2022 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 2 - Death Penalty Generally
§ 17-10-31. Requirement of Jury Finding of Aggravating Circumstance and Recommendation of Death Penalty Prior to Imposition; Arguments of Counsel During Sentencing Phase; Jury Instructions; Actions of Judge in Event of Failure to Reach Unanimous Verdict

1. Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the accused to death. Where a statutory aggravating circumstance is not found or where a statutory circumstance is found but a recommendation of death is not made, the jury shall decide whether to recommend a sentence of life imprisonment without parole or life imprisonment with the possibility of parole. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the accused to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. This Code section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty.
2. During the sentencing phase before a jury, counsel for the state and the accused may present argument and the trial judge may instruct the jury:
   1. That “life without parole” means that the accused shall be incarcerated for the remainder of his or her natural life and shall not be eligible for parole unless such person is subsequently adjudicated to be not guilty of the offense for which he or she was sentenced; and
   2. That “life imprisonment” means that the accused will be incarcerated for the remainder of his or her natural life but will be eligible for parole during the term of such sentence.
3. 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.

History. Code 1933, § 26-3102, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 809, § 1; Ga. L. 1973, p. 159, § 7; Ga. L. 2009, p. 223, § 5/SB 13.

Cross references.

Provisions regarding recommendations for imposition of death sentence, § 17-9-3 .

Editor’s notes.

Ga. L. 2009, p. 223, § 8/SB 13, not codified by the General Assembly, provides that: “Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, an accused whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act, provided that: (1) jeopardy for the offense charged has not attached or (2) the accused has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking prosecution after the remand.” This Act became effective April 29, 2009.

Ga. L. 2009, p. 223, § 9/SB 13, not codified by the General Assembly, provides that: “Except as provided in Section 8 of this Act, the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act.”

Ga. L. 2009, p. 223, § 10/SB 13, not codified by the General Assembly, provides that: “A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state.” Ga. L. 2011, p. 752, § 17(3) codified these provisions at Code Section 17-10-16.1.

Ga. L. 2009, p. 223, § 11(a)/SB 13, not codified by the General Assembly, provides that the law as set forth in this Code section as it existed prior to April 29, 2009, shall apply to all offenses committed on and before April 29, 2009, and the amendments by this Act shall apply to all crimes committed on and after April 29, 2009.

Ga. L. 2009, p. 223, § 11(b)/SB 13, not codified by the General Assembly, provides that: “The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment.”

Law reviews.

For article, “Jury Sentencing in Georgia — Time for a Change?,” see 5 Ga. St. B.J. 421 (1969).

For note raising chilling effect on defendant’s constitutional rights posed by this section prior to its 1973 amendment, in light of United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209 , 20 L. Ed. 2 d 138 (1968), see 20 Mercer L. Rev. 309 (1969).

For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987).

For note, “Evaluating the Constitutionality of Proposals to Allow Non-Unanimous Juries to Impose the Death Penalty in Georgia,” see 29 Ga. St. U.L. Rev. 1003 (2010).

For article, “Death Penalty,” see 66 Mercer L. Rev. 51 (2014).

For note, “A Promise Unfulfilled: Challenges to Georgia’s Death Penalty Statute Post Furman,” see 33 Ga. St. U.L. Rev. 839 (2017).

For comment, “Making the Murderer’s Voyeurs: The Influence of Violent Crime Exposure, Social Movements, and Desensitization on Georgia’s Treatment of the Death Penalty,” see 72 Mercer L. Rev. 883 (2021).