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.

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