Execution As Homicide

Stupid Question ™
May 16, 2005
By John Ruch
© 2005

Q: Why isn’t a person who carries out a state execution guilty of homicide themselves?
—Jackie, Mashpee, Massachusetts


A: An executioner certainly commits homicide. However, in law, that’s a neutral term that doesn’t necessarily imply criminal guilt.

There are three broad subclasses of homicide in law. The one we generally think of “homicide” in the murder-mystery sense is felonious homicide. In a case of terrible tautology, it simply means homicide that is punishable as a felony (in medieval times, a felony was any crime punishable by death—a much longer list than ours today).

In practical terms, it means a homicide carried out with criminal intent. Felonious homicide is broken down into two more familiar types: murder and manslaughter.

Murder is felonious homicide conducted with “malice aforethought”—premeditation or malicious intent. While definitions of manslaughter vary widely, it generally means felonious homicide without premeditated malice. The classic example is a “crime of passion”—killing someone in the heat of an argument.

Murder is considered worse than manslaughter and punished accordingly.
Felonious homicide also includes “felony murder”—a killing conducted while committing some other, primary felony. It’s essentially a way of punishing what would normally be manslaughter as murder to discourage violent crimes. For example, let’s say you use explosives to blow open a bank vault in the middle of the night with no expectation of anyone being inside. Your intent is to commit various felonies, but not murder. However, if someone turns out to be inside by chance and is killed by the blast, you could be charged with felony murder in some jurisdictions.

Murder and manslaughter don’t necessarily involve direct action. You can be charged with either one for a killing carried out by “procurement” (getting someone else to do the deed)—or “omission” (failing to act in a way that kills someone, such as not feeding them, or acting recklessly).

Another broad legal category is excusable homicide. This covers accidental killings that cannot be considered a crime. Say you hit a golf ball on a course, which bounces off a tree, goes into a crowd, hits a man on the head, and kills him. You have committed homicide, but obviously you had no criminal intent or recklessness. The law would excuse you from criminal penalties.

A legal execution is obviously not excusable homicide. In fact, it sounds like felonious homicide. It fits the bill of the most severe kind of murder—premeditated and malicious. It also involves procurement; because the executioner is a hired killer, it would seem the entire state, and arguably the entire populace of the democracy, could be charged with murder.

But a legal execution is not murder because of the third legal category: justifiable homicide. It covers a killing conducted in self-defense or under some other legal right. Justifiable homicides clearly involve intent, and possibly malice and premeditation, but are “justified” by the law. Because the law justifies it, it is by definition not a crime. (Definitions of excusable homicide sometimes include justifiable homicide.)

Justifiable homicide includes cases in which police officers kill armed suspects, and anyone who kills someone criminally attacking them. (Such killings must still be demonstrably justifiable.) It also covers legal executions, which are penalties justified by the law.

To put a fine point on it, an execution is not legal simply because the state carries it out. It has to be authorized by law. Therefore, if a state conducted an execution without having a death penalty law, it would be murder, not justifiable homicide.