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Capital Punishment laws - Information on the law about Capital Punishment

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The acceptance of capital punishment, or the death penalty, as a sentence for heinous criminal acts has been hotly debated across the nation over the last few decades. On the books in most states, the death penalty has been challenged by many, originally on grounds that it violated the Constitutional prohibition against cruel and unusual punishment, and later on the procedural grounds that there were not enough due process protections for defendants accused of capital crimes. In general, it was held that since the sentence was so severe, the law must impose the strictest standards of proof to sentence a defendant to death. Consequently, many states have gone through periods in which the death penalty was held as legal, then illegal, then revised and held as legal, then illegal again, and then further revised and held as legal once more. This shifting status often brought unbalanced—unjust—sentencing. For instance, in many of these states one of two defendants accused of identical unrelated crimes committed within weeks of each other drew the death sentence while the other did not, merely because the statute under which they were sentenced was ruled unconstitutional in the intervening time.

The Supreme Court has since handed down explicit guidelines defining the legal imposition of the death penalty, allowing states a new opportunity to legislate a legal death penalty statute that is less likely to be ruled unconstitutional in the future. This does not mean that the process is not still open to attack. As of this writing, new cases on the death penalty are currently wending their way through the courts to the Supreme Court.

Thirty-eight states currently have death penalty statutes on the books. In a few states, the statute remains on the books though it has been declared unconstitutional. In some of these cases, the state legislature can either revise or rewrite the death penalty statute if it chooses to make it the law.

There are twelve states that authorize the death penalty for non-homicide crimes. Of note is California, often known for its radical politics, which lists treason as a capital crime. Other common non-homicide capital offenses are kidnapping, hijacking, and other serious crimes that involve hostage-taking or placing a victim in extreme danger.

In the last few years, the method of execution has become the most controversial element of death penalty statutes. Four states have changed their method of execution. While three states, Kentucky, New York, and Ohio, have changed from electrocution to lethal injection, one state, Georgia, has changed from lethal injection to electrocution. Recent and pending court decisions may influence additional states to alter their prescribed methods of execution.

Some states have very complicated criminal statutes; therefore, the following tables may contain less information on some states if nothing explicit can be determined from the state statute alone. Occasionally it is necessary to consult lists or sentencing guidelines that are not part of the code to determine these rules.

Table 6: Capital Punishment

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
ALABAMA 13A-5-39, et seq. Yes Mitigating circumstance if defendant under influence of extreme mental or emotional disturbance; forbid execution of "insane" person No minimum age but age is a mitigating circumstance None Homicide during the commission of kidnapping; robbery; rape/sodomy; burglary; sexual abuse; arson; hijacking; murder of police officer or public official while on duty or when related to or caused by or is related to his official position, act, or capacity; murder for pecuniary or other valuable consideration; two or more persons murdered in same act/course of conduct; victim less than 14 years old; murder under life sentence; murder during arson or by means of explosives; murder by defendant who has previously been convicted of murder within 20 years; murder of witness in civil or criminal trial when murder is caused by or related to the testimony; murder during act of unlawfully assuming control of any aircraft; murder when deadly weapon is fired outside of a dwelling when victim is in dwelling; murder by deadly weapon used from or within a vehicle. Electrocution
ALASKA 12.55.015 Not authorized          
ARIZONA 13-703 Yes, for 1st degree murder with mitigating factors Considered mitigating circumstance 15 None Previous capital convictions or homicides; previous conviction of a "serious offense"; previous felonies with use or threat of violence; knowingly created grave risk of death to persons in addition to victim; procured commission of offense by payment; especially heinous, cruel or depraved manner; adult person and victim under 15 or over 70; victim on duty peace officer and defendant knew or should have known; in custody of state dept. of corrections, law enforcement agency or jail at time of homicide Lethal injection. If defendant is convicted for crime committed prior to November 23, 1992, s/he shall choose between lethal gas or lethal injection.

