Death Penalty in Georgia

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Death penalty

Death Penalty cases are very different from traditional cases.  At the outset, the State will typically only seek the Death Penalty if they are confident that they have a strong case for a trial.  This is because a death sentence is the most serious penalty that the government can issue, meaning that virtually no Defendant would accept the Death Penalty as a plea bargain- you might as well just go to trial and roll the dice.

There are many hurdles that the State has to overcome in order to try a case and seek the Death Penalty.  Not every crime is eligible for the Death Penalty, and even within the crimes that are eligible, there has to be something specific about the way that the crime was committed that allows the State to ask for death.  These are called “aggravating circumstances”.  The requirement for a finding of aggravating circumstances beyond a reasonable doubt is consistent throughout the United States, and is meant to ensure that the Death Penalty is a rare and exceptional punishment that is only exercised when it is proportional to the crime that was committed.  Most states share basically the same criteria for these, but as discussed below, this presents a unique problem for Georgia cases.

The Doorway to Death

First, the only crimes whose convictions may warrant the Death Penalty are Murder, Rape, Armed Robbery, Kidnapping, Treason, or Aircraft Hijacking.  Even if a conviction of one of these crimes is secured, however, the prosecutor must show beyond a reasonable doubt one of the 12 aggravating circumstances outlined in O.C.G.A. § 17-10-30.

Most states share the same language for the majority of these aggravating circumstances.  The most common one is “The offense of Murder, Rape, Armed Robbery, or Kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an Aggravated Battery to the victim.

As you can see, these circumstances are meant to only represent the worst of the worst.  And while that may be the result in most states, Georgia has a unique dilemma: our specific definition of Aggravated Battery.

In Georgia, Aggravated Battery is defined under O.C.G.A. § 16-5-24 as “A person commits the offense of Aggravated Battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” 

While on its face this definition would seem to represent the worst of the worst, the Courts have been very liberal about what “seriously disfiguring” means.  It can include any internal damage to the body, or even just a scar.

The Trial

Death Penalty trials are much different than traditional trials.  First, they are “bifurcated”, which means that the trial will be held in two phases with the same jurors: first the guilt/innocence phase, and if there is a finding of guilt, a sentencing phase will follow.   During the sentencing phase, if the jurors find beyond a reasonable doubt that one of the aggravating circumstances is present they only have two options: the Death Penalty, or Life Without Parole.

Because prosecutors will rarely take a case to trial without having a slam dunk case, in most Death Penalty cases the sentencing phase will take significantly longer than the guilt/innocence phase.  While the guilt/innocence phase is about the Defense Attorney arguing to the jury about whether you committed the crime, the sentencing phase is about the Defense Attorney making the case that you are a good person who they should show mercy.  This is done by presenting “mitigating factors”.  Examples of mitigating evidence could include a troubled childhood or contributions to the community.  After hearing all of the evidence from the defense attorney and the prosecutor, the jury will render a verdict of Death or of Life Without Parole.

Any time a Death Penalty verdict is rendered, the appeals court is required to take the case for review.  The Supreme Court has held that this is a constitutional requirement, and the appeal will happen automatically.


If you have been charged with a crime and need the best local criminal defense attorney, give Bixon Law a call today to speak to one of our experienced Georgia criminal defense lawyers. We will vigorously defend your criminal defense rights, and advocate on your behalf to have your criminal case dismissed or your charges reduced. As experienced trial attorneys, we are not afraid to take your case to trial if necessary. We represent clients in Atlanta and throughout the state of Georgia. We are lawyers who are committed to helping people in difficult situations, and we invite you to call us at 404-551-5684 for a free consultation on your case today.