the condemned on Georgia's death row, starkly illustrates the racial discrimination and incompetent legal representation that is tolerated in capital cases in Georgia. Dobbs, an African-American man accused of killing a white man, was referred to at his May 1974 trial as "colored" and "colored boy" by the judge and the defense lawyer and called by his first name by the prosecutor.33 Two of the jurors who sentenced Dobbs to death admitted after the trial that they used the slur "niggers" when referring to African-Americans.

Dobbs stood trial for his life only two weeks after being indicted for murder and four other offenses. He was assigned a court-appointed lawyer who later admitted that he did not know for certain until the day of trial that he was going to represent Dobbs, and "didn't know for sure what he was going to be triedfor."34 On the morning set for trial, the lawyer asked for a postponement, saying that he was "not prepared to go to trial" and that he was "in a better position to prosecute the case than defend it." Nevertheless, the trial court denied the motion, and the case proceeded to trial.

A federal court described the defense lawyer's attitude toward African-Americans as follows:

Dobbs's trial attorney was outspoken about his views. He said that many blacks are uneducated and would not make good teachers, but do make good basketball players. He opined that blacks are less educated and less intelligent than whites either because of their nature or because "my granddaddy had slaves." He said that integration has led to deteriorating neighborhoods and schools and referred to the black community in Chattanooga as "black boy jungle." He strongly implied that blacks have inferior morals by relating a story about sex in a classroom. He also said that when he was young, a maid was hired with the understanding that she would steal some items. He said that blacks in Chattanooga are more troublesome than blacks in Walker County [Georgia]. . . .The attorney stated that he uses the word "nigger" jokingly.35

During the penalty phase of Dobbs's trial, when the jury could have heard anything about his life and background and any reasons Dobbs should not have been sentenced to death, the lawyer for his defense presented no evidence. Nonetheless, despite the racism and the wholly inadequate legal representation, the courts of Georgia-and federal courts on habeas corpus review-repeatedly upheld Dobbs's conviction and sentence.36

Racial Discrimination

Race makes a case that would otherwise not be a capital case into one. Although interracial murders are only a small percentage of total homicides in the state, Georgia prosecutors seek the death penalty in 70 percent of cases involving black defendants and white victims, and in less than 35 percent of cases involving other racial combinations.37 Sixty percent of those executed by Georgia (twelve of twenty) have been African-American, and all twenty were poor. Six of the twelve African-Americans executed by Georgia since 1976 were sentenced to death by all-white juries.38 And, although over 65 percent of the victims of murders in Georgia each year are African- American,39 eighteen of the twenty cases in which executions have been carried out involved white victims, and over 80 percent of those on Georgia's death row are there for the murders of white victims.40

Two definitive studies-one examining national data and the other focusing on Georgia-have found racial discrimination in the application of the death penalty. In 1990, the U.S. General Accounting Office (G.A.O.) analyzed twenty-eight studies about capital sentencing and found a pattern of racial disparities throughout the country. For example, eleven of the first fourteen persons executed in neighboring Alabama since 1976 have been African-American.41 Three of the four executed by Mississippi have been African-American.42 The report concludes:

In 82 percent of the studies, race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistentacross data sets, states, data collection methods, and analytic techniques.43

Also in 1990, in a study accepted by the Supreme Court as authoritative, Prof. David Baldus of the University of Iowa, found that defendants in Georgia charged with murders of white persons received the death penalty in 11 percent of those cases, while defendants charged with murders of blacks received the death penalty in only 1 percent of the cases.44 Controlling for all other variables, Baldus found defendants in Georgia charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks.45 The exhaustive Baldus study controlled for 230 variables, leaving no doubt that race was the determinant factor in harsher sentencing.

