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The Death Penalty Appeals Process

The death penalty has a long and embattled history in the United States. Some people believe it is the ultimate deterrent to criminal activity and should remain on the books. Others believe it's cruel and unusual punishment and should not be used in a civilized society. Whatever side of the spectrum you fall on, it is important to note that just because a person is sentenced to capital punishment doesn't mean that he or she automatically will be executed the following week -- or ever. In fact, 8,466 death sentences were handed down by U.S. courts and 1,359 individuals were executed between 1973 and 2013, according to the Washington Post — that’s only 16 percent. Needless to say, the death penalty can be a long and drawn out process. There are several appeals processes that defendants should be aware of and possibly pursue, depending on the circumstances of each case.

The following is an overview of the death penalty appeals process for state cases including information on direct appeals, post-conviction appeals, and the federal habeas corpus process.

Remember, if you or someone you love has been handed a capital punishment sentence, you should have a strong legal advocate on your side. There are strict timelines that must be followed when filing any appeal, so it is important to act quickly on the advice of counsel. Also, there is a different process for appealing a federal death penalty sentence, so you should speak with a federal criminal defense attorney for more information.

Direct Appeal as of Right (State Court)

In a state court case, the appellant (formerly known as the defendant) has an appeal as of right in cases where the death penalty is imposed. Depending on the state, this appeal will first go to the appellate court. Keep in mind, a direct appeal is limited to issues from the trial, not new evidence. If the intermediate court, the appellant can ask the state's highest court to hear the case, but these types of appeals are discretionary, meaning the state's highest court is not required to hear them.

If this avenue doesn't work, the appellant's attorney can try to petition for a writ of certiorari with the U.S. Supreme Court, requesting a review of federal constitutional issues, assuming there are viable issues in the case. At this point, the appellant can bring up issues outside the trial record such as:

What if That Doesn't Work: Going to Federal Court

You've followed all the state court processes for a death penalty appeal, but you aren't getting anywhere. All hope is not lost. You still have a chance to appeal your case at the federal level. Simply put, once you have tried everything in state court, you can file a writ of habeas corpus in the federal district court at the trial level. Here, you can only raise issues already raised at the state level, not new ones. Why? These are state court cases, not originally federal cases. If a defendant continues on a losing streak at the trial level, they can continue to appeal all the way up, by filing a writ with the federal appellate level and then to the U.S. Supreme Court. What does all of this mean? These types of cases can take years, and sometimes decades, to proceed through the criminal justice system.

The Death Penalty Appeals Process: Additional Resources

Get a Free Review of Your Criminal Case

The death penalty appeals process can be slow and drawn out. But that is one way to help ensure that our government is taking a close look at these types of cases and an appellant is given all possible options for attacking their case before facing the ultimate penalty. If you are going through the appeals process in a death penalty case, get a free case review from a criminal defense attorney in your area now to learn more.

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