Capital murder

Capital murder refers to a category of murder in some parts of the US for which the perpetrator is eligible for the death penalty.^[1] In its original sense, capital murder was a statutory offence of aggravated murder in Great Britain, Northern Ireland, and the Republic of Ireland, which was later adopted as a legal provision to define certain forms of aggravated murder in the United States. Some jurisdictions that provide for death as a possible punishment for murder, such as California, do not have a specific statute creating or defining a crime known as capital murder; instead, death is one of the possible sentences for certain kinds of murder.^[2] In these cases, "capital murder" is not a phrase used in the legal system but may still be used by others such as the media.

Great Britain

In Great Britain, this offence was created by section 5 of the Homicide Act 1957. Previously all murders carried the death penalty on conviction, but the 1957 Act limited the death penalty to the following cases:

• Murder in the course or furtherance of theft; s.5(1)(a)
• Murder by shooting or by causing an explosion; s.5(1)(b)
• Murder in the course or for the purpose of resisting, avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody; s.5(1)(c)
• Murder of a police officer acting in the execution of his duty, or of a person assisting a police officer so acting; s.5(1)(d)
• Murder of a prison officer acting in the execution of his duty, or of a person assisting a prison officer so acting, by a person who was a prisoner at the time when he did or was a party to the murder; s.5(1)(e).

In all other cases murder carried the mandatory penalty of imprisonment for life.

Section 1 of the Murder (Abolition of Death Penalty) Act 1965 abolished the separate category of capital murder, and all murders now carry the mandatory penalty of imprisonment for life.

China

China has became one of the most notorious executioner. China uses the firing squad, lethal injections, and the mobile death vans which has killed thousands of people every year.

China's homicide rate has dropped and about 6,522 people were murdered in 2021. Reasons for this could be that civilians are not able to own guns and that the public is watched by millions of surveillance cameras. Intentional homicide will be sentenced to life imprisonment, fixed-term imprisonment for at least 10 years, and death. Minor instances in this circumstance will receive fixed-term imprisonment of more than 3 years, but less than 10.^[3]

Northern Ireland

In Northern Ireland, this offence was created by section 10 of the Criminal Justice Act (Northern Ireland) 1966. On the trial of an indictment for capital murder, the jury could not return an alternative verdict to the offence charged in that indictment under section 6(2) of the Criminal Law Act (Northern Ireland) 1967.

Sections 1(4) and (5) of the Northern Ireland (Emergency Provisions) Act 1973 read:

(4) For the purpose of any proceedings on or subsequent to a person's trial on a charge of capital murder, that charge and any plea or finding of guilty of capital murder shall be treated as being or having been a charge, or a plea or finding of guilty, of murder only; and if at the commencement of this Act a person is under a sentence of death for capital murder, the sentence shall have effect as a sentence of imprisonment for life.
(5) In this section "capital murder" means a murder which immediately before the commencement of this Act is a capital murder within the meaning of section 10 of the Criminal Justice Act (Northern Ireland) 1966.^[4]

Republic of Ireland

See also: Capital punishment in Ireland

The Criminal Justice Act 1964 reduced the penalty for the common law offence of murder from death to life imprisonment,^[5] but specified that the death penalty would still apply to "capital murder", defined as murder committed in certain circumstances, namely:^[6]

• of a Garda (police) or prison officer "acting in the course of his duty"; or
• for a political motive, of a foreign head of state, diplomat, or government member; or
• in the course or furtherance of certain offences under the Offences against the State Act 1939:^[7]
  • Usurpation of functions of government (Irish republican legitimists believed the IRA Army Council was the legitimate government of Ireland)
  • Obstruction of government (legislative, judicial, or executive branches)
  • Obstruction of the President
  • Interference with military or other employees of the State
  • Furtherance of the aims of an organisation which is unlawful for reasons other than tax resistance (this applied to the Irish Republican Army and Irish National Liberation Army)

To be found guilty of capital murder, a person had to be charged in the indictment with "capital murder" rather than "murder".^[8] A defendant on trial for "capital murder" could be found not guilty of capital murder but guilty of murder or manslaughter as a lesser included offence.^[9] The meaning of "capital murder" under the 1964 act was elucidated by the Supreme Court in the 1977 case of Noel and Marie Murray, convicted by the Special Criminal Court (SCC) of capital murder after the 1975 shooting of a Garda, who was off duty and not in uniform, giving chase after they had robbed a bank. The court held that "capital murder" was a new offence, not merely a subtype of the existing common law offence of murder; and that the Garda was acting "in the course of his duty", despite not being on duty; but that, as he was in plain clothes, the Murrays did not know he was a Garda; and so, while there was intent (mens rea) to commit murder, there was no intent to commit capital murder.^[10] The Supreme Court substituted a conviction of simple murder for Noel Murray; Marie Murray was retried by the SCC for simple murder and convicted. After the Murrays, nine others were convicted of capital murder, all of whom were sentenced to death by the SCC for murders committed between 1980 and 1986 of Gardaí acting in the course of their duty. All sentences were commuted to life imprisonment by President Patrick Hillery on the advice of the Government; of these, Peter Pringle's conviction was overturned in 1995 as unsafe.

