O.C.G.A.
O.C.G.A.

O.C.G.A. § 17-10-38 (2019)

Death sentences generally

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) All persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection. Lethal injection is the continuous intravenous injection of a substance or substances sufficient to cause death into the body of the person sentenced to death until such person is dead.

(b) In all cases in which the defendant is sentenced to death, it shall be the duty of the trial judge in passing sentence to direct that the defendant be delivered to the Department of Corrections for execution of the death sentence at a state correctional institution designated by the department.

(c) Notwithstanding any other provision of law, prescription, preparation, compounding, dispensing, or administration of a lethal injection authorized by a sentence of death by a court of competent jurisdiction shall not constitute the practice of medicine or any other profession relating to health care which is subject by law to regulation, licensure, or certification.

(d) No state agency, department, or official may, through regulation or otherwise, require or compel a physician to participate in the execution of a death sentence. ‘‘To participate in the execution of a death sentence’’ means any of the following actions: selecting injection sites; starting an intravenous line or lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; or consulting with or supervising lethal injection personnel.

History

Ga. L. 1924, p. 195, § 1; Code 1933, § 27-2512; Ga. L. 1937-38, Ex. Sess., p. 330, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 2000, p. 947, § 3.

Annotations

Editor’s notes. - Ga. L. 2000, p. 947, § 1, not codified by the General Assembly, provides that: ‘‘It is the intention of the General Assembly to provide for execution by lethal injection for persons sentenced to death after conviction of capital crimes committed on or after May 1, 2000. It is the further intention of the General Assembly that persons sentenced to death for crimes committed prior to the effective

date of this Act be executed by lethal injection if the Supreme Court of the United States declares that electrocution violates the Constitution of the United States or if the Supreme Court of Georgia declares that electrocution violates the Constitution of the United States or the Constitution of Georgia.’’ Ga. L. 2000, p. 947, § 6, not codified by the General Assembly, provides that: ‘‘Section 3 of this Act shall apply to persons sentenced to death for crimes committed on or after May 1, 2000. Code Section 17-10-38 as it existed prior to its amend-

ment by Section 3 of this Act shall continue to apply with respect to crimes committed prior to May 1, 2000, except that Section 3 of this Act shall apply to all persons sentenced to death for crimes committed prior to May 1, 2000, if the Supreme Court of the United States declares that electrocution violates the Con-

stitution of the United States or if the Supreme Court of Georgia declares that electrocution violates the Constitution of the United States or the Constitution of Georgia.’’

Law reviews. - For article, ‘‘The Constitutional Right not to Kill,’’ see 62 Emory L.J. 121 (2012).

JUDICIAL DECISIONS For challenge of Ga. L. 1937-38, Ex. Sess., p. 330, § 1 on ex post facto grounds, see Benton v. State, 187 Ga. 149, 199 S.E. 749 (1939). Allegation that section violates separation of powers provision. - Allegation that this section was unconstitutional, null, and void because the statute supposedly violated Ga. Const. 1877, Art. I, Sec. I, Para. XXIII (see Ga. Const. 1983, Art. I, Sec. II, Para. III), presented no question for judicial determination since the statute failed to point out wherein the Act was repugnant to and in conflict with that constitutional provision. Williams v. State, 187 Ga. 415, 1 S.E.2d 27 (1939). Ga. L. 1937-38, Ex. Sess., p. 330, § 1 not unconstitutional. - This section was not unconstitutional as violative of Ga. Const. 1877, Art. III, Sec. I, Para. I (see Ga. Const. 1983, Art. III, Sec. V, Para. IV) to the effect that no law shall be amended or repealed by mere reference to its title or section number. Williams v. State, 187 Ga. 415, 1 S.E.2d 27 (1939). Variance between title and subject matter of legislation. - Ga. L. 1924, p. 195 did not contain matter not expressed in its caption, in violation of Ga. Const. 1877, Art. III, Sec. VII, Para. VIII (see Ga. Const. 1983, Art. III, Sec. V, Para. III). Howell v. State, 164 Ga. 204, 138 S.E. 206, appeal dismissed, 275 U.S. 576, 48 S. Ct. 114, 72 L. Ed. 435 (1927). Manner in which capital sentences executed is for legislative enactment. - There being no provision in the Constitution conferring upon sheriffs of counties the power to execute sentences of the courts in capital cases, the manner of

execution of such sentences is for legislative enactment. Dunaway v. Gore, 154 Ga. 219, 138 S.E. 213 (1927). Constitutionality of electrocution. - As electrocution inflicts purposeless violence and needless mutilation, in violation of the proscription of cruel and unusual punishments of Ga. Const. 1983, Art. I, Sec. I, Para. XV., future executions of death sentences are to be carried out by lethal injection only. Dawson v. State, 274 Ga. 327, 554 S.E.2d 137 (2001). Relationship to O.C.G.A. § 9-3-33. - In a 42 U.S.C. § 1983 case in which a death row inmate challenged Georgia’s three-drug lethal injection method, the complaint was untimely; the complaint was governed by the two-year statute of limitations found in O.C.G.A. § 9-3-33, and the inmate’s claim accrued in 2001 when the General Assembly adopted lethal injection as Georgia’s method of execution of death sentences as found in O.C.G.A. § 17-10-38. Alderman v. Donald, No. 08-12550, 2008 U.S. App. LEXIS 19072 (11th Cir. Sept. 3, 2008) (Unpublished). Changes made in 2013 to O.C.G.A. § 42-5-36 were not substantial changes to Georgia’s execution protocol and the defendant’s method-of-execution claim accrued in October 2001 and must have been filed by October 2003 to be timely; the defendant’s federal complaint challenging lethal injection, filed on May 12, 2017, was over ten years too late. Ledford v. Comm’r, Ga. Dep’t of Corr., 856 F.3d 1312 (11th Cir. 2017). Cited in Esposito v. State, 273 Ga. 183, 538 S.E.2d 55 (2000); Hill v. Owens, 292 Ga. 380, 738 S.E.2d 56 (2013).

