Capital Offense

The term “capital offense” is used to describe a crime that is so serious that the death penalty may be considered an adequate punishment. One of the most common examples of a capital offense would be murder. Treason, or the betrayal of one’s country, is also considered a capital offense, and it is punishable by death. To explore this concept, consider the following capital offense definition.

Definition of Capital Offense


  1. A crime that is so severe that the death penalty is considered an appropriate form of punishment, such as murder, espionage, or treason.


1175 – 1225     Latin    (caput)

Non-Capital Offense

Non-capital offenses make up the majority of crimes that are committed in the U.S. A non-capital crime is a crime charged as a felony or misdemeanor, but not so serious as to warrant the death penalty. For instance, robbery in the U.S. is considered a non-capital offense. The list of non-capital offenses in the U.S. is far longer than the list of capital offenses. Non-capital offenses include everything from assault and fraud to sex crimes, and firearms violations.

Defendants who are convicted of a felony for a non-capital offense are sentenced to a period of imprisonment, as well as additional fines and fees. Defendants who are convicted of a misdemeanor for a non-capital offense may be sentenced to jail as well, but it is more likely they will receive probation and be ordered to pay mandatory restitution, fines, and fees. If they are sentenced to prison, the period of time that they will spend in incarceration is considerably when compared to the jail sentences that are handed down to those who are convicted of a felony.

List of Capital Offenses

In the United States, the list of capital offenses created by the government includes a total of 41 crimes that are punishable by death. Most of the crimes on the list of capital offenses involve some form of murder, from full-out genocide to individual murders committed during a kidnapping or drive-by shooting.

What constitutes a murder eligible for the death penalty varies by state, and often includes certain specific criteria, such as the commission of multiple murders, and murders preceded by torture. In addition to murderous crimes, the list also includes two crimes that aren’t directly related to murder: espionage and treason.

Capital Offense vs. Felony

A felony is a severe criminal charge, but so is a capital offense. So why don’t all felonies come with the potential for the death penalty as a sentence? There is one key difference between the two: the death of a person as the result of the defendant’s actions. For example, a capital offense, rather than a felony, is charged if someone was killed directly by the defendant and/or if the defendant had an intent to kill that person.

Felony charges are upgraded charges on a variety of different crimes. Typically, capital offenses only pertain to first-degree murder and treason. Capital punishment (the death penalty) can even be considered too severe a punishment in the states that currently practice it. The only time a defendant is more likely to be convicted of a capital offense is if his actions resulted in the death of another person (especially if he intended for that person to die, like shooting the person directly), or the betrayal of his country.

Capital Punishment in the U.S.

Capital punishment is currently used as a form of sentencing by 30 U.S. states, the government, and the military. And while the U.S. is one of 54 countries currently practicing capital punishment, it is the only Western country doing so. Here are some additional facts about capital punishment in the U.S.:

  • The U.S. was the first country to develop lethal injections as a form of execution.
  • In 1972, the Supreme Court temporarily reduced all pending death sentences to life imprisonments after the landmark case of Furman v. Georgia (more on that below).
  • Since 1976, over 7,800 defendants have been sentenced to death. Of this number, over 1,400 defendants have actually been executed.
  • The case of Furman v. Georgia concerned the issue of how juries were being instructed to deliver their verdicts at the time in criminal trials. In addition to their verdict, juries were to also simultaneously declare whether a defendant should literally get life (in prison) or death.

When the consolidated case reached the Supreme Court, the Court struck down the death penalties in the cases before them, declaring the sentencings to be unconstitutional. As a result, all pending death sentences at the time were ordered to be reduced to life imprisonment. The next day, journalists declared it “unlikely” that the death penalty would ever be issued again in the U.S.

However, rather than eradicate the death penalty, 37 states came up with new legislation to address the concerns raised by the Court in Furman v. Georgia. On July 2, 1976, the Supreme Court decided that crimes were to be decided in two phases: the guilty vs. innocent phase, and the sentencing phase. This is why there is a separate hearing for the sentencing after a person is convicted.

If, during the first phase, the defendant is found to be innocent or otherwise not guilty of first-degree murder, then he will not receive the death penalty. During the second hearing, all of the factors in the case are weighed to determine the appropriate penalty, which can include the death penalty or life in prison, with or without the option for parole. Capital punishment in the U.S. recommenced on January 17, 1977, in the state of Utah.

Capital Offense Example Involving a Robbery and Murder

An example of a capital offense can be found in the matter of Atkins v. Virginia, which was decided in 2002. Here, Daryl Atkins and William Jones robbed and abducted Eric Nesbitt from a convenience store in Virginia in August 1996. After they were only able to get $60 out of Nesbitt’s wallet, the unsatisfied pair drove him to an ATM to withdraw more money. The men then took Nesbitt to another location, where one of the men shot Nesbitt eight times, killing him. With the evidence that was gathered from Nesbitt’s car, coupled with video footage from the ATM, Atkins and Jones were found, arrested, and charged with Nesbitt’s murder.

At trial, each of the men accused the other of pulling the trigger. However, Atkins’ account of the events that lead up to Nesbitt’s death was inconsistent, and Jones testified that Atkins was the shooter. Additionally, Atkins’ cellmate testified that Atkins had confessed to him that Atkins had committed the murder. The jury decided that Jones’ account was more believable, and so Atkins was convicted of Nesbitt’s murder.

As Atkins was being sentenced, he was tested by a clinical psychologist who discovered that Atkins only had an IQ of 59. His lawyer therefore argued that Atkins should not be sentenced to death, as he was “mildly mentally retarded.” However, Atkins still received the death penalty.

Atkins appealed, and the Virginia Supreme Court upheld his conviction, but ordered a re-trial on his sentence. The prosecution argued that the crime itself, coupled with Atkins’ violent past was enough to warrant the death penalty and supersede his disability. The jury agreed, and the Virginia Supreme Court upheld his sentence.

The U.S. Supreme Court agreed to hear the case in 2002. The question the Court had to answer here was whether the death penalty in this case was a violation of the Eighth Amendment‘s prohibition on cruel and unusual punishment. Specifically, could the same justifications used to issue such a sentencing be applied to mentally challenged individuals? While these individuals might know right from wrong, they may have difficulty understanding the consequences of their actions.

Ultimately, the Court concluded that the Eighth Amendment forbids states from executing defendants who are mentally challenged, and reversed the lower Court’s ruling. Said the Court in its decision:

“Our independent evaluation of the issue reveals no reason to disagree with the judgment of ‘the legislatures that have recently addressed the matter’ and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.”

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Felony – A crime, often involving violence, regarded as more serious than a misdemeanor. Felony crimes are usually punishable by imprisonment more than one year.
  • Misdemeanor – A criminal offense less serious than a felony.
  • Parole – The release of a prisoner either temporarily or permanently before the completion of his sentence and with the promise of good behavior.