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2018 Georgia Code 17-10-38 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 17-10-38 Case Law from Google Scholar Amendments to OCGA 17-10-38

TITLE 17 CRIMINAL PROCEDURE

Section 10. Sentence and Punishment, 17-10-1 through 17-10-71.

ARTICLE 2 DEATH PENALTY GENERALLY

17-10-38. Death sentences generally.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

(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.)

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 amendment 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 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."

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, F.3d (11th Cir. Sept. 3, 2008)(Unpublished).

Changes made in 2013 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, §§ 747, 748, 750.

C.J.S.

- 24 C.J.S., Criminal Law, § 2110 et seq.

ALR.

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

Cases Citing O.C.G.A. § 17-10-38

Total Results: 8  |  Sort by: Relevance  |  Newest First

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Lucas v. State, 555 S.E.2d 440 (Ga. 2001).

Cited 70 times | Published | Supreme Court of Georgia | Nov 19, 2001 | 274 Ga. 640, 2001 Fulton County D. Rep. 3495

...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....
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Head v. Ferrell, 554 S.E.2d 155 (Ga. 2001).

Cited 52 times | Published | Supreme Court of Georgia | Oct 22, 2001 | 274 Ga. 399, 2001 Fulton County D. Rep. 3163

...This portion of the judgment of the habeas court must be affirmed, as this Court's recent decision in Dawson v. State, 274 Ga. 327, 554 S.E.2d 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....
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Humphrey v. Wilson, 652 S.E.2d 501 (Ga. 2007).

Cited 47 times | Published | Supreme Court of Georgia | Oct 26, 2007 | 282 Ga. 520

...ble goals of punishment." [36] We thus concluded that Fleming's punishment was cruel and unusual. In Dawson, we relied on the principles of Fleming to hold that death by electrocution was cruel and unusual. 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....
...committed before [the] statute's effective date. In anticipation of such a ruling and with full awareness of the disfavor into which death by electrocution has fallen, [cits.] the Legislature made express provisions in the uncodified section of OCGA § 17-10-38....
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Colwell v. State, 544 S.E.2d 120 (Ga. 2001).

Cited 41 times | Published | Supreme Court of Georgia | Mar 2, 2001 | 273 Ga. 634

...carried out. There is no statutory provision in Georgia that permits a person sentenced to death to choose the method of execution. Because Colwell's crimes were committed before May 1, 2000, electrocution is the statutory method of execution. OCGA § 17-10-38....
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Dawson v. State, 554 S.E.2d 137 (Ga. 2001).

Cited 40 times | Published | Supreme Court of Georgia | Oct 5, 2001 | 274 Ga. 327, 2001 Fulton County D. Rep. 2950

...e the prohibition against cruel and unusual punishment in Art. I, Sec. I, Par. XVII of the Georgia Constitution. Therefore, we direct that any future executions of death sentences in Georgia be carried out by lethal injection in accordance with OCGA § 17-10-38, as amended....
...nal standard." Id. 2. The people of Georgia, through their elected representatives, have chosen electrocution as the method of executing persons sentenced to death for capital offenses committed before May 1, 2000. Ga. L.2000, p. 947, § 1. See OCGA § 17-10-38....
...h it." The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Id. In OCGA § 17-10-38, as amended, the Legislature also contemplated "what may be," id., when it recognized the possibility that this Court would find unconstitutional its retention of electrocution as the method of executing persons sentenced to death for capital offenses committed before that statute's effective date. In anticipation of such a ruling and with full awareness of the disfavor into which death by electrocution has fallen, [1] the Legislature made express provisions in the uncodified section of OCGA § 17-10-38....
...nishment proscribed by the Ohio Constitution or the United States Constitution"). 3. Our reevaluation of the constitutionality of electrocution as a method of execution in Georgia is influenced greatly by the enactment of the amended version of OCGA § 17-10-38....
...2726, 33 L.Ed.2d 346 (1972) (Blackmun, J., dissenting). 2. Based on a new interpretation of the Georgia Constitution, the majority has determined that the legislature really meant to abolish execution by electrocution for all condemned prisoners when it amended OCGA § 17-10-38....
...and therefore the people of this state, condemn any future use of electrocution as a means of execution because they consider it to be cruel and unusual. And they determine all this despite the fact that the amended statute plainly states that "Code Section 17-10-38 as it existed prior to its amendment ......
...The majority cannot claim to be surprised by this evidence and suddenly spurred into action. Something may have changed in the past couple of years, but it was not the amount of available evidence on electrocution. Moreover, the General Assembly had access to most of this information when it amended OCGA § 17-10-38....
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Esposito v. State, 538 S.E.2d 55 (Ga. 2000).

Cited 36 times | Published | Supreme Court of Georgia | Oct 30, 2000 | 273 Ga. 183

...124, 226 S.E.2d 922 (1976). [6] McDade v. State, 270 Ga. 654, 656(3), 513 S.E.2d 733 (1999). [7] DeYoung v. State, 268 Ga. 780, 789(8), 493 S.E.2d 157 (1997); Bright v. State, 265 Ga. 265, 279-280(5)(b), 455 S.E.2d 37 (1995); OCGA § 24-3-50. [8] See OCGA 17-10-38 (providing for execution by lethal injection); 1999 Ga....
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Davis v. Turpin, 539 S.E.2d 129 (Ga. 2000).

Cited 33 times | Published | Supreme Court of Georgia | Nov 13, 2000 | 273 Ga. 244, 2000 Fulton County D. Rep. 4199

...§ 40-23-114 (abolishing electrocution for crimes committed on or after January 1, 1999, and providing lethal injection as an alternative for crimes committed before that date); Fla.Stat. Ann. § 922.105 (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....
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Hill v. Owens, 292 Ga. 380 (Ga. 2013).

Cited 16 times | Published | Supreme Court of Georgia | Feb 4, 2013 | 738 S.E.2d 56, 2013 Fulton County D. Rep. 168

...ive dose of a drug with the sole intention of causing immediate death cannot, we think, be reasonably described as medical care. Furthermore, the Code specifically provides that lethal injection does not constitute the practice of medicine. 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. (b) Ha...