ATLANTA (AP) — A man scheduled for execution next month should be resentenced because he wouldn’t get the death penalty if he were sentenced today, his lawyers argued in a court filing Wednesday.

Robert Earl Butts Jr., 40, is scheduled to die on May 3 at the state prison in Jackson. Butts and 41-year-old Marion Wilson Jr. were convicted and sentenced to death in the March 1996 slaying of Donovan Corey Parks in central Georgia.

The state and federal constitutions prohibit “cruel and unusual” punishment, and the state prohibition on such punishment depends on the “evolving standards of decency of the people of Georgia,” Butts’ lawyers wrote in a filing seeking a new sentence in Baldwin County Superior Court, where he was originally sentenced.

The murder for which Butts and Wilson were sentenced had a single victim and one aggravating factor, a circumstance that increases the severity of a crime and increases the possible sentence. According to sentencing data obtained and analyzed by Butts’ lawyers, no one has been sentenced to death for a murder with one victim and one aggravating factor in over a decade.

“In other words, the people of Georgia no longer consider single-decedent, single-aggravator murder to be among the ‘worst of the worst’ offenses for which the death penalty must be reserved,” Butts’ lawyers wrote.

For that reason, they argue, he should be resentenced.

The Georgia attorney general’s office on Wednesday declined to comment on Butts’ lawyers request to halt his scheduled execution and to hold a new sentencing trial.

Butts’ lawyers analyzed 246 cases in which the state filed a notice to seek the death penalty and a sentence was imposed from 2006 to 2017.

During that time, of the 166 cases with a single victim, only seven, or 4.2 percent, resulted in a death sentence. And in the 21 cases with one aggravating factor, only one, or 4.8 percent, resulted in a death sentence.

Under the state and federal constitutions, “cruel and unusual” punishments “include a sentence that is arbitrarily or rarely imposed,” Butts’ lawyers wrote. The fact that no one in Georgia has been sentenced to death for a single victim, single aggravator murder in 10 years “raises a threshold inference that Butts’ death sentence is grossly disproportionate,” they argue.

Attorneys for Butts have also argued repeatedly that his trial lawyers were ineffective and failed to thoroughly investigate his case or to present mitigating evidence, including a childhood characterized by abuse and neglect that could have spared him the death penalty. State and federal courts have rejected his appeals.

His lawyers argued in a federal court filing earlier this month that a Georgia Supreme Court opinion published in January opens the door for a federal judge to consider his claims of ineffective assistance of counsel. The state rejected that argument in a filing Wednesday.

Butts and Wilson asked Parks for a ride outside a Walmart store in Milledgeville, about 93 miles (150 kilometers) southeast of Atlanta. After they’d gone a short distance they ordered him to stop the car, dragged him out and killed him with a single shot to the back of his head, prosecutors said.

They tried unsuccessfully to sell Parks’ car and ended up driving it to a remote part of Macon and setting fire to it.

Appeals in Wilson’s case are still pending.

– KATE BRUMBACK, Associated Press

 

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