Capital Murder – The Law & Sentencing in Nevada

In Nevada, capital murder is defined as first-degree murder with at least one aggravating circumstance that outweighs any mitigating circumstances. Capital murder is the only state crime that carries the potential for the death penalty. That said, Nevada has not actually carried out an execution since 2006, and the state does not appear likely to do so again any time soon.

Before a sentence of death can be imposed, the jury must unanimously agree on this sentence. Otherwise, a defendant convicted of capital murder will get sentenced to prison for life or for a 50-year term.

Charge	Punishment
First-degree murder	Category A felony Death penalty (if the aggravating circumstances outweigh the mitigating circumstances), or Life in Nevada State Prison with or without the possibility of parole after 20 years, or 50 years in prison with the possibility of parole after 20 years
Second-degree murder	Category A felony: 25 years or life in prison (with the possibility of parole after 10 years)
Voluntary manslaughter	Category B felony: 1 to 10 years in prison and up to $10,000
Involuntary manslaughter	Category D felony: 1 to 4 years in prison and up to $5,000

What is “capital murder” in Nevada criminal cases?

Capital murder is a criminal homicide that 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?

No. 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. Most mass shootings are considered premeditated murders.
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 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 the perpetration of terrorism.

Any of these types of first-degree murder potentially carries the death penalty in Nevada.¹

Note that prosecutors need to file a “Notice of Intent to Seek the Death Penalty” when charging the defendant. If the D.A. fails to do this, the most the defendant can face is life in prison.

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

No. If the prosecution is seeking the death penalty, the jury decides whether to impose death or just prison.²

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

No. All defendants in first-degree murder cases get a sentencing hearing 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.³

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 the defendant may not be sentenced to capital punishment.⁴

What sentence can a defendant get if the jury decides against the death penalty?

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 20 years
• 50 years in Nevada State Prison with the possibility or parole after 20 years

Note that murder is a category A felony, the most serious type of crime.⁵

Are any defendants automatically exempt from capital punishment?

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

• under 18 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.⁶

Note that mentally ill people can be executed for capital murder in Nevada. If they are found not guilty by reason of insanity, they would be committed to a mental institution.

Also, note that defendants charged with capital murder who die before being convicted will have the charge dropped.

How does a jury determine whether to impose the death penalty?

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

“Aggravating circumstances” are facts that 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.⁷

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

Nevada law spells out 14 specific aggravating factors, each of which 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 robbery, first-degree arson, burglary, invasion of
   the home, or 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, gender identity or expression, or sexual orientation. Learn more about hate crime laws.
12. The defendant raped or attempted to rape the victim. Learn more about 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.⁸

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.

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 in their 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.⁹

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.

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 18 and did not know any better. The jury is swayed by the letters and ultimately decides to sentence John to life in the Nevada Department of Corrections 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.¹⁰

Is a jury ever obligated to impose the death penalty?

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

Where is death row? What is the method of execution?

Nevada’s death row inmates live at Ely State Prison, which also houses the execution chamber. There have been no executions since 2006. Seventy-three people total have been executed in Nevada.

All executions in the state of Nevada since 1985 have been carried out by lethal injections. Executions from 1924 (starting with Gee Jon) to 1979 (ending with Jesse Bishop) were done in a gas chamber. A firing squad was used only once, in 1913, for Andriza Mircovich.¹¹

Nevada is one of 27 states that still carries the death penalty.

How is manslaughter different than murder in Nevada?

Murder comprises:

• First-degree murder, such as premeditated killings or felony murder, and
• Second-degree murder, which is extremely reckless but unintentional homicide (like playing Russian Roulette).

Manslaughter comprises:

• Voluntary manslaughter, which includes “heat of passion” killings (like killing a spouse righting after walking in on them cheating) or
• Involuntary manslaughter, which is an unintentional homicide resulting from negligent behavior (like setting off a firework in the backyard)

It is not unusual for prosecutors to charge homicide suspects with both murder and manslaughter for the same killing. This is referred to as “open murder.” In “open murder” cases, it is up to the jury to decide which homicide crime to convict the defendant of.

What are defenses to capital murder charges?

The most common way to fight a Nevada capital murder charge is to argue that either:

• You did not commit the killing;
• You had no intent to kill, and the incident was a tragic accident; and/or
• The killing was done in lawful self-defense because you reasonably feared that you or someone else was about to be killed or seriously injured.

Typical evidence in homicide cases includes forensic reports, video surveillance footage, GPS records, and eyewitness accounts.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• No Path Forward: Nevada’s Death Penalty – Nevada Law Journal.
• Death Penalty without a Hearing – How the Nevada Supreme Court’s Decision in Bahena v. Goodyear Incorrectly Defines Discovery Sanctions and Denies Due Process to Civil Litigants – Nevada Law Journal.
• The Supreme Court of the United States Has Been Called upon to Determine the Legality of the Juvenile Death Penalty in Michael Domingues v. State of Nevada – Whittier Law Review.
• Killing Kids: The Impact of Domingues v. Nevada on the Juvenile Death Penalty as a Violation of International Law – B.C. Law Review.
• Doctors back out of participating in Nevada fentanyl execution after court asks for their qualifications – BMJ.

---

Legal References