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
ARKANSAS 5-4-601, et seq.; 5-51-201 Yes, capital murder If no aggravating circumstances are found or if mitigating circumstances outweigh aggravating circumstances, the court shall impose life in prison without parole; no defendant with mental retardation at the time of committing murder shall be sentenced to death Chronological age does not necessarily control jury's determination (Giles v. Statz 549 S.W. 2d 479 (1977)) Treason Homicide committed by a person incarcerated for felony conviction; committed by person unlawfully at liberty after being imprisoned for felony conviction; use of threat or violence in commission of felony; knowingly created grave risk of death to person other than victim or caused the death of more than one person in the same criminal episode; committed in order to prevent arrest or escape custody; committed for pecuniary gain; committed for purposes of disrupting/hindering lawful exercise of any government or political function; especially cruel or depraved manner by use of torture or methods evidencing the defendant's pleasure in committing the murder; committed by means of destructive explosive, bomb, similar device Lethal injection or electrocution if lethal injection held unconstitutional

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
CALIFORNIA Pen. Code §§37; 190, et seq.;§§3604, et seq.; §§3700, et seq. Yes, if crime is 1st degree murder with enumerated special circumstances If defendant found insane at any time prior to execution, the execution is suspended. Upon recovery, execution is rescheduled 18 Treason Murder committed for financial gain; previously convicted of first/second degree murder; multiple murders in same proceeding; bomb, explosives, grave risk; for purposes of avoiding lawful arrest or attempt to escape lawful custody; murder intentional and involved the infliction of torture; intentional killing of peace officer, federal law officer/agent, fireman in performance of duties, and defendant should have known or knew official status of victim; victim was a juror in any court of record in local, state, or federal system in any state and the murder was intentionally carried out in retaliation or prevention of the victim's official duties; the murder was intentional and perpetrated by means of a firearm being discharged from a motor vehicle intentionally at another outside the vehicle with intent to kill; witness of crime intentionally killed to prevent retaliatory testimony at criminal proceeding; retaliation against judge or former judge of this state or any other state, prosecutor, etc.; state officials or officials of any local government of this state or any other state for reasons relating to their office; lying in wait; especially cruel, atrocious, heinous; racial; committed along with robbery, kidnapping, rape, sodomy, oral copulation, burglary, performance of a lewd act upon a child under the age of 14; arson, train wrecking; carjacking; intentionally poisoned; mayhem; rape by instrument; member of a street gang murdering to further activities of the gang Lethal gas or lethal injection, but if defendant fails to choose, lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
COLORADO 8-3-101, et seq; 18-3-301, et seq; 18-1.3-1201 et seq. Yes for Class 1 felonies Mitigating factor; suspend sentence; if "mentally retarded" then sentenced to life in prison. Age is mitigating factor; no one under 18 (Sullivan v. People, 111 Colo. 205, 139 P.2d 876 (1943)) First degree kidnapping if victim has been injured, but defendant will not be sentenced to death if victim is liberated alive prior to the conviction of kidnapper. Treason. Murder committed by person imprisoned for Class 1, 2 or 3 felony; previous crime of violence; intentionally killed peace officer/former peace officer, judge, firefighter, elected official, federal officer he knew or should have known to be engaged in official duties or retaliation for past official duties; kidnapped person intentionally killed; agreement to kill; explosives or incendiary device; pecuniary gain; heinous or cruel; hate crime; victim was under 12; defendant killed 1 or more persons in the same episode; defendant killed victim knowing she was pregnant. Lethal injection
CONNECTICUT 53a-46a; 53a-54b; 54-100, et seq. Yes, capital felony Suspend sentence 18 None Murder committed in commission of felony; 2 or more prior felonies involving infliction of serious bodily injury; knowingly created grave risk of death to other persons; murder of a police officer, chief inspector in criminal justice, constable performing criminal law duties, special police; especially heinous, cruel, depraved manner; committed for pecuniary gain; murder committed by a kidnapper of kidnap victim either during abduction or before victim can be returned to safety; seller of illegal narcotic if purchaser dies as a result of use of narcotic; murder of person under 16; during commission of 1st degree sex assault; murder of 2 or more persons at the same time or in the course of a single transaction; murder committed by one who was under sentence of life imprisonment at time of murder Lethal injection by a continuous intravenous injection of a substance or substances sufficient to cause death

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
DELAWARE Tit. 11, §§636, 4209; §406 Yes Exempt from execution while incapacitated No minimum age None Murder committed while in or escaped from custody/confinement; committed for purposes of avoiding/preventing arrest or for effecting escape from custody; committed against law enforcement officer, corrections employee, fireman engaged in duties; committed against judge, attorney general, other state officer (former or present) during or because of exercise of official duty; hostage/ransom; witness to crime to avoid testimony; paid for it/pecuniary gain; convicted of prior felony using or threat of violence; rape, sodomy, unlawful sexual intercourse, arson, kidnapping, burglary; multiple victims; outrageously or wantonly vile, horrible or inhumane treatment involving torture, depravity of mind or use of explosive device or poison; agent or employee of another person; defendant serving life sentence; victim was pregnant, handicapped, severely disabled or 62 years of age or older; child 14 years or younger and murderer was 4 years older; present or past nongovernment informant or provided information and killed in retaliation; murder was premeditated and result of substantial planning; or murder committed for purpose of interfering with victim's exercise of a constitutional right protected by the first amendment or because of the victim's race, religion, national origin, or disability Lethal injection
DISTRICT OF COLUMBIA 22-2404 No          

