Fundamentals of Criminal Law
Adam J. McKee, Ph.D.
Jack Brown, Ph.D.
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Capital murder is considered to be the most culpable and is eligible for the death penalty. According to various USSC decisions, it can be concluded that murders generally need some aggravating circumstance to make them death penalty eligible. Arkansas, which we will use for our exemplar statute, recognizes 10 different aggravating circumstances in the capital murder statute.
Aggravating Circumstance One
The first death penalty eligible act listed concerns deaths occurring during the commission or attempted commission of specific serious felonies:
- Terrorism (§5-54-205)
- Rape (§5-14-103)
- Kidnapping (§5-11-102)
- Vehicular Piracy (§5-11-105)
- Robbery (§5-12-103)
- Burglary (§5-39-201)
- Violations of the Uniform Controlled Substance Act (§5-64-101)
- First Degree Escape (§5-54-110)
In addition to the commission of attempt to commit the serious felony, the person must:
“In the course of and in furtherance of the felony or in immediate flight therefrom, he or she or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.”
The language “manifesting extreme indifference to the value of human life” makes it clear that an inadvertent killing in the course of a felony will not establish liability under this section. According to the Arkansas courts, “extreme indifference is established by actions that evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim.”
Aggravating Circumstance Two
This section specifies that a person who causes the death of any person (or who is an accomplice of a person causing such a death) during the commission or attempted commission of an arson is eligible for the death penalty.
Aggravating Circumstance Three
This section is designed to enhance the penalty for the murder of public servants in the line of duty. The statute specifies that if, with premeditation and deliberation, a person kills a
- law enforcement officer
- prison official
- judge or other court official
- probation officer
- parole officer
- any military personnel
- teacher or school employee
When that person is acting in the line of duty, then that person commits a capital murder.
Aggravating Circumstances Four
This section blurs the line between capital and first-degree murder by providing the death penalty for the premeditated killing of any person. The statute provides that a person is guilty of capital murder if, with the premeditated and deliberated purpose of causing the death of another person, he or she causes the death of any person.
Aggravating Circumstance Five
This section specifies that a person is guilty of capital murder if, with the premeditated and deliberated purpose of causing the death of the holder of any public office filled by election or appointment or a candidate for public office, he or she causes the death of any person.
Aggravating Circumstance Six
This section provides the death penalty for persons who, while incarcerated in the DOC or the DCC, purposely cause the death of another person after premeditation and deliberation.
Aggravating Circumstance Seven
This section provides the death penalty for killing a person pursuant to an agreement (commonly called a “contract killing”) that he or she cause the death of another person for anything of value.
Aggravating Circumstance Eight
While §5-10-101(a)(7) provides the death penalty for a contract killer, this section provides the death penalty for the person soliciting the death. To be eligible for the death penalty, the person must actually be killed.
Aggravating Circumstance Nine
This section provides the death penalty for those who kill children (persons 14 years of age or under), provided that the defendant is 18 years of age or older at the time the murder was committed.
Aggravating Circumstance Ten
This section makes “drive-by” shootings resulting in death capital murder. The statute requires that the discharging of the weapon be purposeful and that the person knows or has good reason to know that, if the target is an “occupiable structure,” the structure is occupied by a person.
The statute makes it an affirmative defense to capital murder prosecutions for an offense where the defendant was not the only participant and that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.
Capital murder is punishable by death or life imprisonment without parole.
Modification History File Created: 07/17/2018 Last Modified: 07/17/2018
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