Legal Remedies Available to Death Sentenced Individuals

Legal Remedies Available to Death Sentenced Individuals

Available Remedies
Chances of Obtaining Relief
Barriers to Obtaining Relief
Issues Highlighted by the Gary Graham Case
Related Links


In the early twentieth century, executions typically took place within a year after the trial. Since few constitutional rights of defendants were recognized, few areas of relief were possible. In particular, the criminal-procedure guarantees of the Bill of Rights in the Constitution of the United States – guarantees such as the right to a defense attorney, the right to a public trial by an impartial jury, and the privilege against self-incrimination – were thought to apply only in federal criminal prosecutions, not in state prosecutions. Gradually, however, the Supreme Court of the United States held that many of the protections of the federal Constitution’s Bill of Rights applied to state criminal defendants as indispensable components of the “due process of law” which the Fourteenth Amendment to the Constitution explicitly required the States to grant to any person in the United States. Protecting these constitutional rights required a more thorough review of a defendant’s conviction and death sentence. Today, the average time between sentencing and executions is ten years. Many cases have to go through a second sentencing proceeding or even a complete second trial, because serious errors were found in the original proceedings.

The trial, however, is still in theory the main event of the legal process. Once a person has been found guilty, the presumption of innocence is removed. The defendant now has the burden of showing that a significant error was made in the process that convicted him. The review by appellate courts focuses on legal errors that may have occurred before or during the trial. States have strict time limits on presenting any new evidence that could have been raised at trial. Courts generally give deference to the decisions of the trial court judge as the person closest to the testimony and facts of the case. Even if errors were made, a reviewing court might find them to be harmless, that is, errors that are not likely to have affected the conviction or sentence.

Available Remedies

The chart above outlines the steps that a typical defendant can go through in the process of seeking review of a conviction or sentence. The process is complicated because it involves both state and federal courts, each having multiple levels of review. Moreover, states differ in the rules that must be followed in seeking relief.

Although some states combine some of these steps into one, a case starts at the bottom of the left column and moves up. If denied relief in one’s direct appeal (first column), the defendant can go to the second and then the third column seeking relief. Each avenue of review ends with a possible hearing in the U.S. Supreme Court. However, that Court can only review the decisions of lower courts on issues raised by claims of denial of federal constitutional or statutory rights, and even as to those claims the Court has complete discretion to grant or deny review in any case. The Supreme Court typically exercises its discretion to review only a handful of death-penalty cases a year, out of the hundreds in which its review is sought.

Direct Appeal

On direct appeal, which occurs shortly after trial, the state’s highest criminal court reviews both the defendant’s conviction and his or her death sentence. In most states, the state supreme court reviews every capital case, even if the defendant does not request an appeal. The focus of this round of review is on what happened at trial. For example, decisions by the trial judge regarding jury selection, the admission of evidence and testimony, and instructions to the jury can be challenged.

Once relief is denied by the state’s highest court, and the U.S. Supreme Court has either declined to review that decision or has reviewed and upheld the decision, the defendant’s conviction and sentence are deemed “final.”

Post-Conviction Proceedings

A defendant can still challenge the constitutionality of the judgment through a series of petitions in state and federal courts. These are called post-conviction proceedings since typically they come after the conviction becomes final. They are also called collateral proceedings because they can raise issues outside of the record of the proceedings in the trial court, which are the basis of the direct appeal. Strictly speaking, these are not appeals of earlier decisions but rather civil suits challenging the constitutionality of the conviction or sentence. In state court, they can be based on state or federal constitutional provisions. In federal court, they can only be based on the federal constitution.

Two of the most common claims made at this stage are ineffectiveness of counsel and prosecutorial misconduct. The Sixth Amendment to the U.S. Constitution guarantees a defendant the right to a lawyer. The Supreme Court has held that this right obligates the state to provide the defendant with a lawyer if he cannot afford one, and that the representation provided by counsel must be “effective.” If the lawyer’s actions fall below the accepted standards of the profession and those actions undermined the reviewing court’s confidence in the outcome of the trial, then a new trial is required.