OPINIONS OF THE ATTORNEY GENERAL Designation by Commissioner of place of execution. - Commissioner of offender rehabilitation (now commissioner of corrections) is authorized to designate any state correctional institution as the place for carrying out an execution. 1980 Op. Att’y Gen. No. 80-121.

State correctional institution defined. - State correctional institution is any facility used to punish criminal offenders. 1980 Op. Att’y Gen. No. 80-121.

RESEARCH REFERENCES Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 718 et seq. C.J.S. - 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2324 et seq.

ALR. - Substantive challenges to propriety of execution by lethal injection in state capital proceedings, 21 A.L.R.6th 1.

Notes of Decisions
Cited in 18 cases, 1999–2020 · leading case: Dawson v. State, 554 S.E.2d 137 (Ga. 2001).
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Dawson v. State, 554 S.E.2d 137 (Ga. 2001). · cites it 32× “Upon considered review of this difficult issue, we conclude that future use of electrocution as a means of executing death sentences in Georgia would violate the prohibition against cruel and unusual punishment in Art.”
Baze v. Rees, 553 U.S. 35 (2008). · cites it 4× “§ 13-704 (West 2001); Ark.Code Ann. § 5-4-617 (2006); Colo.”
Humphrey v. Wilson, 652 S.E.2d 501 (Ga. 2007). · cites it 8× “In 2001, our General Assembly amended OCGA § 17-10-38 to provide that lethal injection would replace electrocution as this State's method of execution.”
Colwell v. State, 544 S.E.2d 120 (Ga. 2001). · cites it 4× “OCGA § 17-10-38. Should electrocution be declared unconstitutional by this Court of the Supreme Court of the United States, lethal injection will be the means by which Colwell is executed.”
Michael Nance v. Comm'r, Georgia Dep't of Corr., 981 F.3d 1201 (11th Cir. 2020). · cites it 4× “See O.C.G.A. § 17-10-38(a). On its own, the majority raised the issue of whether Mr.”
Lucas v. State, 555 S.E.2d 440 (Ga. 2001). · cites it 2× “This issue has been decided in his favor by this Court’s recent decision 45 declaring execution by electrocution to be unconstitutional and directing that all future executions in Georgia be carried out by lethal injection in accordance with OCGA § 17-10-38, as amended. 22.…”
DeYoung v. Owens, 646 F.3d 1319 (11th Cir. 2011). · cites it 2× “DeYoung last became subject to a new or substantially changed execution protocol on October 5, 2001, when the Georgia Supreme Court declared that execution by electrocution violated the state constitution and directed that “any future executions of death sentences in Georgia be…”
Davis v. Turpin, 539 S.E.2d 129 (Ga. 2000). · cites it 4× “105 (adopting lethal injection except in cases where electrocution is affirmatively elected, effective January 14, 2000); OCGA § 17-10-38 (providing for execution by lethal injection for crimes committed on or after May 1, 2000); 1999 Ga.”
Head v. Ferrell, 554 S.E.2d 155 (Ga. 2001). · cites it 2× “327 ( 554 SE2d 137 ) (2001), declared execution by electrocution to be unconstitutional and directed that all future executions in Georgia be carried out by lethal injection in accordance with OCGA § 17-10-38, as amended. Judgment affirmed in part and reversed in part in Case No.”
Ledford v. Comm'r, Georgia Dep't of Corr., 856 F.3d 1312 (11th Cir. 2017). · cites it 2× “O.C.G.A. § 17-10-38(a) (stating “[a]ll persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection”); Gissendaner, 779 F.”
Hill v. Owens, 738 S.E.2d 56 (Ga. 2013). · cites it 2× “See OCGA § 17-10-38 (c). In light of the foregoing, we conclude that the Board did not have a duty under the mandatory rulemaking provision of OCGA § 42-2-11 (c) (1) regarding the “treatment” of inmates to make rules governing lethal injection.”
Esposito v. State, 538 S.E.2d 55 (Ga. 2000). · cites it 2× “See OCGA § 17-10-38 (providing for execution by lethal injection); 2000 Ga.”
Show all 18 citing cases →
— 17-10-38(a) — 6 cases
Michael Nance v. Comm'r, Georgia Dep't of Corr., 981 F.3d 1201 (11th Cir. 2020). “See O.C.G.A. § 17-10-38(a). On its own, the majority raised the issue of whether Mr.”
Ledford v. Comm'r, Georgia Dep't of Corr., 856 F.3d 1312 (11th Cir. 2017). “O.C.G.A. § 17-10-38(a) (stating “[a]ll persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection”); Gissendaner, 779 F.”
DeYoung v. Owens, 646 F.3d 1319 (11th Cir. 2011). “DeYoung last became subject to a new or substantially changed execution protocol on October 5, 2001, when the Georgia Supreme Court declared that execution by electrocution violated the state constitution and directed that “any future executions of death sentences in Georgia be…”
United States v. Battle, 173 F.3d 1343 (11th Cir. 1999).
Ledford v. Comm'r, Georgia Dep't of Corr., 856 F.3d 1327 (11th Cir. 2017).
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