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The Death Penalty Appeals Process

Created by FindLaw's team of legal writers and editors.

The death penalty has a long and embattled history in the United States. Some people believe it's the ultimate deterrent to criminal activity, although this claim isn't supported by research. Others believe it's cruel and unusual punishment and shouldn't be used in a civilized society, although some convicts may prefer execution to a lifetime in lockup. Whatever side of the spectrum you fall on, it's important to note that just because a person is sentenced to death doesn't mean they'll automatically 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. Many of these sentences are overturned on appeal, while some of those convicted of capital offenses have been exonerated through DNA analysis.

Defendants should be aware of and possibly pursue these avenues if they're sentenced to death, depending on the circumstances of their 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.

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. 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 Professional Help With 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, or any criminal appeal, you should contact an experienced criminal defense attorney in your area now to learn more.

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