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
FLORIDA 775.082, 782.04(1); 921.141; 922.07; 922.10 et seq.; 921.142; 922.08 Yes Exempt from execution if insane or pregnant for duration of condition No minimum age May apply to capital drug trafficking Capital felony committed by person serving sentence of imprisonment or under community control; previous capital felony or felony using or threat of violence; knowingly created great risk of death to many persons; the capital felony was committed while defendant was engaged in, was an accomplice, in commission of or attempt to commit or flight after committing or attempt to commit any robbery, sexual battery, aggravated child abuse, aggravated abuse of a disabled or elderly person, aggravated stalking, carjacking, arson, burglary, kidnapping, aircraft piracy, unlawful throwing, placing, or discharging of a destructive device or bombings; capital felony for purposes of avoiding lawful arrest or effecting escape from custody; capital felony for pecuniary gain; capital felony to hinder lawful exercise of governmental function or enforcement of laws; capital felony especially heinous, atrocious or cruel; premeditated homicide; victim of capital felony was public official or law enforcement officer engaged in official duties; victim of capital murder was less than 12 years old; criminal felony committed by a criminal street gang member. Lethal injection, unless person sentenced to death elects for electrocution; if either or both found to be unconstitutional, then by any constitutional method

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
GEORGIA 17-10-30, et seq. Yes Suspend sentence; shall not be executed; if pregnant, time period after no longer pregnant 17 Aircraft hijacking or treason in any case Murder, rape, armed robbery, kidnapping committed by person with prior record of conviction for capital felony; murder, rape, armed robbery, kidnapping committed while engaged in commission of other capital felony; knowingly created grave risk of death to multiple persons in public place by use of weapon/device; murder committed for financial gain; judicial officer, district attorney or solicitor (or formers) because of exercise of duties; committed as agent of another; outrageously or wantonly vile, horrible or inhuman; against peace officer, corrections officer, fireman while performing duties; offender escaped from lawful custody/confinement; avoiding lawful arrest Electrocution
HAWAII 706-656 No          

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
IDAHO 18-4001, et seq.; 19-2515, et seq.; 19-2701, et seq. Yes If as result of mortal disease or defect a person lacks capacity to understand proceedings against him, he cannot be tried, convicted, sentenced or punished so long as incapacity endures; if pregnant, time period after no longer pregnant. No minimum age Kidnapping in the 1st degree unless prior to imposition of sentence victim is liberated unharmed Murder committed by person guilty of a previous conviction of another murder; knowingly created great risk of death; committed for remuneration; especially heinous, atrocious or cruel; circumstances show utter disregard for human life; murder of 1st degree with specific intent to cause death; propensity to commit murder, i.e., a continuing threat to society; murder of former/present peace officer, judicial officer, executive officer, officer of the court, fireman, prosecuting attorney for reasons relating to the performance of their official duties; murder of witness in criminal or civil proceeding; murder committed during perpetration of arson, rape, robbery, burglary, kidnapping or mayhem and defendant killed, intended to kill, or acted with reckless indifference to human life; murder while escaping or attempting to escape from a penal institution Lethal injection; firing squad if lethal injection not possible

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
ILLINOIS 720 ILCS 5/9-1, et seq; 720 ILCS 5/10-2; 720 ILCS 5/30-1; 725 ILCS 5/119-5; 730 ILCS 5/5-5-3 Yes Mitigating factor 18 Treason First degree murder committed upon a peace officer or fireman in the performance of his duties; an employee of the Department of Corrections in the performance of his duties; an inmate in a correctional facility or otherwise was present in the facility with the approval of the prison administration; murder involves more than one victim; committed during hijacking of airplane, train, ship, bus, or other public conveyance; committed for financial gain; committed during robbery, stalking, burglary, arson, kidnapping, drug conspiracy, sexual assault; victim was under 12; murder of witness in order to prevent victim from testifying against defendant; while defendant was incarcerated and was committing any other offense punishable under IL law as a felony; victim was an emergency medical technician; murder involving torture; committed by using firearm in motor vehicle with victim outside of vehicle; victim over 60; victim disabled; victim was teacher murdered at school; victim under order of protection from defendant; in connection with or as a result of the offense of terrorism Lethal injection or, if lethal injection held illegal or unconstitutional, electrocution