All of Georgia's judges, at both the trial and appellate level, are popularly elected. As a result, capital cases are often tried before judges who may be more interested in winning the next election than in enforcing the protections provided by the Bill of Rights of the United States Constitution.46 Concern about the electorate's reaction to a judge's decision is heightened in high-profile capital cases. In discussing this problem, U.S. Supreme Court Justice John Paul Stevens stated:

The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher office-or who merely wish to remain judges-must constantly profess their loyalty to the death penalty....he danger that they will bend to political pressureswhen pronouncing sentence in highly publicized cases is the same danger confronted by judges beholden to King George III.47

African-Americans are underrepresented in the state's judiciary.48 The lack of racial diversity among judges, jurors, prosecutors and lawyers has a substantial impact on the quality of justice that blacks and other minorities receive in Georgia's courts. An African-American member of the Georgia Supreme Court has observed, "When it comes to grappling with racial issues in the criminal justice system today, often white Americans find one reality while African-Americans see another."49 Yet despite the fact that the criminal justice system often decides whether an African-American will lose his life or freedom, the decision is often based only on the version of "reality" seen by white people.

For the most part, African-Americans have no voice in the two most important decisions which determine sentencing: decisions by prosecutors with regard to (1) whether to seek the death penalty and (2) whether to settle a case with a plea bargain in which the prosecutor agrees to forgo the death penalty if the defendant agrees to plead guilty. And even after prosecutors make those decisions, African-Americans may be excluded from later decisions by juries about whether to impose death.

This underrepresentation has contributed to the handing down of more severe sentences for African-Americans and greater attention to cases in whichwhites have been victims.50 For example, an investigation of all of the murder cases prosecuted between 1973 and 1990 in Georgia's Chattahoochee Judicial Circuit, which includes Columbus, revealed how race played a role in the imposition of the death penalty.51 Although African-Americans were the victims of 70 percent of the homicides in the judicial circuit that includes Columbus, 85 percent of the capital cases in that circuit were white-victim cases.

The study also found that in cases involving the murder of a white person, prosecutors often met with the victim's family and discussed whether to seek the death penalty.52 In a case involving the murder of the daughter of a prominent white contractor, the prosecutor asked the contractor if he wanted to seek the death penalty. When the contractor replied in the affirmative, the prosecutor said that was all he needed to know. He obtained the death penalty at trial. He was rewarded with a contribution of $5,000 from the contractor when he ran successfully for judge in the next election.53 The contribution was the largest received by the district attorney.

In other cases in Columbus, the district attorney issued press releases announcing that he was seeking the death penalty after meeting with the family of a white victim. But prosecutors did not meet with African-Americans whose family members had been murdered to determine what sentence they wanted. The same study found that many African-American families were not even notified when cases involving the murder of a loved one were resolved.

Symbolism in Georgia's courtrooms only reinforces the racially charged context, with capital trials usually tried before a white judge sitting in front of theConfederate battle flag.54 Georgia adopted the Confederate battle flag as part of its state flag in 1956 to symbolize its rejection of the federal Constitution and the Supreme Court's decision in Brown v. Board of Education, which required racial integration of U.S. public schools.55 The flag was described as follows by a federal judge:

The predominant part of the 1956 flag is the Confederate battle flag, which is historically associated with the Ku Klux Klan. The legislators who voted for the 1956 bill knew that the new flag would be interpreted as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings.56

Despite the fact that the flag represents denial of equal protection of the laws to African-Americans and defiance of federal authority, it is displayed in most Georgia courtrooms. A few judges, mostly those of African descent, have removed the flag from their courtrooms. But African-Americans are underrepresented in the judiciary, in prosecutors' offices and in the bar, and it is thus unlikely that this symbol of unequal justice will be removed by state order in the near future. It is, unfortunately, a reflection of the quality of justice actually meted out in some capital cases involving blacks accused of crimes against whites.

