Capital Punishment Procedure in Georgia

A Georgia death sentence requires a conviction, then a sentencing verdict in which the jury finds at least one statutory aggravating circumstance beyond a reasonable doubt and unanimously recommends death, and then a mandatory review by the Supreme Court of Georgia. If the jury cannot agree on a sentence, the judge imposes life or life without parole. A defendant with intellectual disability cannot be sentenced to death.

Step 1: notice and the guilt phase

The decision to seek death is made before trial. In Moody v. State, 316 Ga. 490 (2023), for example, the indictment was returned on April 20, 2007, and “the State filed written notice of its intent to seek the death penalty on May 1, 2007.” Guilt is decided first. A conviction for murder authorizes the death penalty as one of three sentences under O.C.G.A. § 16-5-1(e)(1), alongside life without parole and life (the Georgia homicide hierarchy shows where murder sits among the other offenses).

Step 2: the statutory aggravating circumstances

Outside aircraft hijacking and treason, for which § 17-10-30(a) says death “may be imposed … in any case,” a death sentence requires a finding of at least one of the statutory aggravating circumstances in § 17-10-30(b). The list has twelve paragraphs. Several are written for murder, rape, armed robbery, or kidnapping, not murder alone; in the summary below, the offense named in each paragraph is kept:

murder, rape, armed robbery, or kidnapping by a person with a prior conviction for a capital felony;
murder, rape, armed robbery, or kidnapping committed while engaged in another capital felony or aggravated battery, or murder committed during burglary in any degree or first-degree arson;
murder, armed robbery, or kidnapping that knowingly created a great risk of death to more than one person in a public place by a weapon or device normally hazardous to more than one person;
murder committed for the purpose of receiving money or anything of monetary value;
murder of a judicial officer, district attorney, or solicitor-general, or a former one, during or because of official duties;
causing or directing another to commit murder, or committing murder as the agent or employee of another;
murder, rape, armed robbery, or kidnapping that was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;
murder of a peace officer, corrections employee, or firefighter engaged in official duties;
murder by a person in, or escaped from, lawful custody or confinement;
murder committed to avoid, interfere with, or prevent a lawful arrest or custody;
murder, rape, or kidnapping by a person previously convicted of rape, aggravated sodomy, aggravated child molestation, or aggravated sexual battery;
murder committed during an act of domestic terrorism.

The judge instructs the jury in writing on the circumstances the evidence supports. If the jury recommends death, it must designate in writing, signed by the foreperson, which circumstance or circumstances it found beyond a reasonable doubt. In Moody, the jury found paragraphs (2), (4), and (7) for each of two murders.

Although the text names rape, armed robbery, and kidnapping in several paragraphs, the U.S. Supreme Court held in Kennedy v. Louisiana (2008) that the Eighth Amendment bars death for the rape of a child that did not result, and was not intended to result, in death; the kidnapping statute’s death provision is discussed in kidnapping and false imprisonment in Georgia.

Step 3: the recommendation must be unanimous

A finding of an aggravating circumstance makes death available; it does not require it. The jury must also recommend death, and its sentencing verdict must be unanimous. Moody quotes O.C.G.A. § 17-10-31(c): if the jury “is unable to reach a unanimous verdict as to sentence, the judge shall dismiss the jury and shall impose a sentence of either life imprisonment or imprisonment for life without parole”. The court in Moody also found no error in a trial judge’s refusal, both in the initial charge and when asked again during deliberations, to tell jurors what would happen if they could not agree.

Step 4: intellectual disability

A defendant with intellectual disability cannot be sentenced to death. Since House Bill 123 took effect on May 13, 2025, Georgia has a pretrial procedure for raising that claim and a preponderance-of-the-evidence standard. That procedure is covered in intellectual disability and the death penalty in Georgia.

Step 5: mandatory review by the Supreme Court of Georgia

Every death sentence is reviewed on the record by the Supreme Court of Georgia under O.C.G.A. § 17-10-35, in addition to any direct appeal, and the two are consolidated. The court must decide three questions about the sentence:

whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor;
whether, except in treason or aircraft hijacking cases, the evidence supports the finding of a statutory aggravating circumstance; and
whether it is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

The court must cite the similar cases it considered. It may affirm the death sentence or set it aside and remand for resentencing by the trial judge. In Moody the court affirmed and attached an appendix of comparison cases.

Sources

O.C.G.A. § 16-5-1(e)(1) (sentences for murder; 2024 Georgia Code).
O.C.G.A. § 17-10-30 (aircraft hijacking and treason; statutory aggravating circumstances; written designation). Text from the 2021 Georgia Code; the 2022 through 2026 Legislative Counsel summaries list no later amendment.
O.C.G.A. § 17-10-31(c), as quoted in Moody v. State.
O.C.G.A. § 17-10-35 (Supreme Court review of death sentences; 2024 Georgia Code).
Moody v. State, 316 Ga. 490 (2023).
Kennedy v. Louisiana, No. 07-343 (U.S. June 25, 2008).

General information about Georgia criminal law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.