Fleming v. Zant

• Citation: 259 Ga. 687,386 S.E.2d 339
• Decision Date: 01 December 1989
• Docket Number: No. S89A0241,S89A0241
• Parties: FLEMING v. ZANT, Warden.
• Court: Supreme Court of Georgia

Page 339

386 S.E.2d 339

259 Ga. 687

FLEMING v. ZANT, Warden.

No. S89A0241.

Supreme Court of Georgia.

Dec. 1, 1989.

Reconsideration Denied Dec. 20, 1989.

[259 Ga. 701] Kenneth Shapiro, Paul, Hastings, Janofsky & Walker, Mark E. Olive, Gary A. Alexion, Benna Kushlefsky, for Son Fleming.

Michael J. Bowers, Atty. Gen. and Mary Beth Westmoreland, Sr. Asst. Atty. Gen., for Walter Zant, Warden.

Bondurant, Mixon & Elmore, Emmet J. Bondurant, Atlanta, amicus curiae.

CLARKE, Presiding Justice.

We granted this appeal from the denial of a petition for habeas corpus in order to consider the impact of the 1988 amendment to OCGA § 17-7-131 on the validity of Son Fleming's death sentence. ¹ For the reasons that follow, we conclude that the new statute reflects a societal consensus against the execution of mentally retarded defendants. Executing a mentally retarded defendant would therefore constitute cruel and unusual punishment prohibited by the Georgia Constitution. We remand this case for a determination of whether Fleming has presented sufficient evidence to warrant a jury trial on the issue of mental retardation.

In 1977, Son Fleming and two other defendants were convicted of murdering a police officer. Fleming was sentenced to death. In the action below, he alleged that newly discovered evidence demonstrates that he is mentally retarded. ² This evidence indicated that in 1966 Fleming suffered gunshot wounds and applied for Social Security disability benefits. He was declared totally disabled and awarded benefits. Documents from his Social Security file indicate that the basis for the disability determination was not the gunshot wounds, but rather the evidence that he was mentally retarded, organically brain damaged and psychotic. Because he was unable to handle his financial affairs, his wife was made the payee for his benefits. He continued to receive benefits until he was incarcerated for murder.

In 1988 the legislature passed an amendment to OCGA § 17-7- 131. Under the amended statute, the jury in a capital trial must decide at the time of the trial on guilt or innocence of the defendant whether the defendant is "guilty but mentally retarded". OCGA § 17-7-131(c)(3). If the defendant is found to be guilty but mentally retarded, "the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life." OCGA § 17-7-131(j). The amendment is to be effective "in the trial of any case in which the death penalty is sought which commences on or after July 1, 1988." Id. On its face the statute does not apply to Son Fleming, who was tried more than ten years ago.

1. Fleming contends that, in spite of the language in the statute giving it prospective application, constitutional guarantees of due process and equal protection require that the statute be given retroactive effect. He argues that the distinction between those cases that have been tried and those that have not is arbitrary and capricious: it discriminates without rational basis between Fleming and other equally culpable mentally retarded defendants in violation of due process and equal protection. We disagree.

According to Fleming's argument, the legislature could never enact a statute that would ameliorate or repeal a prior sentencing provision unless the new law were given retroactive effect. The Constitution contains no such requirement. See U.S. v. Sorondo, 845 F.2d 945 (11th Cir.1988). Where a criminal statute does not discriminate on racial grounds or against a suspect class, equal protection and due process concerns are satisfied if the statute bears a "reasonable relation to a proper legislative purpose" and is "neither arbitrary nor discriminatory." U.S. v. Holmes, 838 F.2d 1175, 1177 (11th Cir.1988) (quoting Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934)).

The amendment to OCGA § 17-7-131 does not improperly discriminate among classes of defendants. It distinguishes between cases that have been tried and those that have not. This classification is neither arbitrary nor discriminatory. The legislature had to choose some effective date. And, although the legislature certainly could have selected another effective date, such as the date of the offense or the date of sentencing, our responsibility is not to determine whether the legislature selected the best of possible alternatives, but rather to decide whether the legislative decision is a rational one. Holmes, supra, at 1178. We conclude that it is. The classification bears a reasonable relationship to a legitimate legislative concern for the finality of criminal convictions. Thus, we conclude that Fleming's equal protection and due process claims are without merit.

