The Death Penalty

Death penalty trials arguably are the most profound type of case that a lawyer can handle.  The concept of having the State government intentionally kill someone is a controversial and hotly debated one.

Some people feel it is wrong to intentionally kill another human being under any circumstances.  Furthermore, studies show that it often costs less to imprison a defendant for life than to go through the legal hurdles of the death penalty.  And the deterrent effect of the death penalty is questionable.  On the other hand,  the family and loved ones of victims, and society in general, have a legitimate interest in retribution and full punishment of defendants who commit the most heinous of crimes.

Although the death penalty can sometimes stir up strong emotions on both sides of the aisle, a lot of misconceptions exist about it, including when it is applied and what the legal standard is. Each State decides for itself whether or not it will permit the death penalty as a potential punishment.

California permits the death penalty.  In order to be eligible, a defendant must first be convicted of first-degree, premeditated murder with special circumstances.  In other words, not every first-degree murder will even permit consideration of the death penalty – the murder must have one or more “special circumstances.”  Examples of special circumstances  include multiple murders, murders committed in conjunction with a sexual assault, murders done for the benefit of a gang, etc.  There are quite a few “special circumstances,” so this standard isn’t necessarily that difficult to meet when dealing with a first-degree murder.

If a defendant qualifies for the death penalty, and the District Attorney decides to pursue that punishment, the trial is conducted in two phases.  The first part of the trial is the “guilt” phase.  If the defendant is not convicted of first-degree murder with one or more special circumstances in the “guilt” phase, there is no second phase.

Assuming the jury does so convict the defendant, the second part of the trial (the “penalty” phase) then occurs.  During this “penalty” phase, a jury has one question to answer: will they recommend (1) death or (2) life in prison without the possibility of parole as appropriate punishment.  The standard the jury uses to answer this question is whether the “aggravating” circumstances of the defendant’s crime and his/her background substantially outweigh the “mitigating” circumstances.  In simple terms, when everything is considered, is this defendant a really bad person.  The victims’ family may testify about the impact of the defendant’s crime upon their lives, and the jury can hear about past crimes committed by the defendant.

If the jury unanimously recommends death, the judge has the final decision of whether or not to sentence the defendant to death.  The only other alternative would be to reject the jury’s recommendation and sentence the defendant to life in prison without the possibility of parole.

Although the moral implications of the death penalty are serious, the significance of its consequences in California are less clear.  California has not actually put a defendant to death in many, many years – even though numerous ones remain on “death row.”

Although less dramatic, other laws have had far more practical consequences for many defendants and California residents.  For example, California’s “Three Strikes” law (allowing for significantly enhanced punishment for criminal recidivists who commit serious or violent felonies) has had a truly profound impact.  For more information about our State’s criminal laws, please feel free to email me at