Criminal Law

Capital Punishment: Getting the Death Penalty

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Some of the most serious crimes are met with the most serious of sentences: Capital punishment. This is when the federal or a state government authorizes and sanctions the execution of a criminal defendant. The death penalty is the ultimate punishment. And it should go without saying that it's serious business. The criminal laws have many safeguards ensuring a death sentence isn't handed down lightly.

Some of these safeguards include requirements that:

  • Capital punishment laws clearly set out what crimes the death penalty applies to
  • Aggravating and mitigating circumstances be taken into account when deciding whether to execute a defendant
  • The sentence fit the crime, and
  • A jury decides

Capital punishment laws are different depending on if a case is in federal or state court. In the federal law, capital punishment is available for some crimes. However, it's not available at all in some states. You need to check the laws that apply to your case to see if the death penalty is available.

Clear Laws

The Eighth Amendment to the US Constitution bars cruel and unusual punishment. The Eighth Amendment is violated if the death penalty is applied haphazardly or to any old crime (in legalese that's called "arbitrary and capricious"). So, to avoid this problem, capital punishment laws have to set out clearly when the death penalty may be imposed. Generally, capital punishment laws either:

  • Name the specific crimes that may be punished by death. For example, a statute may say the death penalty may be imposed for "first-degree" or "capital" murder, and then define what that crime is
  • Most death penalty laws define the crimes and then require the presence of one or more "aggravating" factors or circumstances before the death sentence may be ordered. An aggravating factor is something that makes the crime more serious or distasteful to society. An example of this kind of law is death sentence may be imposed for murder if the defendant committed it for money or for something valuable. Most statutes list the aggravating circumstances that may be considered

Whether it's a federal or state case, most death penalty laws apply when the defendant murders a victim. There are some exceptions, though. For example, the federal crimes of treason and espionage are punishable by death. And in some states, a second conviction for a sexual crime committed against a child may warrant the death penalty.

Mitigating and Aggravating Factors

Mitigating circumstances or factors are facts or circumstances that make the crime less serious. The Eighth Amendment requires mitigating factors be considered before the death sentence may be imposed. This helps ensure a defendant is treated as a unique human being, rather than placed in a pigeon hole simply because he committed a capital crime. Again, mitigating factors are usually set out in the criminal law that applies to the case, and they vary by state and in the federal system. Some common examples include:

  • The defendant has no significant criminal history or prior convictions
  • At the time of the crime, the defendant was under the influence of extreme mental or emotional disturbance
  • The victim participated in or consented to the crime
  • The defendant wasn't the main actor in the crime, but rather played a minor role

In most death penalty laws, the mitigating factors have to be weighed and balanced with aggravating factors. If mitigating factors outweigh aggravating factors, the death penalty shouldn't be imposed, and vice versa.


The Sixth Amendment gives criminal defendants the right to a jury trial. This includes the decision as to whether to the death sentence should be imposed. As a practical matter, a death sentence won't be imposed unless a jury recommends it to the sentencing judge. In other words, it's the jury's job, not the judge's, to weight the mitigating and aggravating factors and decide if the death penalty should be imposed.

In most cases, the same jury that listened to the trial and convicted the defendant will also decide whether the defendant should be put to death. There are some exceptions, though. If the original jury has been excused, such as when there's a long delay between the conviction and sentencing phase, a new jury may be called to consider the death penalty. Another exception is if the defendant pleaded guilty. Here, no jury decided his guilt, and so a jury may be seated to consider the death sentence. Also, if the defendant asks for it and the prosecution agrees, a jury may be waived and the judge may decide if the death penalty should be ordered.


Under the federal law, as well as the death penalty laws in most states, anyone sentenced to death may file an appeal. This is when the case is looked at again by a higher court (called a "court of appeals" in the federal and many state systems) to make sure there were no legal errors made. Under the federal rule, appeals in capital cases take priority over other criminal appeals. Nonetheless, because these cases are often very complicated and because the consequences are so high, it's not uncommon for an appeal to take several years to be decided.

If the court on appeal finds that there was a serious error - such as when there wasn't enough evidence to support the jury's conclusion that there was an aggravating factor - the case will be sent back (called "remanded"). There will then be another hearing on the death penalty.

If there are no errors, the death sentence will be carried out. An exception is if the defendant is able to convince the state or federal authorities to:

  • "Commute" or change the sentence to something less severe, li life in prison, or
  • Grant a "pardon," meaning that the crime and the sentence are forgiven completely

Questions for Your Attorney

  • What are the chances of having my death sentence overturned on appeal? I heard that the courts in our state don't do it very often.
  • Why would the prosecution insist on seeking the death penalty if I'm willing to agree to life in prison without parole?
  • If the death penalty is abolished in our state while I'm waiting for my appeal to be decided, will I still be executed?
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