Capital offense is an offense that is punishable by the death penalty. It is not necessary that the punishment imposed was the death penalty, but if the permissible punishment prescribed by the legislature for the offense is the death penalty, then the offense is considered a capital offense. These offenses are typically murder with special circumstances.
For example, Virginia considers “willful, deliberate, and premeditated killing” in the commission of a robbery or terrorism among many a capital offense. Florida, in addition to murder with special circumstances, provides the death penalty for capital drug trafficking.
Because 22 states have abolished the death penalty, two mutually exclusive theories have been developed on whether capital offenses exist in those states without the death penalty. One theory finds that the term capital offense relates solely to the penalty which may be imposed, and, therefore, states without the death penalty cannot have capital offenses. In contrast, some hold that the term relates more to the gravity of the crime rather than the penalty which may be imposed. Thus, murder with specially circumstances in states without the death penalty may still be considered a capital offense.
[Last updated in June of 2020 by the Wex Definitions Team]