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
INDIANA 35-50-2-3; 35-50-2-9; 35-38-6-1, et seq. Yes Hearing to determine whether defendant has ability to understand proceedings; if ability lacking, court can delay or continue trial; may not impose death sentence if determined mentally retarded 18 None Intentional murder while committing/attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, robbery, carjacking, criminal gang activity dealing in cocaine or narcotic drug; unlawful detonation of explosive with intent to injure; lying in wait; hiring or hired to kill; victim was law enforcement officer, etc.; another conviction of murder; under sentence of life imprisonment and time; victim dismembered; victim less than 12 years old; victim was witness against defendant; has committed another murder at any time regardless of whether convicted; committed murder by firing into an inhabited dwelling or from a vehicle; victim of murder was pregnant and murder resulted in intentional killing of a viable fetus; victim was burned, mutilated or tortured while victim was still alive Lethal injection
IOWA 902.1 No          
KANSAS 21-3401; 21-3436; 21-3439, 21-4624 et seq.; 22-4001 Yes Suspend sentence 18 None Murder committed in the commission of, attempt to commit, or in flight from an inherently dangerous felony, including: kidnapping, robbery, rape, burglary, theft, child abuse, sodomy, arson, treason; murder committed for hire or hiring one to commit murder; murder committed while defendant is in custody of correctional institution; murder of law enforcement officer; of multiple persons; of child under 14 in commission of kidnapping Lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
KENTUCKY 431.220; 431.240; 532.025; 640.040; 509.040 Yes Execution suspended if person is insane or pregnant with child until restored to sanity or delivered of child 16 Kidnapping if victim not released alive or dies later or caused by kidnapping Prior capital offense conviction; substantial history of serious assaultive criminal convictions while committing arson, robbery, burglary, rape, sodomy; knowingly created great risk of death to more than 1 person in a public place; for remuneration; intentional and resulted in multiple deaths; intentional and victim state or local official or police officer in performance of duties; victim had protective order against defendant Lethal injection; if received death penalty prior to March 31, 1998, choice between electrocution or lethal injection, lethal injection is default method
LOUISIANA 14:30, et seq.; 14:113; 15:567, et seq. Yes If woman defendant is found to be pregnant, execution is stayed until 90-120 days from end of pregnancy; a person may not be executed while suffering from mental illness No minimum age Treason Murder committed during commission of aggravated rape, forcible rape; aggravated kidnapping; aggravated burglary; aggravated arson; drive-by shooting; aggravated escape; armed robbery or simple robbery or first degree robbery victim was fireman or police officer engaged in lawful duties; previous conviction of murder and other serious crimes; knowingly created a risk of death or great bodily harm to more than 1 person; for remuneration; especially heinous, atrocious or cruel; victim under age of 12 years or over 65 years; distribution, etc. of a controlled dangerous substance; victim was witness against defendant Lethal injection
MAINE Tit. 17A §§1251, 1152 No          

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
MARYLAND Art. 27 §§71, 75, 412, 413, 627 Yes Execution of incompetent prohibited; not allowed against mentally retarded at time of murder and retardation manifested before age 22 18 None Victim was law enforcement officer on duty; defendant was confined to correctional institution; escaped/attempted to escape lawful custody, evade arrest, or detention; kidnapping; child abduction; for remuneration; while under death or life sentence; more than one murder in first degree arising from same incident; while committing/attempting to commit robbery, arson, carjacking, rape, sexual offense Lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
MASSACHUSETTS Ch. 279 §§57-71 No; statutes still on books but Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116 (1984) said state statute violates state constitution Suspend sentence if insane or pregnant No minimum age None Victim was police officer, special police officer, state or federal law enforcement officer, officer or employee of the department of corrections, sheriff's department, fireman, etc. acting in official duty; while defendant incarcerated; victim was judge, prosecuting attorney, juror or witness in official duty; previous murder conviction or of an offense in any federal state or territorial jurisdiction of the U.S. which is the same or necessarily includes the elements of an offense of murder in 1st degree; for hire; to avoid arrest, while escaping; involved torture or infliction of extreme pain; course of conduct-killing or serious injury to more than one person; explosive device; while rape, rape of a child, assault on a child, indecent assault and battery on a child under 14 years old, assault with intent to rape, assault on a 16-year-old with intent to rape; assault and battery, kidnapping, kidnapping for ransom; breaking and entering with intent to commit a felony, armed assault in a dwelling, confining or putting in fear or harming for purpose of stealing from depositories; murder occurred while in defendant in possession of a sawed-off shotgun or machine gun; robbery, arson, etc. Electrocution or at election of prisoner, lethal injection
MICHIGAN Const. Art. 4 §46; §750.316 No          
MINNESOTA 609.10; 609.185; 1911 Minn. Laws Ch. 387 No          