Similarly, the Fourteenth Amendment requires the state to provide the defendant with “due process.” Someone charged with a crime, particularly a capital crime, must have a fair chance to defend himself against the charges. The Supreme Court has held that this requires the state to inform the defendant of the evidence that might tend to show his innocence, or that might lead the jury to spare his life if he is convicted. If the prosecution withholds such evidence, this “prosecutorial misconduct” may require that the defendant be given a new trial.

Habeas Corpus

Post-conviction proceedings are sometimes referred to as habeas corpus proceedings, particularly in federal court. Habeas corpus is Latin for “you have the body,” and the petitioner is asking the warden of the prison where the petitioner is held to justify continuing to imprison the “body” of the petitioner. The right to habeas corpus relief extends as far back into English law as the Magna Carta. The U.S. Constitution guarantees access to habeas corpus except in times of extreme emergency. The protection was originally applied only to federal prisoners, but a law passed after the Civil War extended federal habeas corpus to those in state custody. States also have their own form of habeas corpus review, governed by state law, and that law is the basis for the second column of relief in the diagram above.

The statute governing federal habeas corpus was significantly modified in 1996 by the “Anti-Terrorism and Effective Death Penalty Act.” This law puts restrictions on when federal habeas corpus petitions can be filed and what they may contain. A petition seeking federal habeas corpus relief is filed in the federal District Court near where the original trial was held. The District Court is the trial-level court in the federal system. To decide whether the defendant’s constitutional rights were violated, the District Court judge may allow a hearing with witnesses. Either the defendant or the State may appeal an unfavorable ruling by the District Court to the U.S. Court of Appeals, and then seek review in the U.S. Supreme Court.


A defendant who is denied relief throughout the entire process of judicial review can still be spared through clemency, which is an act of the executive branch. Every death penalty state has some process by which the governor or an executive committee can review a defendant’s conviction and sentence. A death sentence can be reduced to a life sentence, and, in rare circumstances, a person can be completely pardoned and freed by an executive decision. In the federal system, the president possesses such power.

Grants of clemency are rare in death cases, though a few governors have reduced the sentences of everyone on death row to life. (Governor George Ryan took such action in Illinois in 2003, sparing the lives of 167 defendants.) Clemency is considered an act of mercy, and hence does not have the usual protections of due process found in the judicial system. A defendant may not always have a lawyer or be given a hearing and has little recourse if his clemency request is denied.

Chances of Obtaining Relief

Approximately 7,000 death sentences have been imposed since 1977. Over 1,000 people have been executed. Another 3,300 people remain on death row. Some inmates have died of natural causes. Many of those originally sentenced to death eventually received a lesser sentence. About 120 death row inmates have been exonerated, that is, their convictions have been overturned and subsequently all charges were dropped or they were acquitted at a retrial.

Whether a particular death-sentenced inmate will obtain relief certainly depends on whether a legal error was made in the process of trying and sentencing the defendant. But it may also depend on other circumstances, some quite fortuitous, such as the quality of the lawyer representing the defendant at one or another stage of the process and the timing of Supreme Court decisions that affect broad categories of death penalty cases. For example, since 1972, 22 inmates were executed for crimes committed when they were under 18 years of age, but since 2005 such executions of minors have been banned as unconstitutional.

A study of the chances for death row inmates to obtain legal relief was published in 2000. Professor James Liebman and his colleagues at Columbia University reviewed all of the death penalty cases from 1973 to 1995 in which those the defendant had been grated relief or was executed. Defendants were considered to have obtained relief if they had either their sentence or conviction finally reversed or if they were denied relief through the end of the judicial review process outlined above.

Of the cases that were finally resolved, 68% resulted in some relief from the courts. This does not mean that the inmates were set free or even that they were given a life sentence. Rather, serious error (i.e., error that was not considered “harmless” by the courts) was found in either the guilt or sentencing trial. This error required that there be a retrial if the prosecution wished to have a new conviction or death sentence imposed.

Among the most frequent errors found by the courts were ineffectiveness of counsel and prosecutorial misconduct. Presumably, when the case was retried, the defendant would have effective counsel, or evidence withheld by the prosecution would now be available to the defense. Prof. Liebman and his colleagues followed a subset of these cases through their second trial; the overwhelming majority (82%) of defendants were not re-sentenced to death.