Jury Selection

Even though African-Americans are often defendants in capital cases, they do not sit as jurors in some cases. Local prosecutors in predominately white suburban communities are among those who most frequently seek the death penalty. In those communities, such as Cobb and Douglas Counties, there are so few African-American residents that there is little likelihood they will be represented on the jury. But even in communities where there is a substantial number of African-Americans or other minorities in the population, prosecutors often succeed in preventing or minimizing their participation. Once a group of people have been qualified for jury service, each side is given a number of discretionary strikes to remove potential jurors. The prosecution is given ten strikes in a capital case in Georgia. Many prosecutors use these discretionary strikes to remove African-Americans from jury service.

When a prosecutor is allowed to use the overwhelming majority of his jury strikes against a racial minority, that part of the community is prohibited from participating in the process and the jury does not reflect the conscience of the community as required under U.S. law. For example, Joseph Briley, the prosecutor in Georgia's Ocmulgee Judicial Circuit, tried thirty-three death penalty cases in his tenure as district attorney in the circuit between 1974 and his resignation in 1994. Of those thirty-three cases, twenty-four were against African-American defendants.57 In the cases in which the defendants were black and the victims were white, Briley used 94 percent of his jury challenges-ninety-six out of 103-against black citizens.58 A study of jury strikes in Chatahoochee judicial circuit found that, in capital cases involving black defendants, prosecutors used 70 percent of jury strikes against African-Americans, obtaining all-white juries in six capital cases involving African-American defendants in a community that is 30 percent black.59

For a number of years, judges in the city of Columbus appointed one particular lawyer to capital cases who consistently failed to challenge theunderrepresentation of black citizens in the jury pools for fear of incurring hostility from the community.60 As a result, six African-Americans were tried by all-white juries in capital cases in that judicial circuit, and others were tried before juries in which African-Americans were substantially underrepresented.

Because of the history of discrimination in selecting juries in Georgia and elsewhere, the U.S. Supreme Court in 1986 adopted in Batson v. Kentucky a procedure that required prosecutors to justify jury strikes if they struck a disproportionate number of black jurors. The trial judge then decides if the strikes are due to race or to some legitimate reason having nothing to do with race. Nonetheless, Georgia judges at both the trial and appellate levels have readily accepted almost any excuse offered by prosecutors for striking African-American jurors. In Lingo v. State, for example, the Georgia Supreme Court upheld a prosecutor's use of all ten of his jury strikes against African-Americans to obtain an all-white jury in a capital case.61

And federal courts have upheld a number of specious explanations for jury strikes presented by prosecutors. Therefore, even though the Supreme Court, in Batson, prohibited racially based juror strikes, in practice prosecutors continue to exclude African-Americans from juries in capital, and other, trials.

Sentencing Disparities

As described in both the G.A.O. report and in the Baldus study described above, racial disparities are particularly evident in death penalty cases. Nevertheless, the United States Supreme Court, by a 5-4 vote, held in McCleskey v. Kemp that Georgia could carry out its death penalty law despite such racial disparities.62 The court accepted the racial disparities as "an inevitable part of our criminal justice system" and expressed its concern that "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system." Justice William Brennan, in dissent, characterized this concern as "a fear of too much justice."

Since McCleskey, courts have been unwilling to examine issues of racial bias. For example, William Henry Hance was executed by Georgia in 1994, even though jurors admitted in affidavits that racial slurs had been used during deliberations.63 No court even held a hearing on the racial attitudes of the jurors who sentenced Hance to death. In another case, where racial slurs were used by jurors during their deliberations, the Georgia Supreme Court upheld the deathsentence, contending that even though individual jurors had racial biases, they had not entered into deliberations.64

Indeed, public officials and courts in Georgia, as elsewhere in the U.S., have been remarkably indifferent to racial discrimination in the criminal justice system. After it was discovered in 1978 that a prosecutor instructed jury commissioners in one county to underrepresent black citizens on the master jury lists, Georgia Attorney General Michael Bowers defended the prosecutor's actions for ten years all the way to the United States Supreme Court, seeking to carry out the death sentence imposed on an eighteen-year-old youth. Although the U.S. Supreme Court struck down the conviction and sentence due to the racial discrimination,65 no action was taken against the prosecutor by the attorney general's office, the judiciary or the Georgia bar.