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
MISSISSIPPI 97-3-21; 97-7-67; 97-25-55; 99-19-51, et seq.; 99-19-101 et seq. Yes Suspend sentence if insane or pregnant No minimum age Treason; aircraft piracy Murder committed while under sentence of imprisonment; previous conviction of another capital offense or felony involving violence; knowingly created great risk of death to many persons; while committing/attempting to commit robbery, rape, arson, burglary, kidnapping, aircraft piracy; sexual battery, unnatural intercourse with child under 12 years, nonconsensual unnatural intercourse with mankind, battery of child, unlawful detonation of explosives; avoiding/preventing arrest or escape from custody; for pecuniary gain; disrupt/hinder lawful exercise or enforcement of laws; heinous, atrocious or cruelty Lethal injection; lethal gas if lethal injection held unconstitutional

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
MISSOURI 546.720; 552.060; 565.020; 565.032; 562.051; 576.070; 195.214 Yes Sentence is suspended until certified as free of mental disease or defect 16 None Murder committed by one with prior conviction for murder in 1st degree or multiple assaultive convictions; while committing or attempting to commit another homicide; knowingly created great risk of death to more than 1 person; for monetary value; victim was judicial or former judicial officer, present or former prosecuting attorney or assistant prosecuting attorney, assistant circuit attorney, peace officer, elected official during or because of the exercise of official business/duty; for hire; outrageously or wantonly vile, horrible or inhuman; while escaping, avoiding, or awaiting arrest; engaged in rape, sodomy, burglary, robbery, kidnapping or any felony offense; victim was witness or potential witness; victim was employee of correctional system in course of duty; victim was an inmate of correctional facility/institution; hijacking; to conceal or prevent prosecution of a felony offense; to prevent victim from initiating/aiding prosecution; murder was commission of a crime which is part of a pattern of criminal street gang activity Lethal gas or lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
MONTANA 45-5-102; 46-18-220; 46-18-301, et seq.; 46-19-101,et seq.; 46-19-201, et seq. Yes If defendant is found to be mentally unfit, sentence is suspended, but if fitness is regained, execution must be carried out unless so much time has elapsed that it would be unjust; if pregnant, suspended 18 Aggravated assault or aggravated kidnapping while incarcerated at state prison by person previously convicted for murder or persistent felony offender Murder committed while currently serving sentence of imprisonment; previous murder conviction; committed by torture; lying in wait or ambush; part of scheme or operation which would result in death of more than 1 person; victim was peace officer performing duty; aggravated kidnapping; while incarcerated at state prison by person previously convicted of murder or persistent felony offender; while committing sexual assault, sexual intercourse without consent, deviate sexual conduct or incest and victim less than 18 years Lethal injection
NEBRASKA 28-105, et seq.; 28-303; 29-2519, et seq. Yes If woman convict is found to be pregnant, execution is suspended until she is no longer pregnant; if convict is determined to be mentally incompetent, execution is suspended until competency is restored; not against any person with mental retardation 18 at time of crime None Previous felony conviction involving of violence; multiple victims; for hire, pecuniary gain; defendant hired another to commit murder for defendant; law enforcement official or public servant with custody of defendant; committed to hinder lawful exercise of governmental function or enforcement of laws; to conceal crime or identity of person committing crime; offender should have known victim was public servant; especially heinous, atrocious, cruel; created great risk of death to at least several persons Electrocution

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
NEVADA 176.025; 176.345, et seq.; 176.415, et seq.; 200.030, et seq. Yes Suspend sentence when defendant is found insane or pregnant 16 None First degree murder and murder of multiple victims (random, no motive); involved torture; peace officer or fireman engaged in official duties; for remuneration; avoid lawful arrest or effect escape from custody; connection with robbery, sexual assault, arson, burglary, kidnapping; knowingly created great risk of death to more than one person other than the victim; previous murder/felony convictions involving use/threat of violence; offender serving sentence; victim was less than 14 years old; murder committed because of victim's race, religion, or ethnic background Lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
NEW HAMPSHIRE 630:1, et seq. Yes Exempt from execution if pregnant 17 None Intentional murder or infliction of serious bodily injury leading to death; committed by a person already in prison; already convicted of murder; defendant previously been convicted of 2 or more state or federal crimes punishable by terms of imprisonment of more than one year on different occasions involving crimes upon a person or distribution of controlled substances; defendant created grave risk of death to one or more persons during commission of capita murder; murder committed with premeditation and planning; especially heinous, cruel or depraved manner; for pecuniary gain; committed for purpose of escape from lawful custody; victim was particularly vulnerable due to old age, youth or infirmity; victim a law enforcement officer or judicial officer acting in line of duty or when death is caused as a consequence of or in retaliation for such person's actions in line of duty; multiple victims; while attempting to commit kidnapping Lethal injection, or hanging if lethal injection becomes impractical to carry out

