For the worst of the worst, death row awaits – the final living quarters for prisoners awaiting execution. But what are the crimes that can get you sent to death row?
The laws have changed over the years, but these are the crimes that can get you the death penalty today.
Murder
Just about every person on death row in the United States today is accused of killing a person or causing their death. But in many cases, not just any murder will do. There are a lot of murderers in prison who were never eligible for the death penalty.
Third-degree murder is when someone causes the death of someone unintentionally by committing an act with indifference for human life, and is usually punished similarly to manslaughter.
As for second-degree murder, it’s not eligible for the death penalty in the US either, because it’s considered a crime of passion. Someone who gets into a bar fight and stabs their rival to death will likely face life in prison at most.
And that leaves one degree of murder that could leave you facing the needle.
1. First-degree murder
This is a crime where the person intended to murder the victim and planned for it. This can be any level of planning – if someone decides to kill their wife’s lover and waits outside their house with a gun for several hours, a prosecutor can make the case that this is a first-degree murder because they schemed in advance.
However, other first-degree murders take much more planning, such as someone who aims to get their rich aunt’s insurance by making her arsenic tea with a side of cyanide scones for several weeks before she expires.
2. Felony murder
To get the death penalty in the United States, it doesn’t have to be first-degree murder. The category of felony murder classifies any death caused in the commission of a crime as a murder, as a deterrent to the criminal.
This means that if a gun accidentally goes off in the commission of a robbery, even if the gunman didn’t intend to press the trigger, it’s murder if someone dies. And it goes further – if they hit someone and kill them during the getaway drive, it also counts as murder.
Different states practice it differently, and some states require the criminal to commit a dangerous felony during the crime to trigger the rule. The others extend it to any act dangerous to human life, regardless of whether it’s a felony.
Some felony murder cases are a little more loosely connected.
The Supreme Court has given conflicting rulings on whether someone who is only a small part of a felony murder case can be given the death penalty. According to the last ruling, Tison vs. Arizona, the death penalty is allowed for a felony murderer who played a major role in the underlying felony and showed reckless disregard for human life.
That was probably what spared Ryan Holle in 2004. The Florida man discussed a plan to rob and assault a young woman with his friends, and the friends then decided to make that reality. Holle lent them his car – and when the woman was found dead, he was charged with felony murder and sentenced to life in prison.
His sentence was eventually commuted, but he likely wouldn’t have been eligible for the death penalty because prosecutors couldn’t prove he had knowledge that a murder was likely.
Other cases are more thorny.
The public outrage was swift when word got out that Lakeith Smith had been sentenced to sixty-five years in prison for the murder of his friend after his friend was killed – by a police officer in Alabama.
Smith, only fifteen at the time, broke into two houses with his friend A’Donte and burglarized them. When a police officer caught up to them, they ran, and A’Donte was shot and killed. Smith, as the surviving culprit, was charged with felony murder because he was a participant in the crime that led to A’Donte getting killed. Lakeith never faced the death penalty because of his age, but Alabama has enforced it on others accused of being accomplices to murder.
3. Depraved indifference
It was 2006 when a devastating fire swept through Cabazon, California and burned over forty thousand acres, and it tragically claimed the lives of five firefighters. An investigation into the cause began, and they soon discovered that Raymond Lee Oyler was responsible.
The mechanic seemed to have a fascination with fire, and was found to have deliberately set it with a slingshot and homemade incendiary devices. He wasn’t just charged with arson – he was charged with first degree murder for the deaths of the firefighters. While there was controversy over the death penalty for a crime where there was no proof he intended to kill anyone, Oyler was convicted and sits on California’s death row to this day.
4. Non-murder crimes like theft and sexual offenses can still get you the death row.
For a while, it was surprisingly easy. Back when the United States was young, crimes like horse theft could get you hung in the west. The argument was that stealing horses can deprive people of their livelihood and lead to deaths, so it was fair game.
Heinous sexual offenses could also lead to a trip to death row. But most states did away with those laws fairly early – except Louisiana. Up until 2008, Louisiana had laws on their books allowing the death penalty for particularly heinous crimes involving children even if the victim didn’t die.
But Patrick O’Neal Kennedy appealed his 1998 conviction, and the Supreme Court ruled 5-4 that execution for a crime that didn’t result in the death of the victim was cruel and unusual punishment. That was the end of the death penalty for crimes other than murder or was it.
The 27 states that still have the death penalty are all bound by the Supreme Court ruling, but other institutions in the United States have their own systems – and there are surprising cases that can result in the death sentence. The US military has its own court system, with enlisted criminals facing court-martials.
There are currently four inmates on the US military’s death row – two convicted for brutal murders while they were members of the military, and the other two convicted of murdering their fellow servicemen in attacks abroad or on US military bases.
