Created by FindLaw's team of legal writers and editors | Last updated November 26, 2019
Last updated 11/18/2019
In California, capital punishment remains in a state of legal limbo, despite efforts to ban the practice through statute or ballot initiative. While a 1972 California Supreme Court case outlawed the death penalty, stating it violated the state constitution, it was reinstated in 1978. On July 16, 2014, federal judge Cormac J. Carney of the United States District Court ruled that California's death penalty system is unconstitutional because it is arbitrary and plagued with delay. In other words, the judge ruled that California’s death penalty violated the Eighth Amendment’s prohibition against cruel and unusual punishment because of delays in the appeals process. In March 2019, the governer of California signed a moratorium suspending execution of those who are on death row.
The state has not executed a prisoner since 2006. Lethal injection is the most common form of legal execution in California, although prisoners may choose exposure to lethal gas instead.
The following information provides the basics of California capital punishment laws. Read the History of Death Penalty Laws and Death Penalty Challenges to learn more.
| Code Section | Pen. Code §§37; 190, et seq. §§3700, et seq. |
| Is Capital Punishment Allowed? | Undecided at the moment. In the past, yes, if crime is first degree murder with enumerated special circumstances |
| Effect of Defendant's Incapacity | If defendant found insane at any time prior to execution, the execution is suspended. Upon recovery, execution is rescheduled |
| Minimum Age | 18 |
| Available for Crimes Other than Homicide? | Treason |
| Definition of Capital Homicide | Murder committed for financial gain; previously convicted of first/second degree murder; multiple murders in same proceeding; bomb, explosives, grave risk; for purposes of avoiding lawful arrest or attempt to escape lawful custody; murder intentional and involved the infliction of torture; intentional killing of peace officer, federal law officer/agent, fireman in performance of duties, and defendant should have known or knew official status of victim; victim was a juror in any court of record in local, state, or federal system in any state and the murder was intentionally carried out in retaliation or prevention of the victim's official duties; the murder was intentional and perpetrated by means of a firearm being discharged from a motor vehicle intentionally at another outside the vehicle with intent to kill; witness of crime intentionally killed to prevent retaliatory testimony at criminal proceeding; retaliation against judge or former judge of this state or any other state, prosecutor, etc.; state officials or officials of any local government of this state or any other state for reasons relating to their office; lying in wait; especially cruel, atrocious, heinous; racial; committed along with robbery, kidnapping, rape, sodomy, oral copulation, burglary, performance of a lewd act upon a child under the age of 14; arson, train wrecking; carjacking; intentionally poisoned; mayhem; rape by instrument; member of a street gang murdering to further activities of the gang |
| Method of Execution | Lethal gas or lethal injection, but if defendant fails to choose, lethal injection. Penal Code Section 3604 |
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
The death penalty is the most severe of punishments a state can pronounce on a criminal defendant. However, the laws in California are in a state of flux and subject to change without warning. Whether you're charged with a capital crime or something less serious, it's always smart to get professional counsel when faced with prison or other serious consequences. Don't leave your fate to chance; contact a California criminal defense attorney today.
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