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
NEW JERSEY §§2A: 4A-22; 2C:11-3; 2C:49-2 Yes Exempt from execution if mentally ill/retarded 18 None Previous murder conviction; purposely knowingly created grave risk of death to another other than victim; outrageously or wantonly vile, horrible or inhuman; for pecuniary value; defendant paid for it; purpose was to escape detection, apprehension, trial, punishment or confinement for another offense committed by defendant or another; in connection with murder, robbery, sexual assault, arson, burglary, kidnapping, carjacking; victim was public servant, relating to official duties; was leader of narcotics trafficking network and committed or committed with leader's direction in furtherance of conspiracy; homicidal act caused or risked widespread injury or damage; victim less than 14 years; murder committed during commission or attempt or flight from a terrorist act Lethal injection after sedation
NEW MEXICO 31-14-4, et seq.; 28-6-1; 31-18-14(A); 31-20A-5; 20-12-42 Yes Suspend sentence if insane or pregnant 18 Espionage Peace officer engaged in duties; connection with kidnapping, criminal sexual contact of a minor or criminal sexual penetration; attempt to escape penal institution of New Mexico; victim was employee of corrections and criminal rehabilitation, while incarcerated; incarcerated at time of offense; for hire; witness to a crime to prevent testimony, reporting of crime or in retaliation Lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
NEW YORK Penal §60.06; 125.27; Crim. Pro. §400.27; Correction Law §650 et seq. Yes; for 1st degree murder Suspend sentence if insane; if mentally retarded, life sentence without parole or term of imprisonment for class A-I felony of murder in the first degree; stay execution to extent necessary if pregnant 18 at time of crime None Victim was public officer in official duty; victim was employee of state correctional institution in official duty; defendant was under sentence for a minimum of 15 year or had escaped from confinement or custody; committed an act of terrorism; convicted of 2 class A felonies or class B violent felonies committed on different occasions in 10 year period prior to murder; victim killed to prevent being a witness; for pecuniary gain; multiple victims; defendant acted in an especially cruel or wanton manner; victim killed in furtherance of an act of terrorism Lethal injection
NORTH CAROLINA 14-17; 15A-1001, et seq.; 15A-2000; 122C-313; 15-187 Yes Exempt from execution if insane 17; no minimum age for first degree murder while serving prison sentence for prior murder or which work on escape from such sentence. None Capital felony committed by person lawfully incarcerated; previous capital felony convictions; previous felony conviction involving use/threat of violence; avoid lawful arrest or escape from custody; in connection with homicide, rape or sex offense, robbery, arson, burglary, kidnapping or aircraft piracy or bombing; for pecuniary gain; hinder lawful exercise of governmental function or enforcement of laws; victim was law enforcement officer, employee of Corrections Department jailer, fireman, judge or justice, prosecutor, juror or witness while engaged in duties or former; especially heinous, atrocious, or cruel; great risk of death to more than one person; in connection with other crimes of violence against other person(s) Lethal injection
NORTH DAKOTA Ch. 12-50 repealed by N.D. Laws Ch. 116 §41 No          

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
OHIO 2929.02, et seq.; 2949.22, et seq. Yes Suspend sentence if insane or pregnant 18 None Assassination of public official; for hire; escape detection, apprehension, trial or punishment for another offense; committed while a prisoner in detention facility; prior murder convictions or multiple victims now; victim was peace officer; rape, kidnapping, aggravated arson, aggravated robbery, aggravated burglary; witness of crime to prevent testimony or retaliation for testimony Lethal injection
OKLAHOMA Tit. 21 §§701.10, et seq.; Tit. 22 §§1005, et seq. Yes Suspend sentence if insane or pregnant No minimum age None Previous felony conviction involving use/threat of violence; knowingly created great risk of death to more than one person; for remuneration or employed another for remuneration; especially heinous, atrocious or cruel; avoiding lawful arrest or prosecution; committed while serving sentence for felony; probability of defendant being continuing threat to society; victim was a peace officer or guard Lethal injection or electrocution if lethal injection held to be unconstitutional or firing squad if both of above found to be unconstitutional
OREGON 137.080, et seq.; 137.473; 161.295, et seq.; 163.105, 163.150 Yes Prohibits death penalty 14 None In determining aggravating circumstances, court shall consider any evidence received during proceeding; presentence report; any other relevant evidence court deems trustworthy and reliable Lethal injection