5. Desertion
Those who watched Steven Spielberg’s biography of Abraham Lincoln found one scene particularly memorable – the kindly President kept on commuting the sentences of soldiers convicted of desertion. Back then, abandoning your post and going AWOL in the middle of a war could get you executed – and it still can now!
But it’s unlikely to happen any time soon. The last soldier executed for Desertion was Private Edward Slovik in World War 2. That case is highly controversial, with his defenders portraying Slovik as a scared young man who was desperate to escape the war by any means necessary.
Why has no soldier who deserted faced the death penalty since?
Simple – the crime only applies during wartime. And no matter how many military conflicts the military has been involved in since WW2, the United States has never formally declared war again.
The military engagements since have a different class, and the crimes of desertion and disobeying an order in combat carry lesser penalties including prison time. But the laws are still on the books, and should a major war with a formal declaration begin again, those who turn tail and run could face a firing squad.
Another area of the United States carries its own laws.
The federal government has its own death penalty system, and currently has forty-six people on death row. This is where many of the worst of the worst crimes are tried, with the assumption being that these crimes are so heinous, they’re not just against the person – they’re against the whole society.
But all of these crimes are still aggravate murder, and the circumstances make them federal affairs. For instance, someone who goes hiking with their lover and murders them in the woods to keep their secret could face the federal death penalty – if they killed the victim in a national park.
Other factors can turn a state crime into a federal crime in a hurry.
Federal law covers murders that take place during a hijacking – which includes a carjacking – or a kidnapping. Even if the crime doesn’t cross state lines, the criminal is eligible for the federal death penalty.
Massachusetts and New Hampshire don’t have the death penalty anymore, but when Gary Lee Sampson murdered three people in a carjacking spree in the early 2000s, he was tried under federal law.
While he briefly escaped death row due to accusations of jury misconduct, the next jury reached the exact same verdict.
Sometimes it has less to do with where you do something than why you do it.
Kaboni Savage was a notorious drug kingpin in Philadelphia, but the feds were closing in on him. He was likely to be convicted at trial due to the testimony of a federal witness – and so he decided to do something about it.
He didn’t have easy access to the location of the witness, so he cast a wide net – hiring someone to firebomb the house where he was staying and killing six people inside. That made it a federal crime – murder in aid of racketeering, and retaliating against a witness by murder, and he sits on death row at ADX Florence.
And sometimes, it’s who the target is that makes the difference.
New Orleans officer Len Davis was a notorious abuser of his authority, and when he brutally beat a suspect, a woman named Kim Groves saw him and filed a complaint. So Davis decided to silence her – permanently, by hiring a drug dealer to assassinate her. This led to him being convicted of conspiracy to violate her civil rights through murder, a death penalty crime.
He would be later joined on death row by Dylann Roof, the notorious Charleston Church shooter. While Roof was guilty of murdering parishioners in South Carolina, his racist views made him guilty of violating federal hate crime statutes, and the feds swooped in and made sure they were the first to sentence him to death.
6. Terrorism
The word itself strikes fear in people’s hearts, and it refers to any sort of mass attack designed to cause casualties for political reasons. Federal death row has held some notorious homegrown terrorists, including Timothy McVeigh, the anti-government bomber of the Alfred P. Murrah Federal Building that killed 168 people.
Two decades later, the surviving Boston marathon bomber Dzokhar Tsarnaev would join him for the mass casualty attack that killed three people – although his death sentence is pending a new trial.
And one of the masterminds of the September 11th 2001 attacks, Khalid Sheikh Mohammed, still awaits trial on the murder of almost 3,000 US citizens – and will no doubt head to death row if convicted.
7. Treason
Treason is defined as the crime of attacking a state authority that the person owes allegiance to, which allows for a little wiggle room. And that means the government can charge people with treason for many different actions – but not all the charges stick.
Treason charges in the United States date back to the Whiskey Rebellion under George Washington, but the two men sentenced to hang were pardoned. That became a common pattern, with the majority of treason convicts eventually being released.
Some weren’t so lucky.
The first execution for treason in the United States was the controversial anti-slavery activist John Brown, who led a slave insurrection and a raid on Harper’s Ferry. Both he and his fellow abolitionist Aaron Dwight Stevens were executed, as were William Bruce Mumford – who torn down a US flag during the Civil War – and Mary Surratt for her involvement in the assassination of Abraham Lincoln. Of the many convictions for treason in World War 2, all would be commuted to life in prison.
8. Espionage
It was the height of the Cold War when Julius and Ethel Rosenberg were arrested for a shocking crime – providing top-secret intel about American weapons, including the nuclear program, to the Soviet Union. Both were charged with espionage, a capital crime, and sentenced to death in the electric chair.
While there were protests that Ethel was at most a minor player in her brother’s scheme, it couldn’t save them from execution. The government accused her of being an active participant who recruited other spies, including her brother.
While most spies before and after received lengthy prison terms, the Rosenbergs are the only civilians executed for espionage and the only people executed for the crime during peacetime.
