Further Thoughts On Capital Offenses

Back in 2009, I wrote about my thoughts and feelings regarding which crimes should carry the death penalty.  Over the intervening years, I’ve thought about this off and on and have some revised thoughts.

I still believe 100% in the justice and necessity of the death penalty and wish that it was used more consistently.  This is both for its use as a specific deterrent – persons executed cannot commit another crime – and a general deterrent.  I’m just reflecting on what crimes should carry a penalty and which should, perhaps, carry a mandatory penalty.


Clearly, murder is the crime most associated with the death penalty in the 20th and 21st century.  Murder is, rightly, considered the most serious crime that anyone can commit – the crime of depriving someone else of their right to life.  If I could write the laws, many murders would carry an automatic death sentence.  Among these would be:

  • Murder for hire – both the person paying for the murder and the person committing the murder should be sentenced to death
  • Murder during the commission of a violent felony.
    • I would probably extended this to include all participants, not just the persons who actually killed.
    • If all of the deaths were clearly self-defense on the parts of the victim, then there should not be murder charges filed at all.
  • Murder to prevent or intimidate witnesses in a criminal trial.
  • Murder of a police officer, fire fighter or similar in the course of the victim’s duties.
  • Murder committed by a person under a life or long term prison sentence.

In other cases of premeditated murder and murder with malice aforethought – i.e. planned murder and murder committed knowing that it was murder even if not previously planned – should at least cary the option of the death penalty.

Crimes against children

Crimes against children are also among the most serious crimes that can be committed.  Several should carry at least the chance of a death sentence.  The rape or molestation of a child by a person significantly older than them – probably a child under 10 or 12, by a person more than four to six years older – should carry a death sentence.  But I think that abuse or neglect leading to the death of a child under someones care should also carry the possibility of a death sentence.

Crimes of sexual violence

Rape, which is more about power than sex, should carry the possibility of a death sentence under at least three circumstances.

First, if the rapist has committed multiple, violent, rapes they should be eligible for a death sentence.  In this case, I think that prior convictions, including convictions in other jurisdictions, should also count.

Second, in cases of particularly violent rape – where the victim suffers a permanent or disabling injury.  This is a bit of a grey area, and would probably need to be left up to the discretion of the jury.

Third, in cases of gang rape all of the rapists should be subject to a death sentence.  Why, you may ask?  Gang rape is mass violence against an individual, and both the general and specific deterrent factor is warranted.

Other crimes leading to death

There are laws on the book that can result in a death sentence for arson, air piracy (i.e. hijacking) and train wrecking that lead to death.  I think that these should extend to any crime where the death of an uninvolved person is an expected, or at least highly probable, outcome.

Drug trafficking

I’m of two minds on drug trafficking.  I am no supporter of the so called War on Drugs, and would rather see recreational narcotics kept available with the existing, and possibly more dangerous, recreational drugs: alcohol and tobacco.

On the other hand, if society has deemed that drugs are as dangerous as they seem to have, then drug trafficking should be treated in a maner similar to other crimes against society and national security.

Back on the gripping hand, if the United States passed drug trafficking laws similar to what Singapore and Malaysia have, I am convinced that we’d see more police officers killed.  If you are going to be executed for having the drugs, you might as well kill the cop since that increases the chance that you’ll not get caught – at least marginally, and criminals are known for their marginal thinking.

Mandatory versus discretionary sentences

I think that there is a place in a just society for both mandatory and discretionary death sentences.  In order for a crime to carry a mandatory and automatic sentence, the law must be clear as to what factors constitute the specific crime.

I also feel that there needs to be less discretion as to what charges can be filed.  If someone appears to have possibly committed a crime carrying a capital sentence – even a discretionary one – that should be the maximum charge that is filed.  This restriction should also extend to plea bargins.  Of course to accomplish this, we need to increase the availability of all parties involved in a criminal trial so that there is less pressure to make plea bargins.

In cases of crimes carrying a discretionary death sentence, the factors that would lead the jury or judge to decide between a sentence of death and the alternative – probably life without parole, but possibly just an extremely long prison sentence – should be specific for the crime.  At most there should only be two mitigating factors that are universal: age and mental age – i.e. anyone too young or with too severe of a mental handicap to totally comprehend the nature of their crime and punishment.  And, in cases of crimes otherwise carrying a mandatory death sentence, the threshold to remove the sentence should be quite high.

Juvenile offenders

I also have two minds regarding the extension of death sentences to crimes committed by juveniles.  On one hand, the juvenile brain may not be able to fully understand the consequence of their actions.  On the other hand, we already have cases where gangs and other criminal enterprises use juveniles for specific crimes because they won’t be subject to as harsh a penalty as the adult.  However, if we do accept that at some point a juvenile should be subject to adult trial and punishment for a crime, they should be subject to the adult punishment.


The biggest problem with how the death penalty is used in the United States in the 21st century is that persons under a sentence of death are allowed to fight their sentence for years.  Opponents of the death penalty and supporters of this system will point out the cases where a person is released from their death sentence after being acquitted during a new trial.  But these are rare – and when they happen they are just a symptom of the overburdened criminal justice system.  Police and prosecutors are pressed to close cases quickly, so shortcuts are taken and tolerated.

I’d limit any person under a sentence of death to one round of appeals, preceded by an automatic review by a court or judge not previously involved in the case.  After that, any new appeal must be filed with sufficient evidence to show that there is new evidence questioning the defendant’s guilt.  Further, all appeals should be required to be heard within a specific amount of time, or explicitly rejected without hearing.

Finally, there should be a strict limit on outsiders filing appeals or briefs as part of a campaign against capital punishment.