
DPIC Analysis: Use of the Death Penalty for Killing a Child Victim
About half of all death penalty states include the murder of a child as an aggravating circumstance that can subject a defendant to the death penalty
Overview
All of the prisoners currently on death row and all of those executed in the modern era of the death penalty were convicted of murder. Historically, the death penalty was widely used for rape, particularly against black defendants with white victims. When the death penalty was reinstated in 1976, the Supreme Court left open the possibility of imposing the death penalty for offenses other than murder, such as rape or even armed robbery. However, the Court soon ruled that the death penalty would be unconstitutional for the rape of an adult where no death had occurred. That ban was later extended to any non-homicidal rape by the U.S. Supreme Court decision Kennedy v. Louisiana, and the Court commented that the death penalty could no longer be applied for any crime against an individual where no death occurred. The question of whether the death penalty might be used for crimes against the government, such as treason or espionage, remains unsettled.
At Issue
Many states allow all those who participated in a felony in which a death occurred to be charged with murder and possibly face the death penalty, even though they may not have directly killed anyone. The case of unarmed accomplices in a bank robbery in which an employee is killed is a typical example of felony murder. Since the death penalty is supposed to be reserved for the “worst of the worst” cases, legislatures or the courts could restrict its use only to those who directly participated in killing the victim. Prisoners have also raised claims that the aggravating circumstances that make a crime eligible for the death penalty are too broad, with some state death-penalty laws encompassing nearly all murders, rather than reserving the death penalty for a small subset of murders.
What DPIC Offers
Compilations of state laws are available, along with notable court decisions regarding this issue.
News & Developments
News
Mar 26, 2018
POLL: Americans Overwhelmingly Oppose Death Penalty for Overdose Deaths

Americans of all ages, races, and political affiliations overwhelmingly oppose the Trump administration plan to pursue capital punishment for drug overdose deaths and believe it will have no effect on addressing the opioid public health crisis, according to a March 16 – 21, 2018 nationwide Quinnipiac University poll.
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Apr 25, 2023
Law Reviews — Racial Bias in Felony Murder and Accomplice Liability
A forthcoming article in the Denver Law Review discusses two theories of homicide law, the felony murder rule and accomplice liability, that create group liability for the actions of an individual. The article, written by Professors G. Ben Cohen (pictured), Justin D. Levinson, and Koichi Hioki states that “Research suggests that the administration of accomplice liability [and] felony murder doctrines disproportionately impact Black and minority defendants,” causing minority defendants to be sentenced for first degree murders they did not personally commit at greater rates than white defendants. The researchers’ explanation for this disparity is that “Americans automatically individualize white…
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Feb 24, 2022
Despite Ineffectiveness as Public-Safety Tool, Anti-Abolition Lawmakers Push Bills to Reinstate Death Penalty for Killings of Police Officers
Despite the absence of evidence that the death penalty protects police or promotes public safety, lawmakers in several states that have abolished capital punishment have introduced bills to reinstate capital punishment for the murders of police officers.
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Sep 16, 2021
Nevada Supreme Court Finds Samuel Howard Actually Innocent of Death Penalty
NEWS (9/16/21) – Nevada: The Supreme Court of Nevada has overturned Samuel Howard’s death sentence, finding him “actually innocent” of the death penalty. Reversing the trial court’s dismissal of Howard’s postconviction challenge to his death sentence, the appeals court ruled that a recent decision by New York state courts that overturned a conviction prosecutors relied upon as an aggravating circumstance in Howard’s case invalidated that aggravating circumstance.
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May 07, 2021
Texas House of Representatives Passes Bill to Limit Death-Penalty Eligibility for Defendants Who Do Not Kill
In an overwhelming bipartisan vote, the Texas House of Representatives has passed a bill that ends death-penalty liability under the state’s controversial “law of parties” for felony accomplices who neither kill nor intended that a killing take place and were minor participants in the conduct that led to the death of the victim. Currently, Texas law makes any participant in a felony criminally liable for the acts of everyone else involved in the crime, irrespective of how small a role he played in the offense or whether he knew or…
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Jan 26, 2021
Former South Dakota Prosecutor and Judge Introduces Bill to Limit the State’s Death Penalty
A South Dakota state senator who previously served as a prosecutor and a state court judge has introduced a bill to limit the breadth of the state’s death penalty statute. Senate Bill 98, introduced by Senate Judiciary Committee Chairman Arthur Rusch (R – Clay, pictured) on January 25, 2021, would restrict capital punishment to a single aggravating circumstance, premeditated murders in which a defendant killed a police officer, corrections officer, or firefighter during the performance of their official duties.
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Dec 21, 2020
Capital Case Roundup — Death Penalty Court Decisions the Week of December 14, 2020
NEWS (12/18/20) — Texas: The Texas Supreme Court has overturned a ruling by the state’s comptroller that had denied death-row exoneree Alfred Dewayne Brown’s application for compensation and directed the comptroller to pay Brown the compensation mandated by state law.
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Dec 23, 2019
DPIC Analysis: Death Penalty Erosion Spreads Across the Western United States in 2019
In a year of declining death-penalty usage across the United States, nowhere was the erosion of capital punishment as sustained and pronounced in 2019 as it was in the western United States. Continuing a wave of momentum from Washington’s judicial abolition of capital punishment in October 2018, one state halted executions and dismantled its death chamber, another cleared its death row, two cut back on the circumstances in which the death penalty could be sought and imposed, and the entire region set record lows for new death sentences and executions.
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Apr 03, 2019
Discriminatory Use of Death Penalty Against Gays Raises Concerns Globally and in the U.S.
As human rights activists raise alarms about a new law in Brunei that would punish homosexuality by death by stoning, the U.S. Supreme Court considers whether to hear a case in which jurors who exhibited anti-gay bigotry sentenced a gay defendant to death. Charles Rhines (pictured), a South Dakota death-row prisoner, is asking the U.S. Supreme Court to review his case, after a lower federal court denied him the opportunity to present juror statements showing that homophobic prejudice played a role in his death sentence. Leading civil rights organizations, including…
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Feb 15, 2019
He’s on California’s Death Row, But Demetrius Howard Never Killed Anyone
A February 4, 2019 article in the criminal justice newsletter, The Appeal, features the case of Demetrius Howard, a California prisoner sentenced to death for a crime in which he didn’t kill anyone. Howard was sentenced to death in 1995 for his participation in a robbery in which another man, Mitchell Funches, shot and killed Sherry Collins. Howard was never accused of firing a shot and he has consistently maintained that he neither expected nor intended that anyone would be killed. But under California’s felony murder law, he was eligible…
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Sep 24, 2018
Questionable Ruling Grants Jeffrey Havard New Sentencing but Not New Trial in Controversial “Shaken Baby” Case
Sixteen years after a notorious and now-discredited forensic witness told a Mississippi jury that Jeffrey Havard had sexually abused and shaken his girlfriend’s six-month-old daughter to death, Havard’s death sentence — but not his conviction — has been overturned. On September 14, 2018, Adams County Circuit Judge Forrest Johnson ruled that state pathologist Steven Hayne’s recantation of his diagnosis that infant Chloe Britt had been a victim of Shaken Baby Syndrome was “not sufficient to undermine this court’s confidence in the conviction,” but that “there is a cautious disturbance in confidence of the sentence…
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