The Criminal Justice Act 1990 abolished the death penalty for all offences and repealed the provisions of the 1964 act relating to capital murder.^[11] Section 3 of the 1990 act listed the same circumstances of murder as those which the 1964 act designated as "capital murder", and sections 4 and 5 specified stronger minimum sentence and remission rules for murders in those circumstances than for other murders.^[12] Several legal texts call this "aggravated murder".^[13] The indictment must specify that section 3 of the 1990 act applies to the murder,^[14] and the act amended earlier statutes to replace "capital murder" with "murder to which section 3 of the Criminal Justice Act 1990 applies".^[15] While this is the legal description,^[16] and as such used in later statutes,^[17] such murders are often called "capital murder" by the media,^[18] and the term has been used by judges in jury instructions.^[19] After the 2020 shooting of an on-duty Garda, the killer was charged in 2021 with "capital murder, contrary to common law as provided for by Section 4 of the Criminal Justice Act 1964, Section 3 (1) (a), Section 3 (2) and Section 4 of the Criminal Justice Act 1990".^[20]

United States

Legal meaning

The term "capital murder" is used in only eight U.S. states; however, 27 states and United States federal government currently allow capital punishment,^[21] and each has its own terminology for an offence punishable by death. In most states, the term "first-degree murder" is used; others may use the term "aggravated murder" (such as New York, Ohio, Oregon, Utah, Vermont, and Virginia (since 2021)), and some use simply "murder". The seven states that use the term "capital murder" are Alabama, Arkansas, California, Kansas, Mississippi, New Hampshire, and Texas. The state of Georgia uses the term "malicious murder".

Not all offenses are parallel between the states. In some, first-degree murder is a very broad term defined by a number of circumstances, only a few of which make a defendant eligible for execution. In other jurisdictions, an offense carrying the death penalty is strictly defined and is separate from other, similar crimes.

Although legal definitions vary, capital murder in the United States usually means murder involving one or more of the following factors:

• The victim is a police officer, firefighter, paramedic or similar public safety professional and was killed while on duty
• The victim is killed during the commission of another violent felony, such as armed robbery, kidnapping, arson, etc. (felony murder)
• The victim is tortured, raped or sexually assaulted, particularly if the victim is a child
• Multiple murders are committed pursuant to one another^{[citation needed]}
• Murder-for-hire^{[citation needed]}
• Terrorism^{[citation needed]}
• The victim is murdered based on race, national origin, and other associated groups^{[citation needed]}
• The victim is a witness to a crime

Some states may include other factors which amount to capital murder or its legal equivalent.

Punishment

Capital offenses in the United States are not punishable by death exclusively. Most states afford courts the option of imposing either the death penalty or a life sentence upon conviction, though lesser sentences are rare and in some cases legally impossible. Depending on the state, the presiding judge may determine the sentence, or the decision may be left to the jury.

The United States Supreme Court has placed limitations on the use of the death penalty and has prohibited its use in cases where the offender is mentally incompetent,^[22] or was under the age of 18 at the time of the offense.^[23]

