Nevada "Capital Murder" Laws (NRS 200.033)
Explained by Las Vegas Criminal Defense Attorneys

A murder conviction does not guarantee the death penalty. The jury must first find that there were "aggravating" circumstances to the homicide before it can impose capital punishment.

Even if the jury does find aggravating circumstances, it is still not obligated to impose death. And a good Nevada criminal defense attorney may be able to present enough "mitigating" circumstances to outweigh any aggravating ones.

This article explains Nevada laws for "capital murder." Continue reading to learn how courts determine whether to resort to the death penalty, and how defendants may try to avoid it.

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Ely State Prison, which houses "Death Row"

What is "capital murder" in Nevada criminal cases?

Capital murder is a criminal homicide which potentially carries the death penalty in Nevada. Note that in California, capital murder is also called "special circumstances murder."

Do all murder convictions potentially carry the death penalty in Nevada?

No. The Nevada crime of murder is divided into two sub-crimes. The less serious is second-degree murder, which never carries the death penalty. The most serious is first-degree murder, which may carry the death penalty.

First-degree murder in turn includes five types of homicides:

  1. Premeditated murder, where the suspect intended to kill the victim. This may include lying in wait, poisoning, torturing, or any other kind of willful, deliberate and premeditated killing.
  2. "Felony-murder," where the suspect killed the victim while carrying out a serious crime. Note that it is still considered felony-murder even if the suspect only accidentally killed the victim. (Learn more about the Nevada crime of felony murder.)
  3. A homicide committed to avoid lawful arrest or lawful custody.
  4. A homicide committed on school property, at a school activity or on a school bus, and the suspect was acting in a way that would endanger lives.
  5. A homicide committed in perpetration of terrorism.

Any of these types of first-degree murder potentially carries the death penalty in Nevada.

Must all first-degree murder convictions be punished by death in Nevada?

No. If the prosecution is seeking the death penalty, the jury decides whether to impose death or just prison.

Do defendants who plead guilty to first-degree murder in Nevada automatically get the death penalty?

No. All defendants in first-degree murder cases get a sentencing hearing in Nevada regardless of whether they were convicted at trial or pleaded guilty (or no contest). it is during the penalty hearing that the jury determines whether or not to impose death or prison.

Note that sometimes defendants agree to a plea bargain where they plead guilty to first-degree murder in exchange for the prosecution's promise not to seek the death penalty. This way the defendant avoids death, and the prosecution avoids having to put on a trial.

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Does a jury have to decide unanimously to impose the death penalty in Nevada?

Yes. Even if only one juror votes against the death penalty, then defendant may not be sentenced to capital punishment.

What sentence can a defendant in a first-degree murder case get if the jury decides against the death penalty in Nevada?

Alternative sentences to the death penalty in Nevada first-degree murder cases include:

  • life in Nevada State Prison without the possibility of parole
  • life in Nevada State Prison with the possibility of parole after twenty years
  • fifty years in Nevada State Prison with the possibility or parole after twenty years

Note that murder is a category A felony in Nevada, the most serious type of crime.

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Are any defendants automatically exempt from capital punishment in Nevada first-degree murder cases?

Yes. Defendants convicted of first-degree murder may not be put to death if they were either:

  • under eighteen at the time of the alleged murder, or


  • mentally retarded

Therefore the most severe punishment these "death ineligible" defendants may receive is life in prison without the possibility of parole.

How does a jury in a sentencing hearing for first-degree murder determine whether to impose the death penalty in Nevada?

A jury may not sentence a defendant to death unless it finds beyond a reasonable doubt that there is one or more "aggravating circumstances" which outweigh any "mitigating circumstances."

"Aggravating circumstances" are facts which make the defendant seem especially egregious, such as torturing the victim prior to death. In contrast, "mitigating circumstances" make the defendant seem less blameworthy, such as if he/she had an abusive childhood.

Note that a sentencing hearing is similar to a mini-trial in that both the prosecution and defense present evidence to support their arguments and to rebut the opposing side's arguments.

What are the "aggravating" circumstances in Nevada first-degree murder cases?

Nevada law spells out fourteen specific aggravating factors which each can raise the maximum punishment for first-degree murder from life in prison to death. The following are the aggravating circumstances in Nevada first-degree murder cases:

