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Death Row Appeals: Rights and Limitations

By Christopher Coble, Esq. on May 19, 2015 | Last updated on March 21, 2019

At the beginning of this year, 3,019 people are sitting in death row facing the death penalty. Last year 73 people were sentenced to death, and 35 were executed.

This month, Boston Bomber Dzokhar Tsarnaev was sentenced to death. However, he, and many other death row inmates, will spend years in prison awaiting several rounds of appeals before they are actually executed.

Direct Appeal

While the appeal process may vary among state and federal courts, they do not differ wildly.

Death penalty sentences, generally, are automatically appealed to the state's highest court. In some states, such as Oregon, the appeal is optional. This is called the direct appeal.

Direct appeals are limited to trial issues and based entirely on the court record of the trial. While the prosecution and defense can sometimes make oral arguments to the court, no new evidence or witnesses will be presented. The court will review the case to see if evidence supports the death sentence.

The court will then decide to either uphold the conviction, send the case back to the trial court on some specific issue, or reverse the trial court's decision and send it back for a new trial.

If a defendant loses on appeal to the state Supreme Court, he can then petition for appeal to the United States' Supreme Court.

State Habeas Corpus

Once a defendant loses on direct appeal, he can then try to file a state habeas corpus claim. A state writ of habeas corpus challenges violations of a defendant's state constitutional rights, such as ineffective assistance of counsel, illegal detention, deprivation of liberty, or actual innocence.

Federal Habeas Corpus

If a state habeas corpus petition is denied, the defendant may file a federal habeas corpus petition. This is similar to a state habeas corpus claim, but instead challenges violations of a defendant's federal constitutional rights. While some states do not have time limitations on when to file a state habeas corpus petition, federal law imposes a one year statute of limitations.

Federal habeas corpus claims are usually made first at a federal district court, appealed to a federal Court of Appeals, and finally appealed to the Supreme Court. Once the Supreme Court has denied a habeas corpus petition, the defendant has exhausted all avenues of appeal.

If you or a loved one has been sentenced to the death penalty, consult with an experienced criminal defense attorney to consider your options for appeal.

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