What Is Capital Murder?

Police tape at a capital murder crime scene.

When we see the words “capital murder” or “capital felony” in the news, we certainly know that this means that the crime was very serious, but what exactly is capital murder? Capital murder is a charge in criminal law for the killing of another human being for which, if found guilty beyond a reasonable doubt, the defendant will receive the highest of all possible punishments. In every state, that is, a life sentence, and in some states, that also includes the death penalty. However, not all murder is capital murder. Murder can only rise to the level of capital murder based on 1. The circumstances of the murder, in particular, if it was done in a heinous or cruel way or was paid for, 2. if the murder was committed in conjunction with another serious crime, or 3. depending on the age, status, and/or the number of victims.


What Is Capital Murder?

First, to understand what capital murder is, we must first look at what murder is. While the elements vary slightly from state to state, most definitions of murder are very similar. Murder is typically defined as the 1. premeditated and 2. intentional killing of another person.

  1. Premeditation means that the murder was pre-planned in advance, and in some jurisdictions, even just a few minutes or seconds of planning will do.
  2. Intentional means the killer intended for the victim to die, or they committed a dangerous act that could cause serious bodily injury.

Once the elements of murder are satisfied, there are then three main ways in which a murder charge can be elevated to a capital crime.

The first way murder can rise to the level of a capital offense relates to the context or circumstances of the murder, i.e., whether the commission of the murder was particularly callous or egregious. In many states, this is referred to as an aggravating factor. For example, if the victim was tortured in a particularly cruel fashion before they were killed, this “aggravating factor,” once proven beyond a reasonable doubt, would elevate the murder charge to capital murder. Another circumstance where a murder can lead to it being a capital crime is if the murder was for hire, meaning someone paid to have another person killed.

The second way to increase a murder charge to capital murder is if the murder occurs during the commission of another violent crime, specifically a serious and dangerous felony such as kidnapping, robbery, rape, sodomy, burglary, or arson. An example of this would be the offender planning to break into the victim’s home, sexually assault the victim, and then kill the victim. In that case, the state could charge the defendant with capital murder because they killed the victim in conjunction with the commission of two other serious felonies—burglary and sexual assault. Other types of felonies include obstruction of justice, terrorist threats or terrorist activity, and escape from incarceration. If someone is murdered during the commission of any of these crimes, then the defendant can be charged with capital murder.

Finally, the third way to elevate murder to capital murder is based on the victim. For one, if there are multiple victims, in some jurisdictions as few as two, this can increase a murder charge to capital murder. Examples of this would include serial killers, gang killings, and mass shootings. Another factor is if, in the state statute, the victim is defined as being part of a special group or having a special status. In most states, this includes police officers, corrections officers, firefighters, military personnel, judges, prosecutors, and oftentimes, children under the age of 10 or 12.


Other Types Of Murder Charges

Group of yellow crime scene evidence markers on the street after a shooting.


Murder is one of two types of criminal homicide, the other being manslaughter. While in each state’s penal code, murder and manslaughter may be defined differently, generally speaking, these are the other types of murder charges:


— Felony Murder

Felony murder is when the murder was committed with another felony offense, such as rape, kidnapping, robbery, or arson. For example, the offender decides to commit arson by burning down an old abandoned building. What they didn’t know was that at the time, someone was inside the building and died. They could be charged with felony murder for causing that person’s death.

— First Degree Murder

First-degree murder is the most serious of all types of homicide. For first-degree murder, the killer intentionally caused the death of another person and did so with malice aforethought. Malice aforethought is the legal term for premeditating, or pre-planning, the intended death of another. Some states have also expanded malicious aforethought to include: intentional infliction of bodily harm that causes the victim’s death and behavior that shows an extreme, reckless disregard for life and results in the victim’s death.

— Second Degree Murder

In states that recognize second-degree murder, it is first-degree murder without the element of premeditation. This means that the killer still had the deliberate intent to kill the victim but that they didn’t have time to plan it out. Malicious intent is often proven through the actions of the murderer.

— Manslaughter

Manslaughter is the killing of another without intent or premeditation. It is often divided into two categories based on whether it was an intentional killing that took place in the heat of the moment, i.e., voluntary manslaughter, or an unintentional killing that took place due to the killer’s reckless disregard for human life, i.e.,involuntary manslaughter.


Examples Of Capital Murder

The determination of whether a killing is a murder, capital murder, or something else is very much based on the facts and circumstances of the case.

Imagine two criminals decide to rob a bank, and after the robbery, they speed away in their getaway car, running a red light. At the intersection, they cause an accident, and one of the drivers is killed. This would be an example of felony murder because the killing happened during the commission of a felony, but not capital murder because the robbers did not have the intent to cause the death of another.

