Capital Punishment Law - Guide to Death Penalty Law

What is Death Penalty Law?

Death penalty law, also known as capital punishment law, covers issues relating to the imposition of death as punishment for the commission of a crime. More than half of the states allow the death penalty, as do the federal government and the U.S. Military. Lethal injection is now the most common form of execution, although electrocution, gassing, and other methods were used for much of the past century. The death penalty is usually imposed in homicide cases where the circumstances of the crime are particularly egregious. It can also be imposed in certain cases in which the victim survives, such as child rape cases, although this is rare.

Thousands of inmates in the United States are currently on death row awaiting execution. However, based on current trends, only a very small percentage of these inmates will eventually be put to death. Evidence suggests that capital punishment is losing support among the American people. In recent years the Supreme Court has also curtailed the types of cases in which it may be used. The Court has determined that the Eighth Amendment prohibition against cruel and unusual punishment does not allow the death penalty to be imposed for the rape of an adult. Executing inmates who are mentally incompetent or who were juveniles at the time the crime was committed has also been deemed unconstitutional.

Criticism of the Death Penalty

Proponents of the death penalty argue that it serves the ends of justice and acts as a deterrent. Critics do not necessarily disagree with these assertions. Rather, they claim that any such benefits are outweighed by a number of concerns affecting the families of victims and society at large. For example, some people believe that imposition of a life sentence without the possibility of parole gives better closure to the victim’s loved ones. The multiple appeals taken in death penalty cases, it is argued, create uncertainty and keep the focus on the perpetrator, instead of on the victim. Critics of capital punishment also voice concerns over the potential for execution of the innocent, pointing to several high-profile cases of death row inmates being exonerated due to DNA evidence.

The Sentencing Phase of a Capital Case

When prosecutors decide to seek the death penalty in a criminal trial, the proceedings will be “bifurcated.” This means that the portion of the trial during which the jury determines guilt or innocence will be conducted separately from the sentencing portion of the case. This provides a greater degree of fairness for the defendant. At trial, the jury is instructed to concentrate solely on whether the prosecution met its burden of proving the allegations beyond a reasonable doubt, without concern for what will happen to the defendant if convicted. Bifurcation also allows the defendant’s attorneys to set aside the issue of guilt or innocence once a conviction is entered, and focus entirely on convincing the jury to spare the defendant’s life.

The decision to impose the death penalty must be made by the jury, not the judge. During the penalty phase, the attorneys for both sides present the jury with factors to consider in making this decision. The prosecution offers evidence of aggravating circumstances, such as previous convictions, a lack of remorse, or the fact that the offense was committed in an especially heinous manner. The defense counters with evidence of mitigating circumstances, such as the defendant’s young age or diminished capacity. This is also the time for family and friends of the victim to make statements to the jury about the impact of the defendant’s conduct on their lives.

Pursuing an Appeal

A defendant who has been convicted of a capital offense and sentenced to death will have an opportunity to appeal his or her case to a higher court. Death penalty appeals occur in stages. The first stage is known as direct appeal. For an individual convicted in state trial court, the direct appeal is filed in the state appellate court system. The direct appeal can only raise issues that appear on the record, such as erroneous evidentiary rulings made by the judge at trial.

During the next stage of appeal, the defendant will ask for post-conviction relief from the state court. Issues outside the record, such as evidence that the defendant’s attorney was not an effective advocate, can be raised at this time. Once these state remedies have been exhausted, the defendant can petition the federal court for a writ of habeas corpus, and after that, he or she can petition the U.S. Supreme Court for a writ of certiorari. The final stage involves asking the state governor to grant clemency. Of course, this is a terse overview of a complex process, and anyone dealing with a potential death penalty appeal should seek advice from an attorney. This is especially true since every stage of the appellate process is governed by strict time deadlines.

Representation in Death Penalty Cases

If you or a loved one has been charged with a capital offense, you need to speak with an attorney right away. Even if the public defender’s office has already been assigned to the case, you are free to consult with a private attorney of your choice, and it is highly recommended that you do so.