2. Fleming next argues that the passage of the amended statute renders his death sentence disproportionate under OCGA § 17-10-35(c)(3). He argues that no case will again come before this Court for direct review of a death sentence imposed on a mentally retarded person. He says that his sentence is therefore disproportionate to that imposed against similar defendants in similar cases in Georgia.

OCGA § 17-10-35(c)(3) does not require this Court to undertake a de novo proportionality review whenever new information about the defendant is discovered or whenever a new legislative enactment changes the penological landscape. We do not reach the issue of whether there may be some circumstances under which a second proportionality review would be appropriate. It clearly would not be proper, however, to undertake a proportionality review of Fleming's case at this time. This is true because there has been no judicial determination that Fleming is mentally retarded. If he is not, there is no reason to conduct a second proportionality review. If he is retarded, our holding in division three, below, is sufficient to correct any proportionality problem.

3. Fleming next argues that his sentence violates the guarantee against cruel and unusual punishment found in the Eighth Amendment to the U.S. Constitution and in Article I, Section I, Paragraph 17 of the Constitution of Georgia of 1983.

Both the Georgia and the federal constitutions categorically prohibit inflicting cruel and unusual punishments. A punishment is cruel and unusual if it " '(1) makes no measurable contribution to accepted goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.' " Wyatt v. State, 259 Ga. 208, 209, 378 S.E.2d 690 (1989) (quoting Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)). Further, the constitutional standard reflects society's view of what punishments are cruel, and prohibits those that "disgraced the civilizations of former ages, ... mak[ing] one shudder with horror to read them." Dutton v. Smart, 222 Ga. 35, 148 S.E.2d 396 (1966); Whitten v. State, 47 Ga. 297 (1872). In other words, whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the " 'evolving standards of decency that mark the progress of a maturing society.' " Penry v. Lynaugh, 492 U.S. 302, at ----, 109 S.Ct. 2934, at 2953, 106 L.Ed.2d 256 (1989) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion)).

To ascertain how society currently views a particular punishment, this court, like the U.S. Supreme Court, considers objective evidence. Such evidence may include information gathered from polls or studies, data concerning the actions of sentencing juries, etc. See, Id. 109 S.Ct. at 2953. However, legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment. Id. Those enactments may change from time to time and as they do those changes amount to evidence of the shifting or evolution of the societal consensus.

In Penry v. Lynaugh, supra, the United States Supreme Court decided that the execution of mentally retarded people is not Recently, the Georgia Senate passed a resolution urging the Board of Pardons and Paroles to give special consideration to commuting the sentences of mentally retarded offenders that had been sentenced to death, citing the poll and stating, "... executing a retarded offender destroys public confidence in the criminal justice system." Senate Resolution 388. Further, this state's elected representatives, voicing the will of the electorate, have spoken on the subject and have declared that if a defendant is found to be mentally retarded, "the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life." OCGA § 17-7-131(j). The legislative enactment reflects a decision by the people of Georgia that the execution of mentally retarded offenders makes no measurable contribution to acceptable goals of punishment. ³ Thus, although there may be no "national consensus" against executing the mentally retarded, this state's consensus is clear.

"at present" prohibited by the Eighth Amendment to the U.S. Constitution. Penry, 109 S.Ct. at 2955. This decision was based in great part on the absence of any "national consensus" against executing the mentally retarded. In contrast, the objective evidence indicates that a consensus against execution of the mentally retarded does exist among Georgians.

The "standard of decency" that is relevant to the interpretation of the prohibition against cruel and unusual punishment found in the Georgia Constitution is the standard of the people of Georgia, not the national standard. Federal constitutional standards represent the minimum, not the maximum, protection that this state must afford its citizens. Harris v. Duncan, 208 Ga. 561, 67 S.E.2d 692 (1951). Thus, although the rest of the nation might not agree, under the Georgia Constitution, the execution of the mentally retarded constitutes cruel and unusual...