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Appeal Process for Death Penalty in Federal Cases

2 min

The appeal process for the death penalty, often called capital punishment, varies from state to state. It differs from other criminal appeal processes and it is very rarely allowed in convictions for murder, and even then, only for first-degree murder.

The Direct Appeal: 

The standard appellate relief for any person who has been sentenced to capital punishment is the direct appeal. An individual can appeal a death sentence by filing a direct appeal in the highest court of the state. In several states, such an appeal is compulsory, whereas in many other states, it is purely voluntary for the defendant. In both state and federal cases, a direct appeal is restricted to matters from trial. However, only the federal courts, to a more certain extent than state courts, handle the federal cases. A petition for a writ of certiorari can be filed by the unsatisfied party in the U.S. Supreme Court, requesting a redetermination of federal constitutional matters.


Federal Habeas Corpus:

The concluding phase of the appeals process is the filing of a federal habeas corpus petition and is confined to federal matters presented in the state courts on appeal.  For individuals given a federal death sentence, this phase of the appeals process permits them to present matters outside the trial record. The federal appeals procedure is comprised of three levels. The primary step in federal post-conviction review is the filing of a petition with the appropriate U.S. District Court.  The judge declares the final verdict after reviewing the briefs filed by the defense and prosecution. The judge can also allow a hearing if new evidence has emerged.  The judge may dismiss the request for petition or overturn the sentence for conviction. Authorization to appeal in the United States Court of Appeals is never a voluntary right, as either the Court of Appeals or the U.S. District Court must approve it.  Moreover, the appeal is restricted to only the matters presented in the U.S. District Court. If the sentence is reversed under federal review, the state typically must be provided with the chance for retrying the defendant. If the U.S. Court of Appeals refuses to provide the requested relief, then the only choice is to file petition for a writ of certiorari in the U.S. Supreme Court. For the defendants who are appealing their capital punishment, the U.S. Supreme Court is usually the last chance and final way out. However, the Supreme Court reviews only a very small portion of the capital punishment cases every year. The defendant has run out of almost all of his options when the U.S. Supreme Court rejects the writ of certiorari. If this occurs, executive clemency is the only relief possible.


Executive Clemency:

The final step in the death penalty appeal process is requesting relief from the state governor or an authorized special board. The authority possessed by the governor or the board to award relief to an individual who is facing capital punishment is called executive clemency.  The governor can delay an execution to allow time for additional review of the sentencing by the court or may reduce the individual’s capital punishment to a less severe punishment, such as a life sentence.



Death penalty executions in the U.S. federal government are very uncommon compared to executions at the state level.  Federal courts apply the death penalty only for specific offenses such as treason, espionage, drug trafficking, killing a juror, officer of the court, or a witness.  Generally, federal courts take a lenient view when they approach death penalty cases. In federal cases, the death penalty is considered a cruel and unusual punishment. Therefore, federal courts are geared towards reducing the number of death penalties.

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