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State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
PENNSYLVANIA Tit. 18 §1102; Tit. 42 §9711; Tit. 61 §3004 Yes   No minimum age None Murder of fireman, peace officer, public servant killed in performance of duties; victim was a judge of any court in unified judicial system, attorney general of Pennsylvania, deputy attorney general, district attorney/assistant district attorney, member of a general assembly, governor, lieutenant governor, auditor general, state treasurer, state law enforcement official, local law enforcement official, federal law enforcement official or person employed to assist or assisting any law enforcement official in performance of his/her duties; in defendant paid or was paid to perform the murder; the victim was a hostage being held for ransom; during an aircraft hijacking; victim was prosecution witness to prevent testimony; during perpetration of a felony; knowingly created grave risk of death to another in addition to victim; torture; significant history of felony convictions involving use/threat of violence; previous life sentence or death; defendant convicted of voluntary manslaughter either before or at time of killing; defendant committed the killing or was accomplice in killing; committed during perpetration of a felony under the Controlled Substance, Drug, Device & Cosmetic Act; victim was or had been in competition with defendant in the sale, manufacture, distribution or delivery of any controlled substance, counterfeit controlled substance, etc.; victim was under 12; victim was known to defendant to be in her third trimester of pregnancy; at the time of killing, victim was or had been a non-governmental informant; defendant was under court order restricting defendant's behavior toward the victim Lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
RHODE ISLAND 11-23-2 No          
SOUTH CAROLINA 16-3-10, et seq.; 24-3-530; 44-23-210, et seq. Yes A female who is pregnant may not be executed until 9 months after she is no longer pregnant; defendants capacity to appreciate conduct is a mitigating circumstance No minimum age; under 18 is a mitigating circumstance None Murder in connection with any criminal sexual conduct, kidnapping, burglary, armed robbery, larceny with use of deadly weapon, poison, drug trafficking, physical torture during commission of a drug trafficking felony; prior murder conviction; dismemberment of a person; knowingly created great risk of death to multiple persons in public place; for money or monetary value; judicial officer, solicitor, or other officer of the court (or formers) because of exercise of duties; agent/employee of another; law enforcement officer, peace officer, correction employees, fireman (or formers) related to duty; family members of abovementioned; multiple victims; victim is a child 11 or under; killing of a witness; killing by mob, lynching; killing during a duel Electrocution or lethal injection, at the election of the defendant, but if lethal injection is held unconstitutional, then electrocution; if election is waived, then lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
SOUTH DAKOTA 22-16-4; 23A-27A-1, et seq. Yes Sentence suspended during period of mental incompetency or while defendant is pregnant. In event of pregnancy, execution may be carried out not less than 30 days nor more than 90 days from date of new warrant from the governor appointing the execution; life sentence without parole if mentally retarded at time of crime and was mentally retarded before age 18 No minimum age   Prior felony convictions, class A/B felony/serious assaultive criminal convictions; knowingly created great risk of death to others; for the benefit of the defendant or another; for the purpose of receiving money or any other thing of monetary value; for remuneration or as agent/employee of another; members of criminal justice system (judge, attorneys) related to their exercise of duties; outrageously or wantonly vile, horrible or inhuman; law officer, corrections employee, fireman while engaged in performance of official duties; offender escaped from lawful custody/confinement; avoiding lawful arrest of himself or another; in connection with distributing, manufacturing or dispensing illegal substances; testimony regarding impact of crime on victim's family; if victim is less than 13 years old Lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
TENNESSEE 39-13-201, et seq.; 37-1-102; 40-23-114 Yes Prohibited for mentally retarded 18   Offender over 18, victim under 12; previous felony convictions; great risk of death to multiple persons other than victim; employed or done for remuneration; especially heinous, atrocious or cruel; avoiding lawful arrest of defendant or another; in connection with any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aircraft piracy, bombing; committed while in lawful custody/confinement or escape from; committed against law enforcement officer, corrections person, firefighter engaged in duties, also judge, attorney general, district attorney, etc. (and formers) due to performance of duties; against elected official; "mass" murderer; mutilation of victim's body; victim was 70 or older or victim was particularly vulnerable due to disability; committed in course of terrorism Lethal injection unless offense committed prior to January 1 1999, then may elect for electrocution
TEXAS Pen. 12.31, 19.03, 8.07; CCrP 37.071, 43.14 Yes Exempt from execution 17   Victim is peace officer or fireman in official duty; while committing/attempting to commit kidnapping, burglary, robbery, aggravated sexual assault or arson; obstruction; retaliation; for remuneration or employs another; while escaping; incarcerated and victim is employee or inmate; murder more than one person during same criminal transaction or scheme or course of conduct; victim under 6 years Lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
UTAH 77-15-1; 77-19-13; 77-18-5.5; 76-3-206, et seq.; 76-5-202 Yes If defendant is found incompetent or pregnant, sentence is suspended until competency returns or person is no longer pregnant, at which time sentence is reimposed and to be carried out within 30-60 days No minimum age   Offender confined in jail or other correctional facility; multiple murders; knowingly creates great risk of death to person other than victim; in connection with aggravated robbery, robbery, rape, rape of child, object rape, object rape of child, forcible sodomy, sodomy upon child, sexual abuse of child, child abuse of child under 14, aggravated sex assault, aggravated arson, arson, burglary, kidnapping; avoiding lawful arrest; pecuniary or other personal gain; contracted; previously convicted of murder or felony involving use/threat of violence; purpose of preventing witness from testifying in criminal procedure or person from offering evidence or hindering lawful governmental function or enforcement of laws; official or candidate for public office, homicide based on/related to official position; firefighter, peace officer, law officer or anyone involved in criminal justice system; bombs; in connection with unlawful control of aircraft, train, other public conveyance; poison; hostage/ransom; homicide especially heinous, atrocious, cruel or depraved manner Defendant at time of execution may select either firing squad or lethal injection. If s/he does not select, then lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
VERMONT Tit. 13 §§7101, et seq. No. Vermont has death penalty statute but it has never been amended to conform to Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972); hence constitutionally invalid.         Electrocution
VIRGINIA 18.2-10; 18.2-17; 18.2-31; 19.2-167, et seq.; 53.1-233, 19.2-264.2, et seq. Yes Cannot stand trial for criminal offense if insane 16   Capital offenses include willful, deliberate, premeditated killing: In connection with abduction for extortion of money or pecuniary benefit; for hire; committed while confined to state correctional facility; armed robbery; rape, sodomy; law officer for purposes of interfering with official duties; multiple murders; victim in commission of abduction, intended to extort money or for pecuniary benefit; controlled substance; outrageously or wantonly vile, horrible or inhuman; continuing serious threat to society; willful killing of a pregnant woman by person who knows woman is pregnant; any person under 14 by a person 21 and older; act of terrorism Electrocution or by lethal injection

