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.

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