  1. The defendant was under a sentence of imprisonment at the time of the murder. This also includes defendants who are out on parole or who are on probation for a felony at the time of the murder.
  2. The defendant has previously been convicted of another murder or a violent felony. It does not matter whether this conviction was in Nevada or not. Each prior offense could be used as a separate aggravating circumstance.
  3. The defendant knowingly created a risk of death to other people at the time of the murder.
  4. The defendant committed the murder in the commission of the Nevada crime of robbery, the Nevada crime of first degree arson, the Nevada crime of burglary, the Nevada crime of invasion of
    the home
    , or the Nevada crime of first-degree kidnapping, and the defendant deliberately meant to kill or knew that lethal force was being used.
  5. The defendant committed the murder to prevent an arrest or to escape custody. The arrest does not have to imminent, and the victim does not have to have been involved in effectuating the arrest.
  6. The defendant committed the murder in exchange for money (or something of monetary value).
  7. The victim was a peace officer or firefighter engaged in their official duties, and the defendant knew (or should have known) this at the time of the murder.
  8. The defendant tortured or mutilated the victim. Torture is acting with the calculated intent to inflict pain for revenge, extortion, persuasion, or any sadistic purpose and to inflict pain beyond the killing itself. Mutilation means to cut off, destroy, or radically alter a limb or essential part of the body. This may include post-mortem mutilation.
  9. The defendant killed more than one person at random.
  10. The murder victim was less than fourteen years old.
  11. The murder was a hate-crime based on race, religion, national origin, disability, or sexual orientation. Learn more about Nevada hate
    crime laws
    .
  12. The defendant raped or attempted to rape the victim. Learn more about the Nevada crime of sexual assault.
  13. The murder took place on school property or at a school activity, and the defendant intended to create a great risk of death or harm to more than one person.
  14. The murder was an act of terrorism.

Note that accomplices to murder may be sentenced to death even if they did not physically kill the victim. The prosecution just needs to show that the accomplice knew that lethal force may be used on the victim. North Las Vegas criminal defense attorney Michael Becker gives an example:

Example: Sam and Bill decide to rob a house in Henderson. Sam knows that Bill is carrying a gun and that Bill would use it to kill anyone who tries to stop them. During the robbery the owner comes back to the house, and Bill shoots him dead. The police come and book Sam and Bill at the Henderson Detention Center for first-degree murder. Eventually, they are both sentenced to death.

Even though Sam did not pull the trigger in the above example, he could be sentenced to death along with Bill because Sam knew that Bill would use deadly force on anyone who thwarted the robbery.

What are the "mitigating" circumstances in Nevada first-degree murder cases?

Mitigating circumstances in Nevada first-degree murder cases can be any information or testimony that makes the defendant seem less deserving of capital punishment. Typical examples are:

  • The defendant had no criminal history.
  • The defendant executed the killing under significant mental or emotional disturbance.
  • The defendant killed under duress or domination of another person.
  • The victim agreed to or participated in the act that resulted to his/her killing.
  • The defendant was an accomplice who played a minor role in the murder.
  • The defendant was young when the killing occurred.
  • The defendant was a victim of an abusive and/or poor childhood.
  • The defendant has made positive contributions to the community.

During the penalty phase of a first-degree murder case, friends and family typically write the court letters attesting to the defendant's goodness and requesting leniency. Boulder City criminal defense attorney Mike Castillo gives an illustration:

Example: John has been convicted of first-degree murder in Nevada. His previous robbery conviction counts as an aggravating circumstance. But he has several friends write the court to say that John was brought up in a house of thieves and that he was taught from a young age to steal. John's defense attorney also points out that John is only eighteen and did not know any better. The jury is swayed by the letters and ultimately decides to sentence John to prison instead of capital punishment.

Even though John in the above example was "death eligible" because of his previous robbery conviction, the jury determined that John's youth and tough childhood outweighed his criminal history. Therefore, the jury imposed prison.

Can death sentences be appealed in Nevada?

Yes, capital murder cases may be appealed to the Nevada Supreme Court. If the Nevada Supreme Court cannot conclude beyond a reasonable doubt that the jury would still have imposed death despite a false aggravating circumstance, the Court is obligated to vacate the death sentence and order a new sentencing hearing.

Is a jury ever obligated to impose the death penalty in a first-degree murder case in Nevada?

Never. Even if the jury unanimously agrees that there are aggravating circumstances which outweigh the mitigating circumstances, the jury still has the discretion not to impose death. The jury is never obligated to order the death penalty.

Accused of murder? Call a lawyer for help ...

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If you are facing "capital murder" charges, call our Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673) for a free consultation. We will do everything we can to resolve the case as favorably as possible.

We represent client throughout Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.

For more read our articles on Las Vegas criminal defense attorneys, Boulder City criminal defense attorneys, North Las Vegas criminal defense attorneys, Henderson Detention Center, Nevada hate crime laws, Nevada crime of sexual assault, Nevada crime of robbery, Nevada crime of first-degree kidnapping, Nevada crime of invasion of the home, Nevada crime of first-degree arson, category A felony in Nevada, sentencing hearing in Nevada, death penalty in Nevada, Nevada crime of murder, and Nevada crime of felony murder. For information on California Penal Code 190.2 PC | Special Circumstances Murder, go to our article on California Penal Code 190.2 PC | Special Circumstances Murder.

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