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CRIMINAL/DEFENSE is the Death Penalty?

One of the most well-known and most severe punishments that a person could possibly face is the death penalty. This criminal punishment is extremely limited, and has become increasingly controversial in recent years. The death penalty is only available in certain cases, where certain requirements must be met in order to even consider this punishment as an option. Not all states offer the death penalty, however, and may offera sentence of life without parole as an alternative to this punishment.

Mala In Se Crimes

Criminal law is based on prohibiting acts considered to be reprehensible and punishing people for committing those acts. A criminal act is any behavior or act that society has decided should be punishable by the imposition of the death penalty, a term of imprisonment, fines, or probation. The current criminal legal system in the U.S. comes, in part, from the so-called system of “common law”, which originated in the United Kingdom.

Conceptually, crimes are divided into those criminal acts which are “mala in se,” or inherently immoral, and those which are “mala prohibita,” or criminal only because they are prohibited by a local, state or federal law. The phrase “mala in se” is a Latin phrase that means “evil or wrong in itself.” The phrase “mala prohibita” means “wrong because they are prohibited.”

Example of crimes that might be considered “mala prohibita” would be gambling, prostitution, vagrancy, disorderly conduct, public intoxication, and parking violations. Most people would agree that there is nothing inherently bad or immoral in the acts that constitute these crimes, but society has decided to make them criminal for various reasons.

This assertion is, of course, debatable. There are reasonable people who might believe that gambling is inherently wrong or immoral. Currently, many states are legalizing gambling of various kinds, e.g. sports betting, and our society in general seems to accept that there is nothing inherently wrong with gambling. The point is that in times past, these actions may not have been criminal and were not considered to be in the same class as acts that were mala in se.

It is also worth noting that currently the distinction between crimes that are mala in se and those that are mala prohibita does not have much, if any, practical importance in the administration of our current federal and state systems of criminal justice. But the concept may, in part, explain the historical origins of the death penalty and the reason for its persistence in some parts of the U.S.

What Are Mala In Se Crimes?

Mala in se crimes are defined as criminal acts that are wrong because they are inherently immoral. In the traditional British system of criminal justice, on which the American justice system is based, crimes that were considered mala in se were punished by imposition of the death penalty.

While crimes mala in se remain, in general, among the most heinous of crimes, especially when compared to crimes that are mala prohibita, they do not necessarily incur the most severe punishments any longer. For example, in most states, a third drunk-driving conviction would result in a more severe punishment than a first-time conviction for petty theft.

Today, mala in se crimes are not punishable by death in most states. Some states do still impose the death penalty for certain mala in se crimes, e.g. first degree murder, usually of a particular kind of victim. In other states, the punishments for mala in se crimes are still harsh, even if they are not punishable by death. They would be punished by lengthy prison terms or life in prison without parole.

Twenty-two states in the U.S. have abolished the death penalty and they are:

  • 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;
  • Washington;
  • West Virginia;
  • Wisconsin; and
  • Washington, District of Columbia.

Three states, California, Oregon and Pennsylvania, have placed moratoria on executions. This means that a person might still be sentenced to death, but executions are not carried out.

The states listed below still have the death penalty. People under a death sentence wait on average about 14 years between sentencing and execution. Meanwhile, the death sentence was completely abolished in the United Kingdom in 1998.

  • 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;
  • Virginia;
  • Wyoming.

As for the crimes for which the death sentence may be imposed, In Ohio, for example, an inmate may be sentenced to death if they are charged with aggravated murder in addition to specific circumstances. These include a murder that constituted the assassination of a public official, or if the victim was a peace officer, or the murder was committed while the defendant was a prisoner in a detention facility.

Other offenses for which the death penalty may be imposed in Ohio are mala in se offenses of rape, kidnapping, aggravated arson, aggravated robbery, aggravated burglary, the killing of a witness to a crime to prevent their testimony or in retaliation for testimony already given.

Ohio previously administered the death penalty by hanging and electrocution in the electric chair. Ohio now uses lethal injection for executions, although an inmate can request electrocution. Defendants who are mentally incapacitated, pregnant, or who were under 18 years old at the time of their offense may not be executed.

The U.S. federal criminal statutes list 41 offenses that are punishable by death, or “capital” offenses. Among the federal capital offenses are espionage, treason, and death resulting from aircraft hijacking. However, they are mostly various forms of murder such as murder committed during a drug-related drive-by shooting, murder during a kidnapping, murder for hire, and genocide.

