Death penalty cases go through a longer appellate process because they involve more steps and trips to the courthouse than the average felony conviction. In theory, all types of cases can avail themselves of every step, but in practice, most non-death cases stop somewhere along the way. Death penalty appeals, on the other hand, leave no stone unturned simply because the stakes are so high. To state the obvious, a mistaken execution cannot be corrected later.
How Many States Still Have the Death Penalty?
Around half of the states, plus the federal government, still have the death penalty on the books. In a few of those states, governors have halted its use. Other states have completely abolished the death penalty.
More than 2,000 people sit on death row across the nation at any given time. For almost two decades (1995 to 2012), the size of death row sat at over 3,000 prisoners. Most prisoners will spend at least a decade or two on death row. (Find current statistics at DeathPenaltyInfo.org.)
Why Does the Death Penalty Process Take So Long?
Most of the wait time in death penalty cases comes from the appeals process (asking higher courts to review and possibly overturn parts of the case). Because the stakes are so high, death penalty cases can spend years going through the appeals process, in which multiple state courts and even federal courts may review different aspects of the case on three different tracks. While non-death penalty cases often only search out a few routes of appeal, a death penalty defendant might pursue each one. (More on death penalty appeals below.)
Death penalty cases also come with complexities that add to the time it usually takes to get from trial to sentencing and appeals. For instance, death penalty trials go through a two-phase process to determine first guilt and then the penalty. This process significantly lengthens the average trial and the record to review on appeal. If a defendant wins on any of the appeals, the case might need to be retried or resentenced.
Then there’s the issue of legal representation. Many defendants can’t afford to hire their own lawyers, so states need to find an experienced lawyer who will work for relatively low pay and adequately represent a death-row client. Just finding a lawyer can take months, if not, years. This lawyer will then need to review the entire record and all the evidence, file motions, prepare briefs and arguments, and go to court. If the case is heard in federal court, the federal judge may need to appoint new counsel.
Finally, a defendant might make a last-ditch appeal to the governor for clemency. Clemency is the governor’s power to grant a pardon (forgiveness), commute (reduce) the sentence, or issue a reprieve of execution (temporary suspension).
How Are Death Penalty Sentences Appealed?
Death penalty cases are often appealed to both state and federal courts on three different "tracks" (if you will)—a direct appeal (state court), a post-conviction review (state court), and a federal habeas corpus proceeding. Within each track, there may be reviews by one, two, or three courts—the lowest level court (trial or district court), the intermediate court (court of appeals), and the highest court (supreme court).
Below are the appeal options generally available in a state death penalty case. Each option can take months or years to wind its way from filing to a decision.
Direct Appeal in State Court
In any felony criminal case in a state court, the convicted defendant has the right to appeal (challenge) the judgment and sentence to the intermediate appellate court, which must hear and decide the case. For direct appeals, the courts are limited to reviewing issues that were heard by the lower court (those that were “in the record”).
If the appeal fails, the defendant can ask the state’s highest court to review the case. Often, this court can decline to hear the case. Typically, the state’s highest court accepts only a few such appeals.
If the case is lost at the highest state court, the defendant can sometimes appeal to the U.S. Supreme Court, depending on the nature of his claims (again, the highest court need not accept the case).
State Post-Conviction Review
While the case is on appeal, or at any time thereafter, the defendant can also file a “writ of habeas corpus,” which requests the judge to overturn or modify the conviction based on information that is not in the record. Most commonly, defendants file writs when they claim that their trial lawyers were incompetent because they failed to find or introduce exonerating evidence, raise legal arguments, file motions, or find and present witnesses. Writs can be filed in the trial court but most often are filed in the appellate court, and sometimes appealed to the highest state court.
Federal Habeas Corpus Proceedings
If a defendant has gone through the entire state-level process for both an appeal and a writ and lost at all levels, the case might pivot to the federal system. Here, the defendant asks the federal court to review whether their sentence is illegal.
Similar to the state court process, if the defendant loses at the trial level, the defendant might send their writ to the appellate court and can ask the U.S. Supreme Court to review it as well. (The mid-level appellate court must review the case if asked; the Supreme Court has a choice.)
How Much Time and Money Goes Into Capital Cases?
All in all, it can take an average death-row defendant over 17 years to get through just the state system. If the defendant files the writ next in federal court, that’s on average another ten-plus years. The total: About a quarter-century of court reviews.
Costs associated with death penalty cases range drastically, but studies have shown that death penalty cases can cost double or triple the amount that a non-death penalty case costs. Most of these costs are borne by taxpayers, including costs of legal representation, trial and appeals, and incarceration.