Death Penalty Law - US

  • ABA - Capital Punishment - Moratorium Project

    From 2003 to 2007, the Moratorium Project undertook its first series of assessments on the administration of capital punishment in eight U.S. states. The assessments give jurisdictions an objective instrument to evaluate the administration of the death penalty, based upon uniform benchmarks in varied aspects of capital punishment processes. The reports demonstrate (1) why jurisdictions should undertake comprehensive studies of their death penalty systems, (2) the range of topics that must be considered in any thorough assessment, and (3) why moratoriums are necessary. The actual practices of these capital jurisdictions were then compared to a series of recommendations on the administration of the death penalty, based on the original ABA Protocols on the Administration of Capital Punishment (2001) and the revised version (2010).

  • Bureau of Justice Statistics - Capital Punishment

    The corrections unit collects data on persons held under sentence of death and persons executed during the calendar year from the state departments of correction and the Federal Bureau of Prisons. Preliminary counts of executions carried out during the subsequent calendar year are also presented. This page summarizes the movement of prisoners received and removed from under sentence of death. Data on offenders' sex, race, Hispanic origin, education, marital status, age at time of arrest for the capital offense, legal status at time of the offense, and method of removal are presented. The page also includes information on executions, trends, and time between imposition of death sentence and execution.

  • Death Penalty Information Center

    The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. The Center was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for journalists, and serves as a resource to those working on this issue. The Center is widely quoted and consulted by all those concerned with the death penalty.

  • Federal Death Penalty Resource Counsel (FDPRC)

    The principal activities of FDPRC include monitoring federal death penalty cases, helping judges recruit counsel for federal capital prosecutions and advising courts about CJA issues and the defense function in federal death penalty cases, consulting with individualassigned counsel, providing resource materials, and training on capital case defense techniques. FDPRC has advised and assisted CJA panel attorneys, federal defenders, judges, the Judicial Conference Defender Services Committee, and the Administrative Office of the U.S. Courts.

  • Innocence Project

    The Innocence Project was founded in 1992 by Barry C. Scheck and Peter J. Neufeld at the Benjamin N. Cardozo School of Law at Yeshiva University to assist prisoners who could be proven innocent through DNA testing. To date, 252 people in the United States have been exonerated by DNA testing, including 17 who served time on death row. These people served an average of 13 years in prison before exoneration and release.

  • National Criminal Justice Reference Services (NCJRS) - Capital Punishment

    Established in 1972, NCJRS is a federally funded resource offering justice and substance abuse information to support research, policy, and program development worldwide.

  • - 36 States with Death Penalty / 41 Federal Capital Crimes

    The death penalty in the United States is primarily governed by state law, not federal law. Although there is a federal death penalty, more than 98 percent of the men and women on death rows across the United States are incarcerated as a result of state laws. Therefore, the legislation that most directly affects who is sentenced to death in the United States, what appellate processes they have, and how and when they are executed, is legislation at the state level.

  • Statutes Regarding the Death Penalty

    An alphabetical list of all the statutes regarding capital punishment in the US Federal Code.

  • Stay of Execution - Definition

    In cases where the death penalty has been imposed, a stay of execution is often sought to defer the execution of the convicted person. This may occur if new evidence is discovered that will exonerate the convicted person or in attempts to have the sentence commuted to imprisonment. In the United States of America, all death sentences are automatically stayed pending a direct review by an appeals court. If the death sentence is found to have been legally sound, the stay is lifted.

  • USDOJ - Federal Death Penalty System

    The federal cases in which a defendant is eligible for a capital sentence are generally those in which: (1) the defendant is charged with a crime for which the death penalty is a legally authorized sanction, (2) the defendant intended or had a high degree of culpability with respect to the death of the victim, and (3) one or more aggravating factors specified in a statutory list are present in the case. The statutory aggravating factors include such factors as the commission of a killing in the course of another serious offense, the defendant's having a prior criminal history involving serious violent offenses, the commission of a killing after substantial planning and premeditation, killing multiple victims, or endangering the lives of other persons (in addition to the person killed) in committing the crime. 18 U.S.C. 3591-93.(1) To seek a capital sentence, a prosecutor must file a notice of intent to seek the death penalty. The notice must identify the aggravating factor or factors which the government proposes to prove as justifying a sentence of death. 18 U.S.C. 3593(a).

