Mark McClain will be one of those 40 if he is executed as scheduled Tuesday for killing a pizza store manager in Augusta for about $100 during a robbery.
He has been waiting for his death sentence to be carried out for 14 years, one year longer than the current national average but two years shorter than the typical stay on Georgia's death row.
The average length of time most inmates spend on death row has grown exponentially since the death penalty was reinstated in 1973 by the U.S. Supreme Court. The reason: the current appeals process.
The average delay was two years when the death penalty was brought back, but a decade later, the process was averaging 10 years -- and getting longer.
"I tell the victim's family ... brace yourself for years of endless appeals," said Fred Bright, the district attorney in the Ocmulgee Judicial Circuit and prosecutor in 25 death-penalty trials. "It gets mind-boggling after a while."
Mr. McClain's situation is typical.
On Friday, the Georgia Board of Pardons and Paroles denied his request for clemency, one of many legal avenues his lawyers have tried over the years.
First, they submitted his automatic appeal to the Georgia Supreme Court, then the U.S. Supreme Court, getting nowhere in either.
Next, they filed a petition to the superior court in Butts County, where he's imprisoned on death row. They lost then and also in their appeals of that decision to the U.S. and Georgia high courts.
In 2002, they filed a petition in federal district court that was denied, then appealed that decision to the 11th Circuit Court of Appeals and lost again -- but not until Dec. 18, 2008.
"There's no mechanism on the back end to require a judge to issue a decision in an expeditious matter," said Russ Willard, a spokesman for Georgia Attorney General Thurbert Baker. "There are cases where additional years will be added onto the appeals process because a judge is sitting on the decision."
Leah Sears, a retired Georgia chief justice defended her former colleagues.
"It's not judges. These things take time," she said.
Georgia's top court, though, does have a deadline that requires a decision in all cases within months. Ms. Sears would favor a similar cutoff for other judges only if legislators boosted funding for courts.
"Everyone wants it quick, but no one wants to fund the due process to make sure all the T's are crossed and the I's are dotted," she said.
Many appeals stem from complaints that public defenders were poorly funded and lacked access to the investigators, psychiatrists and other experts who could help mount a credible defense.
Georgia created a statewide system of public defenders, bowing to pressure from judges. Critics say it has never been adequately funded, but legislative leaders disagree.
Legislators were upset by revelations that defense costs for Atlanta courthouse shooter Brian Nichols had soared to $3 million, so they resisted calls for additional funding, even when the state's indigent-defense lawyers staged a mutiny against the director of the program.
Instead, the Legislature took up bills designed to streamline capital trials by ending a requirement for a unanimous jury and ignoring bills calling for a moratorium on executions.
The most definitive study cited by death-penalty opponents on costs was done in 1993 by North Carolina, which concluded each execution cost $2.16 million more than a life sentence.
"From all indications, the United States could be safer without the death penalty and would realize an enormous monetary saving as well," said Sara J. Totonchi, the associate director of the Southern Center for Human Rights. "Judging by the crime rates in those states that have abolished capital punishment and instituted alternative sentences, the absence of the death penalty would cause no rise in the murder rate."
Georgia legislators have struggled in recent years with the cost of trial defense, but few have balked at the cost of incarceration or defending every appeal, and few efforts to streamline appeals have been successful.
Georgia already has a unified appeal that automatically goes to the state's top court. The justices even devised a checklist of topics in an effort to consider them all at once. It does not prohibit other forms of appeal in state and federal courts and the time each takes.
Condemned murderers, their lawyers and death-penalty opponents deny filing legal obstacles just for the sake of delay. They argue the complexity of such cases requires diligence.
"The reasons the time is getting longer (between conviction and execution) is because mistakes have been discovered in these capital cases, even innocent people have been freed," said Richard Dieter, the executive director of the Washington-based Death Penalty Information Center, which opposes capital punishment. "One alternative is simply to not have the death penalty. That's what puts the pressure on the system."
With 138 people freed from death row since capital punishment's reinstatement, including six in Georgia, opponents say there's plenty of reason for the extra care.
The national Innocence Project has become famous for its success winning exoneration, but it has never represented a case in Georgia because the state already has a mechanism for getting convicts lawyers during appeals.
Few murders include DNA evidence. Other common avenues of appeal involve trial procedures, witness reliability and the competence of the defense attorney.
A new avenue could be opening up to question the credibility of some long-standing types of evidence, such as fingerprints and ballistics analysis. A study issued in February by the National Academy of Science cast doubt on the quality of some crime labs and other experts.
"There is a dearth of peer-reviewed, published studies establishing the scientific basis and reliability of many forensic methods," the academy said when the report was released. "Moreover, many forensic science labs are underfunded, understaffed and have no effective oversight."
While not commenting on any pending cases or past convictions, the report does offer hope to defense attorneys and death-penalty opponents, many of whom reviewed their files for ways it could be used in appeals.
The typical murderer is 27 at the time of the crime, but the lengthy appeals have raised the average age on death row to 42. A quarter of the inmates are 50 or older, and the nation's oldest is a 94-year-old in Arizona, according to the U.S. Bureau of Justice Statistics.
At the current rates of death for all U.S. prisoners in state custody, eight death-row inmates will die each year without stepping into the death chamber.
"Just because you get a death sentence doesn't mean you will get executed," Mr. Dieter said. "The odds are you won't."
By his count, 8,000 people have been given a death sentence since 1973 and 1,176 have been executed, with just 3,220 remaining on death row. That means roughly half got off death row by dying for other reasons or by getting exonerated or having their sentences commuted.
Mr. Bright has prosecuted as many death penalty cases as anyone in the state, but when asked whether he might stop seeking it eventually because the expense and delays are too great, he said no.
"I've never reached that stage," he said, " and the day I do, I'll retire."
OTHERS FROM AUGUSTA ON DEATH ROW
ROBERT O. ARRINGTON: Direct appeal to the Georgia Supreme Court is pending. Court heard oral arguments in August. Mr. Arrington was sentenced to death for the April 4, 2001, murder of Kathy Lynn Hutchens, 46, after she forced him to move out of her home. He also killed his wife, Elizabeth, in 1986.
REINALDO RIVERA: Has a pending state habeas petition. There was a hearing last month, and parties may submit any new matters by Dec. 4. Mr. Rivera was sentenced to death for the Sept. 9, 2000, death of Army Sgt. Marni Glista, 21. Mr. Rivera admitted raping and killing three other girls.
WILLIE W. PALMER: Granted a second trial in Burke County at which he was convicted and sentenced to death again. The appellate process has not begun. Mr. Palmer murdered his estranged wife, Brenda Palmer, 31, and stepdaughter, Christine Jenkins, 15, on Sept. 10, 1995.
ERNEST U. MORRISON: Habeas petition denied in State Court; petition to the U.S. Supreme Court pending. Mr. Morrison can still challenge by filing a federal habeas petition. He was sentenced to death for the Jan. 9, 1987, rape, robbery and murder of a family acquaintance, Mary Edna Griffin, 54.