Legal Representation for the Poor

Inadequate legal representation leaves the poor without due process of law protections in cases where their lives are at stake. Procedural rules require that lawyers identify legal issues at trial; failure to identify an issue will result in the refusal of the courts to consider it on appeal. Therefore, the mistakes made by the lawyer representing a defendant in a capital case are usually not corrected on appeal. Furthermore, the lack of adequate legal representation at the post-conviction phase-a problem that has recently been exacerbated due to the elimination of federal funding for post-conviction legal assistance centers-has left many accused in capital cases virtually undefended.

The quality of both private and assigned representation in capital cases in Georgia is so bad that it was singled out by a 1990 American Bar Association study of the capital punishment process and described as follows:

Georgia's recent experience with capital punishment has been marred by examples of inadequate representation ranging from virtually no representation at all by counsel, to representation by inexperienced counsel, to failures to investigate basic threshold questions, to lack of knowledge of governing law, to lack of advocacy on the issue of guilt, to failure to present a case for life at the penalty phase. Even in cases in which the performances of counsel have passed constitutional muster . . . and executionshave been carried out, the representation provided has neverthe less been of very poor quality. In some instances, mistakes by counsel have resulted in the execution of one person while that person's codefendant has obtained relief on the identical issue.66

The vice president of the Georgia Trial Lawyers Association described the simple test used in a lot of counties to show if a defendant receives adequate counsel, called the mirror test. "You put a mirror under the court-appointed attorney's nose, and if the mirror clouds up, that's adequate counsel."67

Georgia has no state-wide, independent public defender system. Each county is allowed to have its own scheme for providing indigent defense. In most capital cases judges simply appoint members of the bar in private practice to defend indigents accused of crimes. The lawyers appointed may not want the cases, may receive little compensation for the time and expense of handling them, may lack any interest in criminal law, and may not have the skill to defend those accused of crime. In contrast to the virtually unlimited access to experts and investigative assistance by the prosecution, the lawyer defending the indigent accused in a capital case may not have any investigative and expert assistance to prepare for trial and present a defense. As a result, the poor are often represented by inexperienced lawyers who view their responsibilities as unwanted burdens, have no inclination to help their clients, and have no incentive to develop criminal trial skills.

The 1990 American Bar Association report pointed to numerous capital trials in Georgia in which attorneys appointed to defend a capital case failed to offer any evidence in mitigation, were unaware of the law, distanced themselves from their clients, and gave arguments that either conceded guilt or did more harmthan good.68 Some people were sentenced to death at trials where they were represented by attorneys trying their first cases, by attorneys who slept during parts of the trials, or by attorneys who were absent during parts of the trials. In one case, two attorneys presented different and conflicting defenses for the same client. One attorney, a former Grand Dragon of the Ku Klux Klan, presented a non-credible alibi defense, while the other lawyer asserted a mental health defense that acknowledged the accused's participation in the crime.69

One person who received inadequate representation was Gary Nelson, an African-American who spent eleven years on Georgia's death row without anything like adequate proof of guilt. Nelson was represented at his capital trial in 1980 by a lawyer who had never tried a capital case. The lawyer was paid at a rate of only $20 per hour. The defendant's request for a second lawyer on the case was denied.

The case against Nelson was based solely on the questionable opinion of an expert who found a hair on the victim's body he claimed came from Nelson. Nevertheless, the lawyer assigned to defend Nelson was not provided funds for an investigator and, knowing a request would be denied, did not seek funds for a forensic expert. The lawyer's closing argument was only 255 words long. He was later disbarred for other reasons.

Fortunately for Nelson, some lawyers volunteered to handle the post-conviction proceedings in his case without compensation and spent their own money to investigate his case. They discovered that the hair found on the victim's body, which had been linked to Nelson, lacked sufficient characteristics for microscopic comparison. Indeed, the Federal Bureau of Investigation had examined the hair and found that it could not be compared.70 As a result, Gary Nelson was released after eleven years on death row. But many are not as fortunate as Nelson, and even such blatant errors may not be discovered.

