2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
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.)

- 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."

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

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 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).

§ 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).

- 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).

- 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).

- 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, 293 Fed. Appx. 693 (11th Cir. 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 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.

- 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2324 et seq.

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