Sources

• Irish Statute Book: Criminal Justice Act 1964 and Criminal Justice Act 1990

Citations

1. Bohm, Robert (1999). DeathQuest: An Introduction to the Theory and Practice of Capital Punishment in the United States (4th ed.). ISBN 1437734936.
2. "Chapter 1 of Title 8 of Part 1 of the California Penal Code". California Office of Legislative Counsel. 1872–2020. Retrieved 25 March 2021.
3. https://www.chinajusticeobserver.com/a/is-murder-legal-in-china？%20
4. Digitised copy from Legislation.gov.uk
5. Criminal Justice Act 1964 s. 1(1)(b), 2
6. Criminal Justice Act 1964 s. 1(1)(b)
7. §§6, 7, 8, 9, and 18 Offences Against the State Act, 1939 Irish Statute Book, Acts of the Oireachtas
8. Criminal Justice Act 1964 s. 3(1)
9. Criminal Justice Act 1964 s. 3(2)
10. People (DPP) v Murray [1977] IR 360; O'Connor, Paul (Winter 1979). "Capital Murder and the Supreme Court". Irish Jurist. New series, Vol. 14 (2): 329–333. JSTOR 44027413.
11. Criminal Justice Act 1990 s. 1 and Second Schedule
12. • Criminal Justice Act 1990 ss. 4–5
    • "2.B.(2)(a) — Abolition of the Death Penalty". Mandatory Sentences. LRC Reports. Vol. 108. Dublin: Law Reform Commission. June 2013. §§2.66–2.67. ISSN 1393-3132. Retrieved 12 May 2017.
13. • McIntyre, T. J.; McMullan, Sinéad (2005). "5.2.2 Aggravated murder". Criminal Law (2nd ed.). Dublin: Thomson Round Hall. pp. 86–87. ISBN 978-1-85800-410-5.
    • Ní Choileáin, Cecilia (2006). "9.1.4 Aggravated murder". Criminal law. Dublin: Thomson Round Hall. pp. 48–49. ISBN 978-1-85800-453-2.
14. Criminal Justice Act 1990 s.6(1)
15. Criminal Justice Act 1990, First Schedule, 3(b); 4 (g), (n), (o), (q), (u)
16. • Walsh, Dermot (2002). Criminal procedure. Dublin: Thomson Round Hall. pp. 1022–1024. ISBN 978-1-85800-223-1. The 1990 Act also abolished the distinct offence of capital murder and introduced in its place a new offence of 'murder to which section 3 applies'
    • Stanton, David (22 February 2017). "Minimum Custodial Periods upon Conviction for Murder Bill 2017: Second Stage". Seanad Éireann (25th Seanad) debates. Houses of the Oireachtas. Retrieved 28 January 2020. the existing offence of murder under section 3 of the Criminal Justice Act 1990, formerly known as capital murder
    • "Detention after arrest". www.citizensinformation.ie. 17 February 2015. Retrieved 28 January 2020. Section 50 of the Criminal Justice Act 2007 applies to detention in connection with the following offences: [...] Murder to which Section 3 of the Criminal Justice Act 1990 applies (includes the murder of a Garda or prison officer)
    • Clarke, Frank (18 July 2013). "Callan -v- Ireland & anor". §2.1. [2013] IESC 35 2 – via British and Irish Legal Information Institute. In substance, the 1990 Act abolished the death penalty and thus the separate crime of capital murder of which Mr. Callan had been convicted. However, what replaced capital murder was what might be called s. 3 murder involving the same ingredients as the former crime of capital murder.
17. Criminal Law (Suicide) Act 1993 s. 2(3); Criminal Law Act 1997 s. 9(3)–(4); Criminal Justice Act 2006 ss. 183(1)(d), 183A(1)(f) as amended by Criminal Justice Act 2007 s. 46; Defence (Amendment) Act 2007 s. 59; Criminal Justice Act 2007 s. 50; Criminal Justice (Miscellaneous Provisions) Act 2009 s. 48(c); Criminal Procedure Act 2010 Schedule Schedule, 1; Parole Act 2019 s. 24(13)
18. "Man charged with capital murder of Detective McCabe". Independent.ie. 13 March 1998.; O'Donnell, Orla (8 January 2019). "Family of Garda Adrian Donohoe awarded over €1m". RTÉ News. Retrieved 28 January 2020. [A man] has been charged with the capital murder of Detective Garda Donohoe and is due to go on trial
19. • "Jury begins deliberations in trial of Stephen Silver for murder of Garda Colm Horkan". The Irish Times. 15 November 2022. Retrieved 16 March 2023. Mr Justice Paul McDermott ... outlined to the jury the verdicts available to them; guilty of the charge of capital murder, not guilty of capital murder but guilty of murder, guilty of manslaughter or guilty of manslaughter by reason of diminished responsibility.
    • Lally, Conor; Dunne, Ryan. "Emotional scenes as Stephen Silver convicted of capital murder of Det Colm Horkan". The Irish Times. No. 16 March 2023. Retrieved 16 March 2023. Ms Justice Tara Burns at the Central Criminal Court told the jury members the possible verdicts they could consider related to capital murder, murder simpliciter, or manslaughter either because of diminished responsibility or self-defence.
20. Kelly, Darragh (19 February 2021). "Book of evidence served against man charged with capital murder of garda". The Irish Times. Retrieved 16 March 2023.
21. "States With and Without the Death Penalty". deathpenaltyinfo.org.
22. "Atkins v. Virginia 536 U.S. 304 (2002)". Justia Law. Retrieved 7 April 2017.
23. Kennedy (1 March 2005), Roper v. Simmons (Opinion of the Court), vol. 543, p. 551, retrieved 7 April 2017

https://www.economist.com/china/2023/11/23/china-says-it-has-achieved-a-miraculously-low-crime-society#:~:text=The%20recorded%20homicide%20rate%20per,%25%20and%20assaults%20by%2040%25. https://nypost.com/2021/02/18/chinas-authoritarian-execution-system-spares-no-prisoner/ https://www.chinajusticeobserver.com/a/how-many-crimes-are-punishable-by-death-in-china