Capital Punishment – Procedures And Appeals For Death Penalty Cases

Sarah from San Diego asked about the rules and procedures for capital punishment. The plot in her current manuscript centers on a lawyer’s attempt to free her husband who has been charged with the brutal rape and murder of a college student.  Because Sarah’s novel is set in a small Northern California town, I have used California as an example, but the overall procedures for capital punishment cases in other states are generally the same. As always, consult a professional criminal lawyer in your jurisdiction for death penalty specifics. Here is your answer, Sarah.

As most of us know, capital punishment is a government-sanctioned practice of killing a person guilty of serious crimes. There are currently 31 states with the death penalty. It is the ultimate criminal sentence, which the Eighth Amendment of the United States Constitution limits to “aggravated murder” committed by legally competent adults. This means a murder can only be punished by death if there are special aggravating circumstances present like murders that include multiple deaths, rape, robbery, or the murder of a police officer on duty or child. These factors vary greatly from state to state so do your research.

As for legally competent adults, the United States Supreme Court has been clear — no mentally disabled criminals or children under the age of 18 at the time the crime was committed.

On a side note, Sarah’s plot is current day. Be aware that if your plot is set in the 70’s, the death penalty was suspended in 1972 by a Supreme Court decision declaring the imposition of the death penalty unconstitutional. Then in 1976, based on a number of procedures enacted by the states to address the Supreme Court’s concerns, the death penalty was reinstated via a bifurcated system of guilt/innocence and sentencing phases.

Guilt-Innocence Phase

Prosecution begins when the District Attorney charges the defendant with capital murder. During the guilt phase, the jury decides if the prosecution has proven beyond a reasonable doubt the defendant is guilty of murder with at least one special circumstance. For stages of a criminal trial, see my early post Bail To Sentencing.

Sentencing Phase

Once the jury finds the defendant guilty, the penalty phase begins. Some states allow sentencing to be decided by a judge (or three judges). Most states decide by jury. For California, the jury will hear both aggravating and mitigating evidence to either return a verdict of death or life in prison. For most states, the decision must be unanimous, although some don’t require it like Florida, which has a super majority. If a death sentence is handed down, the judge in most states (including California) can reduce the death sentence to life without parole if there is good reason. But the judge has no authority to change a life sentence to a death sentence.

If there is a hung jury (i.e. not unanimous), states differ as to what happens next. The prosecution can retry the case before another jury, the judge can decide the sentence, or the criminal gets a life sentence. In a state with three-panel judge sentencing, if one judge opposes the death penalty, then a life sentence is handed down.

Once a defendant is sentenced to death, he can appeal his capital conviction in both state and federal courts. The appeal process is lengthy, complicated, and can span years.

Direct Appeal

This is the first of the state appeals (in California the appeal is filed with the California Supreme Court). The appellate court determines if the death sentence was legally sound based on the record (i.e. the evidence as applied to the law). Both the defendant and the State file briefs, and oral arguments are heard. The defendant’s attorney argues there was an error during trial and the defendant’s death sentence should be reversed. The appellate court can either: 1) affirm the lower court’s decision, 2) reverse or nullify the decision due to legal errors during the sentencing trial and order a new sentencing, or 3) acquit the defendant and order the next severe punishment (usually life imprisonment without parole).

If the sentence stands on direct appeal, the defendant can appeal to the United Sates Supreme Court by filing a petition for a writ of certiorari. Basically, the defendant claims the State appellate court was wrong when deciding his federal constitutional rights were not violated at trial. In the majority of cases, the United States Supreme Court refuses to review the case and denies the petition for writ of certiorari.

State Habeas Corpus

The next step is for the defendant to seek state habeas corpus review. Here the prisoner can challenge his sentence on any grounds that could not have been reasonably raised during trial or direct appeal. This means the defendant is raising claims based on facts outside the trial record. One common claim would be ineffective assistance of counsel.

In California, the petition for writ of habeas corpus is filed with the California Supreme Court. Both parties file briefs and give oral arguments. The court will issued a decision quickly (90 days in California). If the defendant’s petition is denied, he can appeal to the United States Supreme Court via a writ of certiorari like with the direct appeal. Again, such review is rarely granted.

At this point, the state sets an execution date.

Federal Habeas Corpus

This next appeal is filed in the federal district court, and is limited to ensuring that the state court adequately protected the prisoner’s federal constitutional rights. The defendant can bring new evidence of innocence if it is extremely compelling.

If the federal court refuses to grant the writ of habeas corpus, the defendant can appeal to the United States Court of Appeals (in California this would be the Ninth Circuit). If the death sentence is upheld, the defendant can seek a rehearing with the appellate court. If the death sentence is still upheld, the defendant can appeal to the United States Supreme Court. If the Supreme Court upholds the sentence, then the trial court sets another execution date.

Clemency And Alternative Appeals

With the appeal process exhausted (although states and the federal government allow for multiple last-minute habeas corpus petitions to be filed under limited conditions), the defendant still has other options to overturn his sentence. Some prisoners challenge a state’s method of execution as cruel and unusual punishment in violation of the Eighth Amendment. Others seek executive clemency asking the Governor to grant a pardon or reprieve an execution. Once these routes have been exhausted and the death sentence upheld, the prisoner is executed.

Methods Of Execution

Lethal injection is considered the most humane form of execution and is currently the most common. Usually a three-drug protocol is used: an anesthetic, a paralytic agent like pancuronium bromide, and something to stop the heart such as potassium chloride. Single-drug protocols usually use an overdose of an anesthetic. A handful of states allow the defendant to choose various alternatives to lethal injection – electrocution, gas inhalation, hanging, or firing squad. See for more information on authorized methods of execution in the United States.


If your current work of fiction involves the death penalty and you have questions about the rules and procedures, we would love to hear from you.


Photo Credit:  joshrushing via VisualHunt / CC BY-NC-SA

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