Capital Punishment

AuthorRichard Leiter
Pages75-104

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The acceptance of capital punishment, or the death penalty, as a sentence for heinous criminal acts has been hotly debated across the nation over the last few decades. On the books in most states, the death penalty has been challenged by many, originally on grounds that it violated the Constitutional prohibition against cruel and unusual punishment, and later on the procedural grounds that there were not enough due process protections for defendants accused of capital crimes. In general, it was held that since the sentence was so severe, the law must impose the strictest standards of proof to sentence a defendant to death. Consequently, many states have gone through periods in which the death penalty was held as legal, then illegal, then revised and held as legal, then illegal again, and then further revised and held as legal once more. This shifting status often brought unbalanced—unjust—sentencing. For instance, in many of these states one of two defendants accused of identical unrelated crimes committed within weeks of each other drew the death sentence while the other did not, merely because the statute under which they were sentenced was ruled unconstitutional in the intervening time.

The Supreme Court has since handed down explicit guidelines defining the legal imposition of the death penalty, allowing states a new opportunity to legislate a legal death penalty statute that is less likely to be ruled unconstitutional in the future. This does not mean that the process is not still open to attack. As of this writing, new cases on the death penalty are currently wending their way through the courts to the Supreme Court.

Thirty-eight states currently have death penalty statutes on the books. In a few states, the statute remains on the books though it has been declared unconstitutional. In some of these cases, the state legislature can either revise or rewrite the death penalty statute if it chooses to make it the law.

There are twelve states that authorize the death penalty for non-homicide crimes. Of note is California, often known for its radical politics, which lists treason as a capital crime. Other common non-homicide capital offenses are kidnapping, hijacking, and other serious crimes that involve hostage-taking or placing a victim in extreme danger.

In the last five years, the method of execution has become the most controversial element of death penalty statutes. Five states have changed their method of execution. While five states, Alabama, Georgia, Kentucky, New York, and Ohio, have changed from electrocution to lethal injection. Georgia, however, is an interesting case. In the last edition of this book it was noted that Georgia had switched from lethal injection to electrocution. In the intervening three years since then, they have switched back to lethal injection. Georgia’s recent changes in laws is an excellent example of the passionate thinking about this very grave aspect of penal law.

Some states have very complicated criminal statutes; therefore, the following tables may contain less information on some states if nothing explicit can be determined from the state statute alone. Occasionally it is necessary to consult lists or sentencing guidelines that are not part of the code to determine these rules.

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Table 6: Capital Punishment
State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
ALABAMA 13A-5-39, et seq. Yes Mitigating circumstance if defendant under influence of extreme mental or emotional disturbance; forbid execution of “insane” person No minimum age but age is a mitigating circumstance None Homicide during the commission of kidnapping; robbery; rape/sodomy; burglary; sexual abuse; arson; hijacking; murder of police officer or public official while on duty or when related to or caused by or is related to his official position, act, or capacity; murder for pecuniary or other valuable consideration; two or more persons murdered in same act/ course of conduct; victim less than 14 years old; murder under life sentence; murder during arson or by means of explosives; murder by defendant who has previously been convicted of murder within 20 years; murder of witness in civil or criminal trial when murder is caused by or related to the testimony; murder during act of unlawfully assuming control of any aircraft; murder when deadly weapon is fired outside of a dwelling when victim is in dwelling; murder by deadly weapon used from or within a vehicle. Lethal injection, unless defendant requests electrocution
ALASKA 12.55.015 Not authorized
ARIZONA 13-703 Yes, for 1st degree murder with mitigating factors Considered mitigating circumstance 15 None Previous capital convictions or homicides; previous conviction of a “serious offense”; previous felonies with use or threat of violence; knowingly created grave risk of death to persons in addition to victim; procured commission of offense by payment; especially heinous, cruel or depraved manner; adult person and victim under 15 or over 70; victim on duty peace officer and defendant knew or should have known; in custody of state dept. of corrections, law enforcement agency or jail at time of homicide Lethal injection. If defendant is convicted for crime committed prior to November 23, 1992, s/he shall choose between lethal gas or lethal injection.

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State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
ARKANSAS 5-4-601, et seq.; 5-51-201 Yes, capital murder If no aggravating circumstances are found or if mitigating circumstances outweigh aggravating circumstances, the court shall impose life in prison without parole; no defendant with mental retardation at the time of committing murder shall be sentenced to death 16 Treason Homicide committed by a person incarcerated for felony conviction; committed by person unlawfully at liberty after being imprisoned for felony conviction; use of threat or violence in commission of felony; knowingly created grave risk of death to person other than victim or caused the death of more than one person in the same criminal episode; committed in order to prevent arrest or escape custody; committed for pecuniary gain; committed for purposes of disrupting/hindering lawful exercise of any government or political function; especially cruel or depraved manner by use of torture or methods evidencing the defendant’s pleasure in committing the murder; committed by means of destructive explosive, bomb, similar device Lethal injection or electrocution if lethal injection held unconstitutional

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State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
CALIFORNIA Pen. Code §§37; 190, et seq.;§§3604, et seq.; §§3700, et seq. Yes, if crime is 1st degree murder with enumerated special circumstances If defendant found insane at any time prior to execution, the execution is suspended. Upon recovery, execution is rescheduled 18 Treason Murder committed for financial gain; previously convicted of first/second degree murder; multiple murders in same proceeding; bomb, explosives, grave risk; for purposes of avoiding lawful arrest or attempt to escape lawful custody; murder intentional and involved the infliction of torture; intentional killing of peace officer, federal law officer/ agent, fireman in performance of duties, and defendant should have known or knew official status of victim; victim was a juror in any court of record in local, state, or federal system in any state and the murder was intentionally carried out in retaliation or prevention of the victim’s official duties; the murder was intentional and perpetrated by means of a firearm being discharged from a motor vehicle intentionally at another outside the vehicle with intent to kill; witness of crime intentionally killed to prevent retaliatory testimony at criminal proceeding; retaliation against judge or former judge of this state or any other state, prosecutor, etc.; state officials or officials of any local government of this state or any other state for reasons relating to their office; lying in wait; especially cruel, atrocious, heinous; racial; committed along with robbery, kidnapping, rape, sodomy, oral copulation, burglary, performance of a lewd act upon a child under the age of 14; arson, train wrecking; carjacking; intentionally poisoned; mayhem; rape by instrument; member of a street gang murdering to further activities of the gang Lethal gas or lethal injection, but if defendant fails to choose, lethal injection

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State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
COLORADO 8-3-101, et seq; 18-3-301, et seq; 18-1.3-1201 et seq. Yes for Class 1 felonies Mitigating factor; suspend sentence; if “mentally retarded” then sentenced to life in prison. 18 First degree kidnapping if victim has been injured, but defendant will not be sentenced to death if victim is liberated alive prior to the conviction of kidnapper. Treason. Murder committed by person imprisoned for Class 1, 2 or 3 felony; previous crime of violence; intentionally killed peace officer/former peace officer, judge, firefighter, elected official, federal officer he knew or should have known to be engaged in official duties or retaliation for past official duties; kidnapped person intentionally killed; agreement to kill; explosives or incendiary device; pecuniary gain; heinous or cruel; hate crime; victim was under 12; defendant killed 1 or more persons in the same episode; defendant killed victim knowing she was pregnant. Lethal injection
CONNECTICUT 53a-46a; 53a-54b; 54-100,et seq. Yes, capital felony Suspend sentence 18 None Murder committed in commission of felony; 2 or more prior felonies involving infliction of serious bodily injury; knowingly created grave risk of death to other persons; murder of a police officer, chief inspector in criminal
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