Of course, the federal death penalty applies in all 50 states and U.S. territories, but the death penalty is rarely imposed in federal criminal cases. There are currently about 50 prisoners on federal death row, most of them in the maximum security prison in Terre Haute, Indiana. There have been 16 federal executions in the modern era, all by lethal injection. Thirteen executions took place in a six-months between July 2020 and January 2021.

Which Crimes Are Considered Mala In Se?

Crimes that are historically mala in se include such heinous criminal acts as:

  • Murder;
  • Rape;
  • Robbery;
  • Burglary.

Today, it is often the aggravated forms of these crimes that are punishable by death. However, it is clear that there is a relationship between the concept of mala in se crimes and the death penalty.

What Is the Difference between Mala In Se and Mala Prohibita?

Mala prohibita crimes are criminal acts that are wrong because they violate a statute or law rather than being an action that harms or offends our sense of morality. Most of the time, mala prohibita crimes are considered less serious than mala in se crimes. For example, a ticket for a moving violation, tax evasion, or a shoplifting are all considered to be mala prohibita crimes.

Do White Collar Crimes Fit into This Category?

White collar crimes are normally not included among mala in se criminal acts. This is because white collar crimes are generally non-violent offenses committed for financial gain. So, they are generally classified as mala prohibita crimes.

What Is the 8th Amendment?

The 8th Amendment is one of the ten amendments that makes up the Bill of Rights portion of the United States Constitution. The 8th Amendment was adopted in 1791 to specifically prohibit the federal government from imposing the following three practices on criminal defendants:

    • The federal government is prohibited from issuing cruel and unusual punishments against criminal defendants;
    • The federal government is precluded from imposing excessive fines on criminal defendants; and
    • The federal government is forbidden from requiring criminal defendants to pay bail amounts that are or would be considered as excessive.

In other words, the 8th Amendment aims to protect criminal defendants from unduly harsh or disproportionate treatment by restricting the federal government from issuing certain penalties. Such issues frequently arise when sentencing criminal defendants in capital or 8th Amendment cases. 

Capital or 8th Amendment cases refer to those wherein the federal government is seeking capital punishment; otherwise, known as the death penalty. Capital punishment is one of the most controversial and widely debated topics under the 8thAmendment. The U.S. Supreme Court has routinely held that the death penalty does not constitute “cruel and unusual” punishment, but has found that it is and should be limited in its application. 

For instance, in 2002, the U.S. Supreme Court held that imposing the death penalty on an intellectually incompetent criminal defendant was unconstitutional under the 8th Amendment's “cruel and unusual” punishments clause. In its ruling, however, the Court left it open for individual states to define what qualifies as a mental or intellectual disability. 

Finally, cases involving 8th Amendment matters should be taken very seriously. Thus, it is strongly recommended that you consult with a local criminal defense attorney immediately if you are facing such issues.

What Does the Eighth Amendment Prohibit?  

As previously discussed, the 8th Amendment prohibits the federal government from imposing excessive fines or bail, and from inflicting cruel and unusual punishments on criminal defendants. The 8th Amendment also applies to state governments, but only insofar as the clauses for excessive fines and cruel and unusual punishments are concerned. 

The 8th Amendment's Excessive Bail Clause does not yet apply to the states. However, some state legislatures have gradually started enacting their own individual state laws to curb excessive bail practices.

What is Excessive Bail?

In a criminal law context, the term “bail” typically refers to the money that a criminal defendant pays to the court in exchange for being released from custody until trial. While bail is often supplied in the form of a bond, the bond does not necessarily need to be purchased with cash. Rather, the court or a “bail bondsman” may also accept other collateral, such as jewelry or a car.

According to a 1987 U.S. Supreme Court decision, bail may be considered excessive when the amount is set at a price that is higher than necessary to prevent a criminal defendant from fleeing the country or endangering society.

Additionally, bail is primarily used to ensure that a criminal defendant appears at trial. If the defendant fails to appear in court on the date of their trial, they not only risk forfeiting the bail money or property, but the court may issue a warrant for their arrest. Thus, bail may also be considered excessive when the amount is more than would be reasonably necessary to guarantee that the defendant will appear at trial.

What are Excessive Fines?

In general, the sentence that a criminal defendant receives should be proportionate to the crime they are accused and convicted of committing. Criminal fines are just one form of punishment a criminal defendant may face during their sentencing hearing. Criminal fines are monetary penalties intended to punish and deter a criminal defendant from committing the same or similar crimes in the future.

Criminal fines may be considered excessive when they are “grossly disproportionate” to the nature of the crime or would deprive a criminal defendant of their property without due process of law. 

Until recently, it was unclear whether the 8th Amendment's Excessive Fines Clause also applied to state governments. In 2019, however, the U.S. Supreme Court issued a decision that confirmed that this clause applied to the states as well.

