Felony Murder and the Death Penalty
Encyclopedia
The Eighth Amendment to the United States Constitution
does not prohibit imposing the death penalty
for felony murder
. The Supreme Court of the United States
has created a two-part test to determine when the death penalty is an appropriate punishment for felony murder. Under Enmund v. Florida
, , the death penalty may not be imposed on someone who did not kill, attempt to kill, or intend that a killing take place. However, under Tison v. Arizona
, , the death penalty may be imposed on someone who was a major participant in the underlying felony and acted with reckless indifference to human life.
and one of which is subjective
. The objective evidence
the Court looks for is the legislative judgment of the states and the behavior of sentencing juries
; the subjective evidence the Court looks for is the extent to which a particular death penalty serves the goals of retribution and deterrence. Examining nearly the same question a mere five years apart, the Court came to two different conclusions -- that the Eighth Amendment allows the death penalty for felony murder in some cases but not others, and that the dividing line is the situation presented by Tison.
, , the Court had rejected the death penalty for rape
because only one state -- Georgia
-- allowed that punishment. Accordingly, the task for the Court was to count the number of states that allowed the death penalty for felony murder to see if the death penalty was a comparatively rare sanction for that crime.
This enumeration was not as simple as it might seem at first. In 1982, 36 states authorized the death penalty. In four, felony murder was not a capital crime
. In 11 others, proof of some culpable mental state was an element of capital murder. In 13 states, aggravating circumstances above and beyond the fact of the murder itself were required before imposing the death penalty. This left eight states -- out of 36 -- allowed the death penalty for merely participating in a felony in which a murder was committed. The Court concluded that this evidence "weighs on the side of rejecting capital punishment for the crime at issue"--felony murder for a minor participant who did not actually kill anyone or intend to kill anyone.
By 1987, the counting of the states had shifted. In response to Enmund, four states had modified their capital punishment statutes to reject the death penalty for murder committed in the course of a felony when the participant exhibited reckless indifference to human life. Nevertheless, the Court observed in Tison that of the states that authorized the death penalty for felony murder, only 11 forbade it even for major participants in the felony who exhibited reckless indifference to human life. By the time of Tison, some state supreme courts had expressly interpreted Enmund to allow the death penalty in these cases.
had actually killed someone or intended that a killing take place. In Tison, however, the fact that since Enmund, state appellate courts continued to review and approve death sentences for defendants convicted of felony murder who were major participants in the underlying felony and had exhibited extreme indifference to human life persuaded the Court that juries still considered the death penalty an appropriate punishment for at least some defendants convicted of felony murder.
In an earlier case the Court had remarked that "capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation." The Tison rule retreats from this belief with its implicit assessment that the death penalty can deter even those who act recklessly. "A narrow focus on the question of whether or not a given defendant intended to kill... is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers." In the Court's estimation, "reckless indifference to the value of human life may be every bit as shocking to the moral sense as an intent to kill." Imposing the death penalty on a major participant in a felony who exhibits reckless indifference to human life is justified because of the interest in expressing retribution; imposing it on someone who intends to kill serves deterrence.
concurred in the result in Enmund but dissented in Tison because he believed that there was a measurable difference between one who acts intentionally and one who acts merely recklessly. Both cases had one crucial fact in common -- neither Enmund nor the Tison brothers had committed an act of murder. Enmund had been in the getaway car; the Tison brothers had been fetching a jug of water for the Lyon family. If the death penalty is to be reserved for the worst murderers, Brennan believed in maintaining the distinction between an intentional act and a reckless one. "It is precisely in this context -- where the defendant has not killed -- that a finding that he or she nevertheless intended to kill seems indispensable to establishing capital culpability." Yet the law had traditionally regarded reckless behavior to be less blameworthy than intentional behavior, because it recognizes the "freedom of the human will an a consequent ability and duty of the normal individual to choose between good and evil." Because Enmund had not intended to kill the Kerseys, the Court had struck down his death sentence as not measurably contributing to either the goal of retribution or of deterrence. For Brennan, then, it was incongruous for the Court to hold in Tison that putting someone to death who had acted recklessly would.
Brennan also faulted the Court for ignoring the states that had abolished the death penalty altogether when counting the states that authorized the death penalty for felony murder. "It is critical to examine not simply those jurisdictions that authorize the death penalty in a given circumstance, but those that actually impose it." None of the 65 executions that had taken place after Enmund were carried out on a felony murderer who had not killed or intended to kill (as determined by a jury).
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
does not prohibit imposing the death penalty
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
for felony murder
Felony murder
The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony, what might have been manslaughter is escalated to murder...
. The Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has created a two-part test to determine when the death penalty is an appropriate punishment for felony murder. Under Enmund v. Florida
Enmund v. Florida
Enmund v. Florida, , is a United States Supreme Court case was a 5-4 decision in which the United States Supreme Court applied its capital proportionality principle to set aside the death penalty for the driver of a getaway car in a robbery-murder of an elderly Florida couple.-Background:While...
, , the death penalty may not be imposed on someone who did not kill, attempt to kill, or intend that a killing take place. However, under Tison v. Arizona
Tison v. Arizona
Tison v. Arizona, like Enmund v. Florida, was a 5-4 decision in which the United States Supreme Court qualified the rule it set forth in Enmund...
, , the death penalty may be imposed on someone who was a major participant in the underlying felony and acted with reckless indifference to human life.
Proportionality and felony murder
The Court's proportionality principle has three components, two of which are objectiveObjectivity (science)
Objectivity in science is a value that informs how science is practiced and how scientific truths are created. It is the idea that scientists, in attempting to uncover truths about the natural world, must aspire to eliminate personal biases, a priori commitments, emotional involvement, etc...
and one of which is subjective
Subjectivity
Subjectivity refers to the subject and his or her perspective, feelings, beliefs, and desires. In philosophy, the term is usually contrasted with objectivity.-Qualia:...