Death Penalty Law - International

  • Amnesty International - Death Penalty

    The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice. It violates the right to life as proclaimed in the Universal Declaration of Human Rights. Amnesty International opposes the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.

  • Correctional Services of Canada - Abolition of the Death Penalty 1976

    The abolition of the death penalty is a significant development in the advancement of human rights. Everyone's right to life is enshrined in Section 7 of our Canadian Charter of Rights and Freedoms. This fundamental right is also enunciated in Article 3 of the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights.

  • Council of Europe - Death Penalty

    Europe is today the only region in the world where the death penalty is no longer applied. All the Council of Europe's 47 member states have either abolished capital punishment or instituted a moratorium on executions. The Council of Europe played a leading role in the battle for abolition, believing that the death penalty has no place in democratic societies.

  • United Nations - Universal Declaration of Human Rights

    The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 General Assembly resolution 217 A (III) (French) (Spanish) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected.

  • World Coalition Against the Death Penalty

    The World Coalition Against the Death Penalty aims to strengthen the international dimension of the struggle against capital punishment. Wherever the death penalty is in force, it contributes to reducing and, better still, definitively abolishing death sentences and executions. To do this, the Coalition facilitates the constitution and development of national and regional coalitions against the death penalty, leads lobbying actions towards international organisations and States, and organises events which have an international impact.

Pro Death Penalty Organizations

  • Criminal Justice Legal Foundation

    The Criminal Justice Legal Foundation was established in 1982 as a nonprofit, public interest law organization dedicated to restoring a balance between the rights of crime victims and the criminally accused. The Foundation's purpose is to assure that people who are guilty of committing crimes receive swift and certain punishment in an orderly and constitutional manner.

  • Pro Death Penalty

    All over the country, news stories bemoan and hype the countdown to execution number 1,000. But where are the stories regarding the ripple effects of the heinous crimes that these murderers were executed for committing? Who is counting the victims? A conservative estimate puts the number of victims of these 1,000 murderers at 1,895. Why do we hear so much about the killers and so little about the victims and their loved ones who are left behind to pick up the pieces?

Anti Death Penalty Organizations

  • American Civil Liberties Union (ACLU) - Capital Punishment

    The ACLU is our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.

  • Anti Death Penalty

    All executions since 1976 have been for murder or conspiracy to commit murder, although other crimes are eligible for the DP depending on what state you are in.

  • Death Penalty Focus

    Founded in 1988, Death Penalty Focus is one of the largest nonprofit advocacy organizations in the nation dedicated to the abolition of capital punishment through public education; grassroots and political organizing; original research; media outreach; local, state and nationwide coalition building; and the education of religious, legislative and civic leaders about the death penalty and its alternatives.

  • National Coalition to Abolish the Death Penalty (NCADP)

    The National Coalition to Abolish the Death Penalty (NCADP) was founded in 1976 in response to the Supreme Court decision in Gregg v. Georgia which permitted executions to resume in the United States. Our mission: abolish the death penalty in the U.S. and support efforts to abolish the death penalty world wide.

Publications Related to the Death Penalty

  • Capital Defense Weekly

    Started in the summer of 1997, Capital Defense Weekly / A Capital Defender’s Toolbox, is arguably the oldest “blawg” still in operation, predating even the first usage of the term “web log”, “blog” and “blawg”. Over the years CDW, as it is often known, has been used as an example of the future of law reviews,1 a way to keep current capital defense theories,2 and a showcase of how a website can impact an area of the law.3

  • Criminal Justice - Capital Punishment Focus

    The formal execution of criminals has been used in nearly all societies since the beginning of recorded history. Before the beginning of humane capital punishment used in today’s society, penalties included boiling to death, flaying, slow slicing, crucifixion, impalement, crushing, disembowelment, stoning, burning, decapitation, dismemberment and scaphism. In earlier times, the death penalty was used for a variety of reasons that today would seem barbaric.

  • NAACP Legal Defense and Educational Fund, Inc. (LDF) - Death Row USA

    The NAACP Legal Defense and Educational Fund, Inc. (LDF) was founded in 1940 under the leadership of Thurgood Marshall. Although LDF's primary purpose was to provide legal assistance to poor African Americans, its work over the years has brought greater justice to all Americans.

Articles on Related to Death Penalty Law

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