The Death Penalty Appeals Process

Capital cases—those subject to the death penalty—can take decades to make it through the legal system. A good chunk of that time is due to the appeals process. The stakes are obviously high, and defendants on death row typically avail themselves of all appeal options.

How Common Is the Death Penalty Today?

While death row sentences and executions are nowhere near the record numbers hit in the 1990s, the numbers have been steadily creeping up since 2021. Here are some figures.

• In 2024, 27 states have the death penalty on the books. Governors in five of those states, however, have halted its use. Twenty-three states have abolished the death penalty. In these states, the harshest penalty for a murder case is life without parole.
• Twenty-five prisoners were executed in 2024. That number was 98 in the year 1999.
• Only 26 death sentences were handed down in 2024, compared to 151 in 2003.
• Since 1976, 1,607 prisoners have been executed. Texas accounts for more than 1/3rd of those.

Find the latest statistics at the Death Penalty Information Center.

Understanding Why Death Penalty Cases Take So Long

The appeals process generally accounts for most of the wait time in death penalty cases. Defendants can avail themselves of three types of reviews in the state and federal systems, each of which might involve multiple court levels—the lowest court, an intermediate court, and the highest court. Each step along the way can take months or years, and it's possible for a case to go up the review ladder only to be sent back down and make its way back up again.

The front end of the case—the trial—also takes much longer than the average felony case, creating an extremely lengthy record for appellate courts to review. And let's not forget—death row defendants need lawyers to file and argue these cases. Many defendants don't have the resources to pay for a lawyer and rely on court-appointed or pro bono lawyers. Finding qualified lawyers to take on such complex and time-consuming cases is just one more step that adds to this process.

Process for Death Penalty Trials (Capital Cases)

Procedurally, death penalty trials take extra time because there are two phases—the guilt phase and the penalty phase. Both may go to a jury.

Guilt Phase

The death penalty is only an option in cases where a victim's death occurred, usually first-degree murder cases. These cases often involve brutal facts that get sensationalized in the news, which can make seating a jury an especially long process. The trial itself may be lengthy due to the prosecution's burden in proving aggravating factors that make the defendant eligible for the death penalty.

Penalty Phase

During the penalty phase, the jury can consider all sorts of information that may not have been considered during the guilt phase. This includes information not only about the crime but also about the defendant. For example, oftentimes the defense attorney will present information about the defendant's upbringing, family, mental condition, and home life.

This penalty phase of the capital trial is unique among criminal cases. In non-capital cases, information about the defendant's background is typically presented to the judge in the probation department's pre-sentence report, prepared to aid the judge in deciding on a sentence.

Process for Death Penalty Appeals

Next comes the lengthy appeals process. While these appeal options are generally available to other defendants, non-death cases tend to be less complex and stop somewhere along the appeals path. Death penalty appeals leave no stone unturned.

Direct Appeal in State Court

Most defendants appeal the trial court judgment (guilty) and sentence (death). For this direct appeal process, the appellate court can review only issues heard by the trial court.

In some states, death penalty cases go to an intermediate appellate court. If that court of appeal affirms the conviction, the defendant can ask the state's highest court (often a supreme court) to review the case. The state supreme court can take or decline the case. Other states skip the intermediate appeals court and send the case directly from the trial court to the state's highest court. If the justices on the state's highest court deny the appeal, the defendant may ask the U.S. Supreme Court to hear the case, but the Court is not required to take it.

Post-Conviction Review in State Court

Defendants generally pursue another type of review in state court called post-conviction review. This review process differs from the direct appeal described above in that the judge can review information that's not in the trial record. For instance, a defendant might claim ineffective assistance of counsel or introduce newly discovered evidence. This post-conviction review can start in the trial court and make its way up the appellate ladder.

Habeas Corpus in Federal Court

A defendant might also seek review in federal court by filing a writ of habeas corpus. Here, the defendant can only ask the court to review whether their sentence is illegal. Similar to the state process, the defendant can appeal the lower court ruling. (28 U.S.C. § 2254 (2024).)

Seeking Clemency

The last step in the capital appeals process is clemency, a request to the state governor (or, sometimes a special board) for relief from the death sentence. The governor may postpone the execution or commute the defendant's sentence to life in prison.

Getting More Help

More information on the death penalty, legal representation for death row inmates, and exonerations can be found at:

• Death Penalty Information Center
• Innocence Project
• ABA Death Penalty Representation Project