The first person executed under Georgia's current death penalty law, John Eldon Smith, who was white, was sentenced to death by an unconstitutionally composed jury, as was another person involved in the same crime who was tried separately in the same county. The other defendant's lawyers challenged the jurycomposition in state court; Smith's lawyers did not because they were unaware of a U.S. Supreme Court decision prohibiting gender discrimination in juries.71

A new trial was ordered for the co-defendant by the federal court of ap peals.72 At that trial, a jury which fairly represented the community imposed a sentence of life imprisonment. The federal courts refused to consider the identical issue in Smith's case because his lawyers had not challenged the exclusion of women in the state courts because they did not know the law. (The federal courts refuse to examine points of law that have not been presented first to the state courts.) Thus, because the co-defendant's lawyer knew the law and raised the point in state court, it was later considered by the federal court; because Smith's lawyer in state court was unaware of the law, it was not considered when another lawyer presented the issue to the federal judges. Smith was executed. Had the co-defendant been represented by Smith's lawyers in state court and Smith by the co-defendant's lawyers, the co-defendant would likely have been executed and Smith would have received a new trial.73

The second person executed in Georgia was a mentally retarded offender, convicted despite a jury instruction which unconstitutionally shifted the burden of proof on intent. He was denied relief because his attorney did not preserve the issue for review.74 The more culpable co-defendant was granted a new trial on the very same issue.75 Again, as with the case of John Eldon Smith, a switch of the lawyers could have reversed the outcomes of the case.

Other cases in which executions have been carried out have had the same poor quality of legal representation. For example, John Young, who was sentenced to death in 1976 in the same county as John Eldon Smith, was represented at his capital trial by an attorney who was dependent on amphetamines and other drugswhich affected his ability to concentrate, suffering severe emotional strain, physi cally exhausted, and distracted because of marital problems, child custody arrange ments, difficulties in a relationship with a lover, and the pressures of a family business.76 Young was sentenced to death. A few weeks later, Young met his attorney at the prison yard in the Bibb County Jail. The lawyer had been sent there after pleading guilty to state and federal drug charges. Georgia executed John Young on March 20, 1985.

The Mentally Impaired Poor77

The mentally impaired are particularly affected by poor legal representation and the denial of expert assistance which is necessary to document and present a diagnosis of mental illness to the jury. Lawyers appointed to defend capital cases may be unaware of the symptoms of schizophrenia, fetal alcohol syndrome, brain damage, and other mental disorders suffered by their clients. Georgia judges often deny funds for mental examinations and expert witnesses, thus denying juries critical information which is necessary for their decision between life imprisonment and death.

One tragic example was the case of James Messer. He was provided with a court-appointed lawyer who, at the guilt phase, gave no opening statement, pre sented no defense case, conducted cursory cross-examination, made no objections, and then emphasized the horror of the crime in some brief closing remarks. Even though Messer's severe mental impairment was important to issues at both the guilt and penalty phases, the lawyer presented no evidence regarding it because he failed to make an adequate showing to the judge that he needed a mental health expert.78 He also failed to put on evidence of Messer's steady employment record, military record, church attendance, and cooperation with police, and in closing repeatedly hinted that death was the most appropriate punishment for his own client.79 Thecourts rejected a claim that this was ineffective counsel, and Messer was executed July 28, 1988.

Despite these and other shocking instances of inadequate representation, the judiciary, the bar and the legislature in Georgia have done little to improve the situation. Although, in 1992, a Multi-County Defender office was established within the Georgia Indigent Defense Council (a governmental office) to provide specialists to defend capital cases, the office has never been given sufficient resources to grow beyond four attorneys. There are usually over one-hundred capital cases pending pre-trial in Georgia at any one time, thus the impact of the office is quite limited. As a result, most poor people facing the death penalty in Georgia continue to receive poor quality representation.