However, in some states, the jury could find that the robbers’ dangerous activity of speeding down a busy street through a red light could be considered an extreme, reckless disregard for life and would constitute capital murder.

And, if more than one person died in the accident, depending on how many victims there were, in some states, this would also elevate the murder to a capital offense.

Now, let’s change the circumstances a bit and say that during the bank robbery, in which the robbers are armed, one of the robbers intentionally shoots a bystander. Not only would they be charged with a capital crime, but their co-robber, who did not shoot, would also be guilty of felony murder.

Finally, instead of shooting a bystander, let’s say the robber shoots and kills a law enforcement officer. Regardless of whether the shooting was intentional or not, because of the officer’s status, the robber has committed capital murder.


Possible Defenses To Capital Murder Charges


The first line of defense against a capital murder charge is to argue that the killing was justified or excusable. This would mean that although it was a homicide, it was not an illegal or criminal homicide. The most common example of this would be to argue that you were acting in self-defense. If you had to defend yourself or another person against an attacker, and the attacker died, then although you have committed a homicide — the act of killing — you would not be guilty of a crime.

Another option many criminal defense lawyers take if their client is charged with capital murder is to attack the aggravating factor that elevated the charges to a capital crime in order to have the charges reduced to murder or even manslaughter. This would mean they’d show in court that the prosecution failed to meet the additional element, such as proving the killing was not committed in a cruel manner, that there was not another underlying felony offense committed at the time of the killing, or that the victim did not fall under the special victims’ category.

If you are accused of or charged with capital murder, seek legal advice from a criminal defense attorney in your state to find out more.


Punishment For Capital Murder

a prison cell block and prison bars.

What really distinguishes capital murder from other homicides is capital punishment. Capital murder is the only crime in criminal law for which the state can impose the death penalty. More than half (27 states) have the death sentence for a capital felony conviction. They are Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming.

A death sentence means that the defendant is first sentenced to death row. Following a series of appeals, which can take several years, the death row inmate would be sentenced to death. In most states, the standard method of execution is lethal injection, in which the inmate is injected with drugs that cause immediate death. In some states, other methods are available, including death by firing squad, hanging, gas chamber, or electrocution.

However, death is not the only possible punishment for capital murder, and capital punishment varies from state to state. For example, in California, the punishment for capital murder is life in prison without the possibility of parole or the death penalty. In Texas, the penalty for capital murder can range from 99 years in prison plus a $10,000 fine to the death sentence.

Twenty-three states and the District of Columbia have abolished the death penalty altogether: Alaska, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, Virginia, Washington, West Virginia, and Wisconsin. This means the most serious punishment in those states is life imprisonment.


The Bottom Line

Capital murder is murder—the intentional and premeditated killing of another person—with an additional element to the crime that increases the punishment to capital punishment, i.e., the death penalty or a life sentence. One such element would be that there was an aggravating factor to the murder, such as it was particularly egregious or it was a murder for hire. Another element could be that the murder was committed in conjunction with the commission of a serious crime, such as kidnapping, aggravated sexual assault, or robbery. Finally, if there were multiple victims or if the victim had a special status because of their job or years of age, this could also increase a murder charge to a capital offense.


Frequently Asked Questions


What is the difference between capital murder and first-degree murder?

The difference between capital murder and first-degree murder is that the killing in a capital murder case has an additional factor or circumstance for which the punishment is more severe. Basically, capital murder is first-degree murder plus one of these additional elements: 1. The murder was either extremely callous and cruel or 2. The murder was committed during the commission of another serious felony offense, or 3. There were multiple victims, the victim was a child under a certain age, or the victim was a peace officer or fireman.


What is the penalty for a capital murder charge?

The penalty for a capital murder charge is the most serious punishment available in the criminal justice system. In every state that is life imprisonment without parole, and in just over half of the states, that also includes the death penalty. The death penalty is the execution of a convicted murderer by, most commonly, lethal injection. Some states also offer death by firing squad, death by hanging, death by gas chamber, or death by electrocution.


How much does a defense attorney cost for a capital murder charge?

Capital murder is considered the most serious of all criminal charges. Therefore, the cost of a defense attorney for a capital murder charge can be very high. Additionally, anyone who is convicted of a capital murder for which the death penalty is imposed has the legal right to an appeal, and the appeals process can be very lengthy and expensive. While the exact cost varies from state to state, it is important to note that most defense firms allow for a free consultation. During this consultation, you can find out the exact figures. Also, every defendant in the United States has the legal right to counsel. Therefore, if you cannot afford a criminal defense lawyer, you will be appointed a public defender who will take your case for free.