How to Appeal a Death Sentence

A 1972 Supreme Court opinion emphasized "fair and expeditious" review of death penalty cases.

In the United States, the application and legality of capital punishment differ greatly from state to state. As of 2011, 34 states still perform executions, while 16 states do not use the death penalty. According to Amnesty International, as of December 2010, 96 countries have eradicated the death penalty for all crimes. In 2011, the Death Penalty Information Center reported that, since 1973, over 130 people have been released based on evidence of their innocence, and currently the DPIC approximates an average of five death row exonerations per year. A 1972 Supreme Court ruling attempting to resolve issues regarding the Fourth, Eighth and 14th Amendments, as well as judicial discretion concerning states' rights, instigated the creation of an intricate appeals process to guarantee the rights of death row inmates.

Instructions

The Direct Appeal

1. File a notice of appeal with the state District Court. Everyone sentenced to death automatically receives the opportunity to petition for a direct appeal.

2. File applicable briefs with the state District Court. All briefs submitted on direct appeal are limited to trial issues.

3. Present oral arguments. The prosecutor and the defense hold oral arguments supporting their briefs in front of a panel of judges. The judges may dismiss the petition, thus affirming the conviction and sentence, or they may overturn the conviction, overturn the sentence or grant a hearing on new evidence. The resulting decision, or mandate, ends the direct appeals process.

4. If unsuccessful, petition for a writ of certiorari with the U.S. Supreme Court to request a review of federal constitutional issues. If denied, continue to petition applicable state courts.

Post-Conviction Proceedings

1. File a notice of post-conviction relief, also called a writ of coram nobis, with the original trial judge within 30 days after a direct appeal mandate. Unlike the direct appeal, a defendant does not have the right to affirmation of a writ of coram nobis. The trial court may reject the petition with or without a hearing.

2. If granted, prepare evidence for a trial court hearing, also called a collateral proceeding. The issues raised during this stage are constitutional issues. The defendant may raise issues such as ineffective counsel, prosecutorial misconduct or juror misconduct. The defense may also present evidence of any "Brady violations," which occur if the state withheld evidence that might have helped the defense.

3. If denied, appeal to any intermediate court within your jurisdiction.

4. Petition the state Supreme Court for a hearing. If denied, again petition the U.S. Supreme Court for a writ of certiorari. If the Court denies the writ, and the defense has utilized all state remedies, pursue the case in federal court.

Federal Habeas Corpus

1. File a Federal Habeas Corpus petition with the U.S. District Court. As with state courts, the judge will review briefs submitted by the prosecution and defense and then decide whether to dismiss the petition, overturn the conviction, overturn the sentence or grant a hearing.

2. File for permission to appeal to the U.S. Court of Appeals if the U.S. District Court dismisses the petition. Going before the U.S. Court of Appeals must be authorized by the U.S. District Court or the Court of Appeals itself. The defense is limited to only those issues raised in the U.S. District Court. If overturned by a federal review, the case is remanded back to the state, which may then re-try the defendant.

3. If denied relief by the U.S. Court of Appeals, make a final petition for review to the U.S. Supreme Court. This last stop in the appeals process is rarely granted. Writs granted by the Supreme Court for death penalty reviews make up only about one percent of its docket.

Tips & Warnings

• Always utilize your constitutional right to an attorney during litigation.

• Occasionally a crime occurs resulting in both state and federal jurisdiction over the case. Generally, the federal criminal statute and process will trump the state law.

• Though rarely employed, the governor can grant relief to a defendant through the right of executive clemency.

• Appeals statutes vary by state as do timelines for appeals filings. Missing a deadline could put an end to a defendant's appeals.

References

• Amnesty International: Figures on the Death Penalty
• Death Penalty Information Center: Facts About the Death Penalty
• Capital Punishment in Context: Legal Remedies Available to Death Sentenced Individuals
• Capital Punishment in Context: Death Penalty Appeals Process
• Capital Punishment in Context: Federal Death Penalty Appeals Process
• Federal Public Defender: Capital Defense Issues

Resources

• USLegal: Definition-Habeas Corpus
• USLegal: Definition-Writ of Coram Nobis
• FindLaw: Furman v. Georgia, 408 U.S. 238 (1972)
• State of Alabama Attorney General's Office: A Guidebook to Alabama's Death Penalty Appeals Process
• Death Penalty Information Center: Federal Laws Providing for the Death Penalty