Under Gideon v. Wainwright,80 all states must provide counsel to indigent defendants-including in capital cases-up through their direct appeal to the state's highest court. However, as described above, quality of defense is not guaranteed in practice. In subsequent state post-conviction proceedings, or in the U.S. Supreme Court, there is no constitutional right to representation and volunteer counsel often must be recruited.81 Clearly the work of qualified counsel at these later stages is crucial. However, since 1988, this role had been filled by post-conviction defender organizations, funded by federal grants. They were recently de-funded, making the prospects for adequate defense of the indigent at the crucial later stages of appeal very slight indeed.

Georgia provides no statutory right to capital post-conviction counsel and no state compensation for representation. The two remaining lawyers at the Georgia Resource Center (a post-conviction defender organization) represent twenty-four prisoners in state post-conviction proceedings. Attorneys representing defendants in capital cases are overwhelmed, with one stating, "We're doing acrude kind of triage, trying to stay with the cases where we have time invested and can do our best with our limited resources...."82

Recent Developments Regarding Habeas Corpus Restrictions

The quality of justice is expected to decline in the future as a result of less oversight by the federal courts of death sentences imposed in state courts. In April, President Clinton signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996, which contained new restrictions on habeas corpus appeals for all defendants, including those facing execution. The new law seeks to expedite the review of capital cases by limiting federal review of state court convictions except for cases where the previous state court decision was unreasonably wrong. The new law, in most instances, prohibits federal courts from hearing factual evidence not heard during trial but necessary to deciding whether the Constitution was violated. These restrictions were proposed despite the fact that approximately 40 percent of state capital cases reviewed in federal habeas corpus are found to contain harmful constitutional errors and are overturned.83

The new law also sets rigid time limits both on counsel and federal courts that will make it difficult for lawyers or the courts to perform effectively and will most likely deter many lawyers from handling such cases. Coupled with the recent elimination of federal support for legal programs that provided representation for persons facing the death penalty, this has left many death row prisoners without essential legal advice. There have been countless examples of poor representation; the new restrictions will only make this situation worse.

Furthermore, as described above, international human rights standards permit capital punishment only in exceptional cases and require that the legal procedures used in the application of the death penalty include extraordinary safeguards to avoid error. The new habeas corpus restrictions not only ignore the international trend away from capital punishment, but also violate the spirit of international norms by proposing to make executions more common and errors in capital cases more likely.

Conclusion and Recommendations

Georgia should abolish the death penalty, which is a cruel and unusual punishment. Failing a change in the law, Georgia could take a number of interim steps to reduce the arbitrariness and racial discrimination in the infliction of its death penalty and to provide more equal treatment for all its citizens:

* An independent, state-wide public defender system should be established to take responsibility for indigent defense in the state to ensure that impoverished defendants are represented by lawyers able and willing to devote the time, resources and skills necessary in capital cases. At the very least, the Multi-County Defender's office should be provided with the staff and other resources necessary to fulfill its duties in representing poor defendants in capital cases.

* The governor should appoint a preview panel tasked with overseeing the decisions of local prosecutors who seek the death penalty to ensure that race, passions of the moment, and local politics have not entered into the decision.

* The state courts should adopt standards for hearing and resolving claims of racial discrimination in capital cases that comport with common sense and reality. In keeping with international human rights obligations, the courts must consider the effects of racial discrepancies in the application of the death penalty.

* The Georgia judiciary must take steps to end prosecutors' practice of removing a disproportionate number of African-Americans from capital case juries and to seek diversity in capital case juries.

Introduction

The impact of crime control policies on minorities is among the most important, disturbing and contentious social issues facing the United States. Overwhelming data establish the striking proportion of African-Americans entangled in the criminal justice system-on any given day one in three young black American males is either in prison or jail, on probation or parole.1 Drug laws an