. The objective evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
the Court looks for is the legislative judgment of the states and the behavior of sentencing juries
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
; the subjective evidence the Court looks for is the extent to which a particular death penalty serves the goals of retribution and deterrence. Examining nearly the same question a mere five years apart, the Court came to two different conclusions -- that the Eighth Amendment allows the death penalty for felony murder in some cases but not others, and that the dividing line is the situation presented by Tison.
Legislative judgments of the states
In Coker v. GeorgiaCoker v. Georgia
Coker v. Georgia, , held that the Eighth Amendment to the United States Constitution forbade the death penalty for the crime of rape of a woman.-Facts:...
, , the Court had rejected the death penalty for rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
because only one state -- Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
-- allowed that punishment. Accordingly, the task for the Court was to count the number of states that allowed the death penalty for felony murder to see if the death penalty was a comparatively rare sanction for that crime.
This enumeration was not as simple as it might seem at first. In 1982, 36 states authorized the death penalty. In four, felony murder was not a capital crime
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
. In 11 others, proof of some culpable mental state was an element of capital murder. In 13 states, aggravating circumstances above and beyond the fact of the murder itself were required before imposing the death penalty. This left eight states -- out of 36 -- allowed the death penalty for merely participating in a felony in which a murder was committed. The Court concluded that this evidence "weighs on the side of rejecting capital punishment for the crime at issue"--felony murder for a minor participant who did not actually kill anyone or intend to kill anyone.
By 1987, the counting of the states had shifted. In response to Enmund, four states had modified their capital punishment statutes to reject the death penalty for murder committed in the course of a felony when the participant exhibited reckless indifference to human life. Nevertheless, the Court observed in Tison that of the states that authorized the death penalty for felony murder, only 11 forbade it even for major participants in the felony who exhibited reckless indifference to human life. By the time of Tison, some state supreme courts had expressly interpreted Enmund to allow the death penalty in these cases.
Sentencing decisions of juries
"The jury... is a significant and reliable objective index of contemporary values because it is so directly involved" in the criminal justice system. In Enmund the Court recited that of 362 appellate decisions since 1954, only 6 involved a death sentence for a nontriggerman convicted of felony murder, and all 6 executions took place in 1955. This was comparatively rarer than death sentences for rape, of which there had been 72 between 1955 and 1977. Also, as of October 1, 1981, there were 796 people on death row in the United States, of whom only 3 had been sentenced to death absent a finding that the defendantDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
had actually killed someone or intended that a killing take place. In Tison, however, the fact that since Enmund, state appellate courts continued to review and approve death sentences for defendants convicted of felony murder who were major participants in the underlying felony and had exhibited extreme indifference to human life persuaded the Court that juries still considered the death penalty an appropriate punishment for at least some defendants convicted of felony murder.
Retribution and deterrence
Faced with the objective evidence suggesting that legislatures and sentencing juries did not uniformly reject the death penalty for all defendants convicted of felony murder, the Court had to limit the death penalty to a discrete and narrow category of felony murder defendants based on its estimation of which category would best effectuate the goals of retribution and deterrence. The Enmund Court stressed that the propriety of the death penalty must be measured in light of Enmund's own conduct. The Tison Court added that historically, the individualized determination incorporates an assessment of the mental state with which the defendant commits a crime, because a more culpable mental state merits a more severe punishment. In Woodson v. North Carolina, , the Court had struck down a mandatory death penalty statute because it failed to provide for individualized consideration at sentencing. The rule fashioned by Enmund and Tison accommodated this concern by ensuring that only felony murder defendants who had a sufficiently culpable mental state received the death penalty.In an earlier case the Court had remarked that "capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation." The Tison rule retreats from this belief with its implicit assessment that the death penalty can deter even those who act recklessly. "A narrow focus on the question of whether or not a given defendant intended to kill... is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers." In the Court's estimation, "reckless indifference to the value of human life may be every bit as shocking to the moral sense as an intent to kill." Imposing the death penalty on a major participant in a felony who exhibits reckless indifference to human life is justified because of the interest in expressing retribution; imposing it on someone who intends to kill serves deterrence.
Justice Brennan on those who do not intend to kill
Justice BrennanWilliam J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
concurred in the result in Enmund but dissented in Tison because he believed that there was a measurable difference between one who acts intentionally and one who acts merely recklessly. Both cases had one crucial fact in common -- neither Enmund nor the Tison brothers had committed an act of murder. Enmund had been in the getaway car; the Tison brothers had been fetching a jug of water for the Lyon family. If the death penalty is to be reserved for the worst murderers, Brennan believed in maintaining the distinction between an intentional act and a reckless one. "It is precisely in this context -- where the defendant has not killed -- that a finding that he or she nevertheless intended to kill seems indispensable to establishing capital culpability." Yet the law had traditionally regarded reckless behavior to be less blameworthy than intentional behavior, because it recognizes the "freedom of the human will an a consequent ability and duty of the normal individual to choose between good and evil." Because Enmund had not intended to kill the Kerseys, the Court had struck down his death sentence as not measurably contributing to either the goal of retribution or of deterrence. For Brennan, then, it was incongruous for the Court to hold in Tison that putting someone to death who had acted recklessly would.
Brennan also faulted the Court for ignoring the states that had abolished the death penalty altogether when counting the states that authorized the death penalty for felony murder. "It is critical to examine not simply those jurisdictions that authorize the death penalty in a given circumstance, but those that actually impose it." None of the 65 executions that had taken place after Enmund were carried out on a felony murderer who had not killed or intended to kill (as determined by a jury).