The publication of this study resulted in both widespread concern about the reliability of the death penalty system and sharp criticism of some claims of the study. Critics rightly pointed out that the 68% of defendants who obtained relief were by no means innocent; many were re-sentenced to death in their second trials. Critics also claimed that relief was more common in the earlier years of the study, while the death penalty was still being reformed after the 1972 Supreme Court case Furman v. Georgia. More recent measures of the chances for relief, especially in the final stage of federal habeas corpus, indicate a smaller percentage of cases obtaining relief.

Barriers to Obtaining Relief

Despite the variety of avenues in which to pursue relief, and the seemingly high chance of mistakes being discovered in cases that have been through the entire system, the presence of serious error in a case does not guarantee a new trial or sentencing. If an issue is not raised, particularly in the latter two stages of the review process, courts are unlikely to grant relief. In the more common scenario, attorneys for the death row inmate may either file a claim too late or neglect to include a claim in an otherwise timely appeal. For the purposes of the courts, the failure to follow the rules of procedure is equivalent to not filing at all.

One of the cardinal rules of post-conviction proceedings is that any challenge to the proceedings must be raised at the first available opportunity. If it is not raised, the claim is deemed to be waived. So, if the trial judge admits improper testimony but the defense attorney fails to object, the opportunity to challenge that testimony on appeal is probably lost. Similarly, if a federal constitutional challenge could have been made in one’s direct appeal, but instead the attorney waited until the time for federal review to raise the claim, it will probably be barred from consideration.

There is an obvious tension between the state’s concern for finality and the defendant’s interests in escaping a wrongful execution. Because the defendant’s stake in the outcome is very high, the procedural rules barring review do have exceptions. They usually require that if a belated claim is to be allowed, it must have the potential of exonerating the defendant. Mere correction of a mistake made at trial, even a serious constitutional mistake, will not suffice.

There is also a tension between the state’s control over its criminal justice system and the federal courts’ oversight of constitutional rights. Courts and legislatures have arrived at an accommodation that requires that state courts be given the first opportunity to remedy any constitutional errors, and that federal courts give deference to the decisions of state courts unless they are clearly erroneous.

Issues Highlighted by the Gary Graham Case

The issue of Representation is discussed elsewhere in this unit. The actions of Graham’s trial attorney not only affected the trial itself and what evidence was presented to the jury; they also limited the legal claims that Graham was permitted to raise in later proceedings. If a lawyer does not raise a timely objection to an unfair practice at trial, the defendant may be barred from subsequently raising the issue on appeal, even though he has a new lawyer.

Graham also encountered problems in challenging Texas’ death penalty statute in federal courts. He maintained that, under Texas law, the jury was not able to give adequate consideration to his youth, his family background, and positive character traits. This claim was rejected by the courts but Texas’ law was later changed to allow more consideration of such “mitigating factors,” but the change came too late for Graham. Similarly, the Supreme Court in 2005 found the execution of juveniles such as Graham to be unconstitutional, but this ruling came after his execution.

Graham’s last opportunity to be spared from execution was the clemency process. But even there, his chances were slim. Graham’s petition for clemency came before Gov. George Bush during a critical time in the 2000 presidential race. Bush had taken a hard line defending Texas’ death penalty practices and was unlikely to show mercy to Gary Graham.

Questions for Further Analysis:

  • Would narrowing the number and kinds of crimes eligible for the death penalty produce a more efficient system so that fewer cases could be processed more thoroughly?
  • What changes have occurred recently in the death penalty appeals process? What other changes have been proposed in Congress? Will such changes enhance or detract from the remedies available to counteract injustices? Are there sufficient exceptions for cases of innocence? Will such changes produce a more efficient system of justice?
  • How might the environment in which elected judges render decisions impact the way they evaluate high profile death penalty cases?

Related Links

Representation in Capital Cases
Prosecutorial Discretion
Jury Instructions: Jurors‘ Understandings and Misunderstanding
Mitigation in Capital Cases
Post-Conviction in Capital Cases
The Case of Gary Graham