The Death Penalty Appeals Process

By FindLaw Staff | Legally reviewed by Evan Fisher, Esq. | Last reviewed November 24, 2021

Capital punishment, or the death penalty, has a long history in the United States. Over time, the Supreme Court has restricted its use. Likewise, a majority of state governments have abolished it, declared moratoriums on executions, or simply abandoned the practice.

Advocates claim that capital punishment deters violent crime. The research data is mixed and tends to suggest otherwise. Opponents argue that execution is cruel and unusual punishment, a belief widely held in other parts of the world.

Despite its decline in usage, people are still sentenced to death and executed in the U. S. The modern process is lengthy, and it affords several opportunities for the prisoner to escape the ultimate punishment.

This article provides an overview of the death penalty appeals process from state to federal courts. It includes information on direct appeals, post-conviction appeals, and the federal habeas corpus process.

Death Sentence Frequency

The number of people sentenced to death in the U.S. in any given year has fallen precipitously since its high of 315 in 1996. In 2020, only 18 people were executed.

A Washington Post article found that of the 8,466 death sentences handed down between 1973 and 2013, only 16% of those individuals (1,359) were executed. Many of those sentences were overturned on appeal. Other prisoners were exonerated through DNA analysis.

Of the 170 convicts that were executed in the years 2014-2020, over a third of those prisoners were executed by a single state — Texas.

Appealing a Death Penalty Sentence in State Court

Any person who has been sentenced to the death penalty (now called an appellant) has a right to appeal. Some states allow the sentence and the verdict to be appealed separately.

The defense team has a number of steps they can pursue. These include post-trial motions for acquittal, asking for a reduction in the sentence, motions for a mistrial, and requesting a new trial.

If none of these actions result in a change in sentencing, the next step is a direct appeal. A direct appeal is not a new trial. No new evidence can be admitted. The judge is limited to considering only issues from the original trial.

Depending on the state, this first appeal will go to the state appellate court.

If the appellate judge's verdict is unfavorable, the defense team can ask the state's highest court to hear the case. In some states, the highest court is obligated to review every case with a sentence of capital punishment. In other states, the highest court is not required to hear the case but can do so at its discretion.

Appealing a Death Penalty Sentence in Federal Court

If all avenues have been exhausted at the state level, the appellant can appeal their case at the federal level. They can file a writ of habeas corpus in federal district court.

Appellants cannot take their cases immediately to the federal courts because the judicial system gives state courts an opportunity to fix any mistakes that they made. Defense teams must raise issues of defective process or rights violation in state courts. If they fail to do so, they may be prevented from bringing such arguments later in federal proceedings.

If a defendant loses in federal district court, they can petition for a writ of certiorari with the federal appellate court.

Finally, they can petition the U. S. Supreme Court. In Supreme Court cases, the defense is asking for a review of federal constitutional issues. The defense team can also bring up issues outside the trial record, such as:

Ineffective assistance of counsel
Juror misconduct
Newly discovered evidence
Brady violations (if the prosecutor failed to disclose evidence that would have been favorable to the defense)

Because of the multiplicity of proceedings, capital punishment cases can take decades to work their way through the criminal justice system.

Relief can also come from outside the criminal justice system. A prisoner can receive a pardon or clemency from the governor of the convicting state. Some states also empower executive clemency boards or parole boards to delay executions.