Constitutional Limits on Punishment

Constitutional Limits on Punishment

The rule studied in this chapter so far answers one question, whether a killing during a dangerous felony is murder. It answers by letting the intent to commit the felony stand in for malice, so the prosecution never has to prove what the felon expected or wanted about the death.¹ That substitution is conclusive for every participant the rule reaches, including one who never touched a weapon. A conviction built this way tells a sentencer that the defendant is guilty of murder, and it tells the sentencer nothing about whether this defendant killed, meant to kill, or foresaw that anyone would die. The harshest punishment therefore raises a second question that the conviction leaves open, which is whether the sentence fits the defendant's own culpability, and the Eighth and Fourteenth Amendments supply the check.²

The question has particular force for this doctrine because of where the doctrine came from. Felony murder and its capital penalty originated hundreds of years ago, remained a fixture of English law until 1957, and in America were often narrowed by legislation that confined capital felony murder to enumerated violent felonies.³ A dissenting opinion in Tison v. Arizona describes the rule as a survivor of an era in which every felony was punishable by death, when the felon's state of mind about the killing was superfluous because the felon could be executed for the felony alone.⁴ The cases below ask when death remains a permissible sentence for a participant whose guilt of murder was established through the felony alone.

The Enmund Rule

In Enmund v. Florida a robbery of an elderly couple at their home ended in the murder of both, and the defendant was not at the back door where the plan unfolded.⁵ The Florida Supreme Court found no direct evidence that he was there, but it accepted the likely inference that he sat in a car by the side of the road a few hundred feet away, waiting to help the robbers escape with the money.⁶ That court reasoned that the felony-murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of a co-felon, treated him as a principal in the second degree who was constructively present and aiding the robbery, and held that this status supported the first-degree felony-murder verdicts.⁷ The jury recommended death, and the trial judge imposed it on each murder count.⁸

The question presented to the Supreme Court concerned the penalty alone: whether death is a valid punishment under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life.⁹ The Court answered that it is not, and it overturned the capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing take place.¹⁰

The reasoning rests on proportionality, the principle that the magnitude of a capital punishment must relate to the harm inflicted on the victim and to the defendant's own blameworthiness.¹¹ That principle had already limited death for crimes that take no life, as in Coker v. Georgia, where death was held excessive for a rapist who, as such, does not take human life.¹² Capital punishment is reserved for offenders whose extreme culpability makes them the most deserving of execution, and individual culpability is the part of the analysis that felony murder skips.¹³ The malice supplied by the felony is the same for the triggerman and for the driver down the road, so the conviction cannot tell a sentencer which of them meant to take a life. Because death cannot be undone, the Constitution asks the sentencer to look at what this defendant did and intended before the penalty is imposed.

Two further points in the Court's reasoning explain why the result came out as it did. The Court repeated the moral distinction between a murderer and a robber, observing that robbery is a serious crime deserving serious punishment but is unlike death in its severity and irrevocability.¹⁴ The objective evidence pointed the same way, since at the time eight jurisdictions authorized death solely for participation in a robbery during which an accomplice committed murder, and only six defendants between 1954 and 1982 had been sentenced to death for felony murder without personally committing the homicidal assault.¹⁵

The holding limits the sentence and leaves the doctrine of felony murder in place. A death sentence was overturned, and nothing in that disposition erases the conviction or bars a lesser punishment.¹⁶ Enmund's codefendant Jeanette Armstrong, tried separately, was convicted of two counts of second-degree murder and one count of robbery and received three consecutive life sentences, a non-capital punishment to which the proportionality objection does not attach.¹⁷ Students lose this issue by reasoning that a valid first-degree felony-murder conviction settles that death is available, when the sentence needs its own showing about the defendant's culpability.

Tison's Major-Participant Standard

The Enmund limit does not protect every defendant who failed to pull a trigger. In Tison v. Arizona two brothers took part in the escape of their father and another inmate from prison, and the escapees killed a family and another person who crossed their path.¹⁹ The brothers did not pull the triggers, did not plot the killings in advance, and did not specifically intend them, but the deaths occurred as part of the escape and the continuous effort to avoid recapture, and the Arizona Supreme Court treated the brothers' lack of a killing role as insignificant.²⁰

The Supreme Court held that major participation in the felony, combined with reckless indifference to human life, satisfies the culpability requirement that Enmund announced.²¹ The reasoning rests on the weakness of an intent-to-kill line. Some who intend to kill are not criminally liable at all, as with self-defense, while some killers who lack intent are among the most dangerous, such as a robber who shoots a victim while utterly indifferent to whether the victim lives.²² Reckless indifference of that kind can shock the moral sense as much as an intent to kill, which is why the common law and modern codes have grouped it with intentional murder.²³ What separates the brothers from Enmund is their involvement. Far from sitting in a car away from the scene, each brother was actively involved in every element of the kidnapping and robbery and was physically present through the whole sequence of events, and the Court found that major participation established and remanded for a determination of reckless indifference.²⁴ The two requirements often overlap, since for some felonies any major participant necessarily shows reckless indifference to the value of life.²⁵

The Arizona statute shows how conviction and sentence separate in practice. In Ring v. Arizona the jury deadlocked on premeditated murder but convicted the defendant of felony murder, and the statute requires no mental state beyond what the enumerated felony requires.²⁶ At sentencing the judge recognized that a felony-murder defendant was eligible for death only if he was the actual killer or a major participant who showed reckless disregard or indifference for human life, and the judge found that Ring was the one who shot the victim.²⁷ The guilty verdict needed nothing about the defendant's mind. The death sentence needed an additional finding about it.

Double Jeopardy and the Felony

Enmund and Tison limit the sentence under the Eighth Amendment. A different rule, grounded in the Fifth Amendment, limits later prosecutions, and it follows from how a felony-murder charge is built. In Harris v. Oklahoma a grocery clerk was shot by the defendant's companion during a robbery, and the defendant was convicted of felony murder.²⁹ The State then convicted him in a separate trial of robbery with firearms. The Court reversed, holding that when conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.³⁰

The mechanism is the structure of the murder charge. The State conceded that every ingredient of the robbery had to be proved in the murder trial, so the robbery was part of what the first jury decided.³¹ The felony therefore operates as a lesser included offense of the killing in the course of it, even though the statute on its face reaches any felony.³² A second trial would make the defendant answer again for what the first established and would let the State refine its proof with each attempt.³³ The bar runs against the second prosecution. It does not disturb the felony-murder liability the first conviction established, and it operates independently of the Eighth Amendment limit on the death penalty.