Basing the ultimate punishment on anything less than unanimity is of dubious constitutionality.

Carol Steiker, a death penalty expert at Harvard Law School, said it could violate the 14th Amendment guarantee of due process and the Eighth Amendment ban on cruel and unusual punishment. Although the Supreme Court allows non-unanimous juries in many cases, Ms. Steiker said, death sentences require the highest standards.

“As the Supreme Court tends to say, ‘Death is different,’ ” she said. “It’s different in severity and it’s different in finality. This case really illustrates one of the problems with states trying to maintain thoughtful and circumscribed death penalty rules. There’s incredible pressure on these legislatures to change the laws at critical moments after high-profile cases.”

Rather than recognizing that Nichols' lawyers did an outstanding job of persuading jurors that there was more to Nichols than than his horrific actions on a single day of his life, Georgia's conservatives are blaming the defense attorneys for getting in the way of a nice clean execution.

State Senator Preston W. Smith, a Rome Republican, accused defense lawyers of spending like “drunken sailors on shore leave” to provide an “O. J. Simpson-style defense, all on the taxpayer’s dime.”

Never mind that the prosecution spent $3 million to convict Nichols. It's always the cost of defense that's viewed as a waste of money -- particularly when the defense is successful.