Criminal Law

Death Sentence Appeals Take Time for a Reason

The idea of swift justice is often lost in death penalty cases. It usually takes several years from the time someone's convicted of a crime to his actual execution. Why? Because we need to make sure everything was done right.

Teresa Lewis

In 2003, Teresa Lewis was convicted in a Virginia court for masterminding the brutal murders of her husband and stepson. A jury found that, with the lure of insurance money and other favors, she allowed two cohorts to enter her home and shoot her husband and stepson as they slept.

About 10 years later, Lewis was executed by lethal injection in late September 2010 after the US Supreme Court denied her request for a stay of execution.

Why So Long?

The appeals process in death penalty cases takes time to complete. Typically, a case may take between 6 to 10 years, but there are always exceptions. For instance, in Ohio, William Garner was put to death in July 2010. He was convicted in 1992 of murdering five children. In Texas prisoners have spent close to 25 years on death row before being executed.

It takes time because there are multiple steps in the appeals process in death penalty cases. And there are multiple steps because it's the ultimate punishment and there's no room for error. Each state has its own process or procedure for death penalty appeals, and there may be some variations, but in general they all have similar steps.

State Courts

Generally, a defendant (she's the person convicted of a crime) sentenced to death has the right to an automatic appeal to the state's highest court (typically called a supreme court also). This means the court is required by law to look at the case. The defendant and the state (or prosecutor) file papers with the court and later argue their cases in open court. This may take a few months from the date of conviction. After hearing the arguments, the court makes a decision, perhaps up to two or more months later.

If the court reverses or throws-out the defendant's conviction or sentence, the case goes back to the trial court, and the whole process may start again. If the court lets the conviction and sentence stand, the defendant may ask the US Supreme Court to look at the case, like Lewis did. The Supreme Court isn't required to look at a case. Once it decides not to hear a case, the defendant's direct appeal is over.

The case isn't completely over, though. A defendant may ask for habeas corpus review of his case. Here a defendant usually claims his imprisonment is unlawful because he was denied a state constitutional right. A common claim is that he was denied the effective assistance of counsel. It's unclear if Lewis asked for habeas corpus review, but her attorney on appeal did argue that her trial court attorney made a serious mistake by not exploring her low-intelligence as a defense to the crime.

Again, the state supreme court makes a decision. If the conviction and sentence stand, the state appeals process is over. If not, the case goes back to trial where it may start all over again.

This whole process alone usually takes several years to complete.

Federal Appeals

Most defendants in death penalty cases try to take their cases to federal court, usually after the state appeals process ends. The first step is habeas corpus review in a federal court, called a district court. It's almost identical to state habeas corpus review -but it's based on the denial of a federal constitutional right. Again, claims of ineffective assistance of counsel are common. If the federal court grants the request, the defendant is usually given several months to prepare.

If the court agrees with defendant and reverses his sentence or conviction, the case goes back to the state trial court, and the whole process may begin again.

If it disagrees with him, he may challenge that decision by filing an appeal with a federal court of appeals. Again, the defendant and prosecutor file papers and present their cases. The case may be sent back to the state court if the appeals court agrees with the defendant. If it disagrees, the defendant's last chance in the courts is to ask the US Supreme Court to review the case.

If it refuses to do so, as in Lewis' case, it's almost certain the defendant will be put to death. The legal appeal process is over. And, typically, several years have gone by.


The last chance for the defendant is to ask the state's governor for clemency. Unlike a pardon, which usually excuses a criminal act, clemency is a request for mercy. Essentially, instead of death, the defendant asks for life imprisonment. Like many defendants before her across the US and over the decades, Lewis' clemency request was denied.

What You Can Do

Lewis' death drew a lot of attention because of her limited intelligence and aptitude. It didn't seem fair to many that she should be put to death while the men who actually did the shooting and murdering got life sentences.

Whether you're for or against the death penalty in general, or for or against its use in a particular case, you can:

  • Contact your state lawmakers and let them know how you feel about the death penalty and its use in your state
  • Contact your state's governor and tell her why or why not a criminal defendant should receive clemency
  • Join, contribute, or volunteer at a program that supports your view of the death penalty

Putting someone to death is the ultimate punishment for a crime. The legal process strives to makes sure it's used fairly and justly. If at times it seems unfair or unjust, it's up to us to do something to prevent its use and prevent similar injustices in the future.

Questions for Your Attorney

  • What's the difference between a trial lawyer and an appeals lawyer?
  • How competent do you have to be to stand trial and not claim "mental defect?"
  • What happens when DNA evidence proves the innocence of a person who's been executed?

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