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
WASHINGTON 10.95.010, et seq.; 10.95.180; 9.82.01 Yes Mitigating factor; exempt from execution of mentally retarded No minimum age Treason Law enforcement officer, corrections officer or firefighter in performance of official duties; offender escaped from confinement; offender in custody as consequence of felony conviction; agreement for money or value; contracted; obtain, maintain or advance position in organization; during course of or as a result of shooting from or near a motor vehicle used as a transport; victim was member or former member of criminal justice system (judge, attorney, juror, parole officer, etc.) related to their official duties; committed to conceal crime or identity of person committing crime; multiple victims; in connection with robbery, rape, burglary, kidnapping, arson; victim was news reporter and committed to obstruct investigation, research or reporting activities; victim had court order against defendant; victim and defendant were of same household and within 5 years harassment or criminal assault had occurred 3 or more times Lethal injection or hanging at election of defendant
WEST VIRGINIA 61-11-2 (1984) No          
WISCONSIN 939.50(3)(a); 940.01 No          

Table 6: Capital Punishment—Continued

State/Code Section Allowed Effect of Incapacity Minimum Age Non-homicidal Capital Homicide Method of Execution
WYOMING 6-2-101, et seq.; 7-13-901, et seq. Yes Suspend sentence if mentally incapacitated or pregnant 16 None While under sentence, on parole/probation, after escaping detention or released on bail; previous conviction for murder in first degree or felony using violence; knowingly created great risk of death to 2 or more persons; while committing/attempting to commit aircraft piracy or unlawful discharge of bomb; while escaping or avoiding arrest; for pecuniary gain; was especially atrocious or cruel; court official in exercise of official duty; victim is less than 17 years or older than 65 years; victim especially vulnerable due to significant mental or physical disability; poses substantial and continuing threat or likely to commit acts again; while committing/attempting to commit robbery, sexual assault, arson, burglary, kidnapping Lethal injection or lethal gas if injection ruled unconstitutional
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over 6 years ago

so Utah is the only state with a firing squad?