The Death Penalty

Authored By: Carl Vinson Institute



This document tells you the following:

  • What are the basic arguments for and against the death penalty?
  • What is the process for a death penalty case?
  • What are "aggravating circumstances"?
  • What are "mitigating circumstances"?
  • What are appeals and habeas corpus petitions?


Pro and Con

People have been arguing about the use of the death penalty for centuries. The debate involves some basic questions:

1. Does the state have the moral right to take a person's life? Those in favor of the death penalty say yes. If a person kills another, it is right for the state to take the killer's life. Those opposed to the death penalty say that two wrongful acts ( the act of the killer and the state's act of taking the killer's life) do not make one right act.

2. Does imposing the death penalty reduce the number of serious crimes committed? Those favoring the death penalty say yes. They reason that the threat of death makes many potential killers consider their actions. Those opposing it point to studies that seem to indicate that the death penalty has not been shown to prevent people from committing such crimes.

3.Does the death penalty violate the rights of due process and equal protection contained in the Fifth and Fourteenth Amendments to the Constitution? Those favoring it argue that it does not. In 1976, the U.S. Supreme Court ruled that the death penalty was not a cruel and unusual punishment in violation of the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153 (1976). Furthermore, the court allows many appeals. It has required that methods for deciding when to impose capital punishment should be fair. Those who oppose the death penalty say that it does violate constitutional rights. In practice, poor people who cannot afford the best lawyers are often those who are executed.

In addition to these arguments against the death penalty, some people claim that death penalty sentences are racially biased. This argument was made in the Georgia case of McClesky v. Kemp, 481 U.S. 279 (1987).The defendant based his claim that death penalty sentences are racially biased on a university study that showed that defendants were four times more likely to receive a death sentence for killing a white person than for killing an African American. The U.S. Supreme Court disagreed. The court acknowledged that the criminal justice system is not entirely free of racial bias. However, it said that the presence of some bias was not enough to invalidate Georgia's death penalty statute.

There are other arguments. Those in favor of the death penalty argue that most Americans support it. They say that putting someone to death is less costly than a long prison term. Those opposing the death penalty say that because of the costly appeals process, it can actually cost as much or more to execute someone than to keep that person in prison for life. Also, death penalty opponents point out the fact that the death penalty is irreversible. Every year people are released from prisons upon discovery of new evidence that may have changed the verdict of their trials from guilty to not guilty.

The Capital Case Process

Because of the finality of the sentence, cases involving capital offenses are handled somewhat differently than other felony cases. Although certain crimes like armed robbery and rape are still called capital crimes, they are no longer truly capital crimes because the death penalty cannot be imposed. A death sentence may be imposed only for murder, which makes it the only type of capital case. In Georgia, the jury usually decides whether the defendant is guilty, and the judge determines what the sentence will be. However, a jury that reaches a verdict of guilty in a murder case must also decide whether the defendant should be sentenced to death, to life imprisonment, or to life without parole.

Before imposing the death penalty, the jury must determine if there are aggravating circumstances. These circumstances must be -supported by evidence heard in the trial or during the presentence hearing. Georgia law lists 10 major aggravating circumstances, including whether the defendant has been previously convicted of a capital felony or whether he or she committed the murder for hire).

The jury also hears evidence of mitigating circumstances, such as a person's age. For example, although the U.S. Supreme Court has said that states may execute minors, Georgia law prohibits the state from seeking the death penalty for anyone under 17.

The jury must reach a unanimous decision on the death penalty. If all jury members do not agree, the judge must make the sentence life imprisonment.

Because execution is final, the death row inmate is provided with many opportunities to appeal the decision (that is, to try to get the sentence changed). This appeals process has become long and complex. To simplify it somewhat, some states (including Georgia) have adopted a unified appeal system. In this system, all of the issues on which a defendant can appeal must be incorporated into one document. This document can be submitted to the state and federal appellate courts only once.

In addition to appeals, death row inmates can file up to three habeas corpus petitions in both state and federal courts. These petitions must be based on constitutional issues. Usually, they allege that there has been a denial of fundamental rights during the trial or sentencing phases of the criminal justice process. Typically it may take 9 to 10 years for these appeals and petitions to go through the courts.

Some people think the number of habeas corpus petitions should be limited. Others believe these protections are important to avoid taking a life unjustifiably. What do you think?

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: May 02, 2005