What is Cruel and Unusual Punishment?

Cruel and unusual punishment refers to a form of punishment that causes a criminal defendant to suffer such pain, humiliation, or suffering that it is considered to be unconstitutional under the 8th Amendment. A punishment may also be deemed to be cruel and unusual if it is disproportionate to the crime committed or is seemingly random.

In 1972, the U.S. Supreme Court provided guidance as to what may be considered as a “cruel and unusual” punishment:

  • The punishment is issued in a “wholly arbitrary fashion”;
  • The punishment is so severe as to be inhumane;
  • The punishment is clearly rejected by society as a whole; and 
  • The punishment is “patently unnecessary”.

An example of cruel and unusual punishment includes torturing a criminal to death. Hence, why there are strict instructions for administering the death penalty.

How Does the 8th Amendment Affect Sentencing?

The 8th Amendment affects sentencing in that it restricts the manner in which criminal defendants are punished. It also prevents the government from imposing unnecessary and disproportionate penalties on criminal defendants who are lawful U.S. citizens. 

For example, a defendant who is convicted of stealing $1,000 in candy, cannot be sentenced to death for committing this offense. The death penalty would be an overly severe and patently unnecessary punishment for simply taking some candy bars.

On the other hand, it may be reasonable and considered acceptable by society to give someone the death penalty for assassinating an elected government official. However, the death penalty would need to be administered in a humane fashion, or else it will be considered to be unconstitutional under the 8th Amendment. For instance, lethal injection is a legal form of the death penalty, whereas “stoning” someone to death is not. 

Additionally, the death penalty cannot be imposed on minors, defendants with intellectual disabilities, or on defendants who committed crimes that do not warrant the death penalty as an appropriate form of punishment. 

Can an Unfair Sentence Be Appealed?

There is a specific appeals process for cases involving the death penalty. This process will generally vary in accordance with state laws. It is important to remember that the death penalty is not available as a form of punishment in every state.

The appeals process for federal execution cases is just as specific as the ones implemented in various pro-death penalty states. There are different kinds of appeals as well as different courts in which each separate appeal must be filed. The process may also depend on the issues being appealed and whether they are considered federal or state law issues. 

For example, a “direct appeal” is a type of appeal that is automatically issued to all criminal defendants who receive the death penalty. In contrast, a federal habeas corpus appeal will only be available to criminal defendants who raised federal issues on appeal in state courts.

Accordingly, criminal defendants who are facing the death penalty should speak to a criminal defense attorney immediately for further legal advice.

Again, whether an unfair sentence can be appealed for these types of cases will be contingent on a number of specific factors. Some reasons that could potentially give rise to an appeal include:

  • Juror misconduct;
  • New evidence;
  • Ineffective counsel;
  • Cruel and unusual punishment based on the crime; and
  • If the defendant is a minor or is intellectually disabled.

To reiterate, it is strongly advised that any criminal defendant who is involved in a capital case speak to a criminal defense attorney as soon as possible.

How Does the 8th Amendment Affect Us Today?

Today, the death penalty is not only regarded as a controversial form of punishment, but has also become a hot button issue in politics. According to statistics from the Federal Bureau of Prisons, only 50 federal executions had been carried out since 1972. That is until the Trump Administration approved 13 federal executions over the span of six months, starting from July 2020, and ending with the administration in January 2021. 

On July 1, 2021, Merrick Garland, who is the U.S. Attorney General, placed a moratorium on all federal executions. This means that no further federal executions will be carried out until the Deputy Attorney General and other officials have finished reviewing and amending the Department of Justice's policies and procedures on federal executions.

Can a Lawyer Assist Me with 8th Amendment Issues?

Some services that your criminal lawyer may be able to provide or assist you with when faced with 8th Amendment issues include:

  • Filing an appeal;
  • Providing representation in court;
  • Answering questions about your case and the appeals' process;
  • Determining whether your sentence is unconstitutional under the 8th Amendment; and
  • Asking a relevant government official to grant you executive clemency or to commute your sentence.

As previously discussed, criminal defendants who are dealing with 8th Amendment issues should speak to a local criminal lawyer immediately for further advice. Also, be sure that you hire a criminal lawyer who has extensive experience in handling cases involving an 8th Amendment violation. 

If you have been charged with a mala in se crime, you want to consult an experienced criminal defense attorney. It is possible that the crime with which you have been charged carries a more severe sentence than other crimes, so you have a stronger need for the help of an experienced attorney to handle your defense. Contact a criminal defense attorney to determine the best defense to use and how to proceed through the criminal justice system in dealing with your mala in se criminal charges.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.