Why Do Death Penalty Cases Take So Long?

    I recently entered a post about getting a life sentence for a client in January 2008, who had committed a murder in 1990, and was originally sentenced to death in 1993.   A question I often hear is why do death penalty cases take so long to resolve?  I thought I would explain the process.
    Prior to the 1970s it was possible to have "automatic" death penalty provisions.  In other words, a state could pass a law providing that if a defendant was found guilty of raping and then murdering a child, the sentence had to be death.  The Supreme Court, however, held that in order for the death penalty not to violate the "due process" clause of the Constitution death penalty statues had to be specifically tailored so that the penalty only applied to the most heinous of offenses.  The concern was that prosecutors wielded arbitrary power in deciding who received the death penalty.   The perception existed that in the South, for example, prosecutors tended to seek the death penalty when a black man was accused of raping a white woman, yet if a white man was accused of murdering a black woman the penalty was not sought.  Around this time the Supreme Court held that the "due process" clause limited the implementation of the death penalty to cases that involved murder.  (This kind of use of the "due process" is an example of "judicial activism" that conservatives lament.)  Over time the Supreme Court essentially has made it imperative that before any jury may impose the death penalty it must have considered all there is to know about the defendant.
    This requirement means before a death penalty case goes to trial the defendant's lawyers must thoroughly investigate every aspect of the defendant's life.  Given the enormity of the task and the stakes involved, it has become common practice for the trial court to appoint a "defense team."  Usually two lawyers, who, in turn, retain the services of a "mitigation specialist." Although it has taken decades for the lower courts to fully accept this obligation and provide the necessary funding to the defense team, it is now common after the state announces its intention to seek the death penalty, for the defense team to attempt to interview every individual who has had significant contact with the defendant during the course of his or her life.  All school, work and medical records are gathered, and more often than not at least one mental health expert examines the defendant.   This process usually takes over a year.
    Once the trial starts a jury must be selected.  The state is entitled to jurors who are willing to follow the law and impose the death penalty in the right cases.  The defense is entitled jurors who are willing to follow the law and will not automatically impose the death penalty in every murder case.  The subtleties of how a given state's death penalty statutes must be applied is invariably complicated.  Prospective jurors must not only be educated about these intricate laws, their views about the death penalty must be carefully examined.   This means, unlike the selection of jurors in the usual case, the jurors must be individually questioned.  This questioning typically takes about an hour and a half for each prospective juror.    The process of seating a death penalty jury usually takes several weeks.
    In most death penalty cases there is little doubt about the guilt of the accused.  If there were it is unlikely the state would seek the death penalty in the first place.  Thus the guilt and innocence phase of the trial is usually over in a day or two.   The punishment phase, however, often takes a week or more given the comprehensive picture of the defendant being presented.  The state generally puts on evidence of every "bad act" the defendant has committed, and the defense is usually focused on the low intelligence of the defendant and the abuse he has experienced.  (In a separate post I will discuss what is often derisively referred to as  "the abuse excuse" is so commonly asserted in death penalty cases.)
    Virtually every death penalty case will result in an appeal.  Most often these are different lawyers than those who tried the case.  The appellate lawyers will have to read a transcription of the entire trial proceedings and then summarize it so they can properly refer to it in their appellate briefs or written arguments presented to the court of appeals.  The drafting and submission of the briefs usually takes any where from six months to a year.  The already overworked appellate courts must review the briefs and trial transcripts themselves.  It often takes them a year or so to render an opinion.   If the defendant loses his appeal he will likely ask for the Supreme Court to review his case a process that will take six months or so if the Supreme Court declines to hear the case, and much longer if it should decide to hear the case.
    Assuming the Supreme Court does not take the case, another round of appeals will begin in which new defense lawyers will start the investigation all over again and usually make some argument that the first team of defense lawyers rendered "ineffective assistance of counsel."  It used to be common for the "writ" lawyers to find that the initial underfunded defense team failed to conduct much of an investigation and that had it properly investigated the case the jury might have given a sentence of life imprisonment instead of the death penalty.   Although the exact procedure varies from state to state, these "writs" always initially have to pursued in the state of conviction.   Assuming the state court denies the writ, the writ is usually submitted in Federal court.   The Federal courts then review all of this material, and if the writ is denied, the defendant may appeal to the Federal court of appeals.   If the defendant loses this appeal he may again seek review in the Supreme Court.   Finally, after all the writs and appeals are finished there is usually a clemency process in which the defendant attempts to persuade a governor and or parole board not to carry out the execution.
    If a defendant finds no success along this lengthy procedural path, it can nevertheless take five to ten years from crime to execution date.  If the defendant does meet with some success so that a retrial, or further hearings are conducted the process can drag out for many more years.  In Texas there are inmates who have been on death row for decades.