Capital Punishment Limits

Capital Punishment Limits

The rules covered so far decide who is guilty of felony murder: the felon who kills, the co-felon whose act is attributed to every participant in the common design, and, on the agency view, no one for a death inflicted from the resisting side of the crime. A separate question arises once guilt is settled, and it concerns the penalty. Because felony murder substitutes the intent to commit the felony for malice toward the death, a conviction says nothing about whether the defendant killed, meant to kill, or even expected that anyone would die.¹ For most punishments that gap is tolerable. For death it is not, and the Cruel and Unusual Punishment Clause of the Eighth Amendment, which is directed in part against punishments greatly out of proportion to the offense charged, supplies a limit on the sentence that leaves the conviction in place.² This section follows that limit in three steps: the rule that bars death for a participant who neither killed nor intended a killing, the later decision that restores death eligibility for a major participant who acts with reckless indifference to human life, and the point that the whole inquiry operates on the sentence alone. The first step begins with a man waiting in a car.

The Enmund Limit

In Enmund v. Florida a jury found Earl Enmund guilty of two counts of first-degree murder and one count of robbery and recommended death, and the trial judge sentenced him to death on each murder count, finding among the aggravating circumstances that the killings occurred while he was an accomplice in an armed robbery.³ The Florida Supreme Court acknowledged that no direct evidence placed Enmund at the back door of the victims' home when the elderly couple was killed, but it reasoned that the jury could have concluded he waited in a car by the side of the road, a few hundred feet away, to help the robbers escape with the money.⁴ That made him a principal in the second degree, constructively present and aiding the robbery, which sufficed for first-degree felony murder because the felony-murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of a co-felon, the attribution principle from the preceding section.⁵ The Florida court also rejected Enmund's argument that, because the evidence did not show an intent to take life, the Eighth Amendment barred a death sentence.⁶

The United States Supreme Court granted review on a question confined to the penalty: 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.⁷ The Court answered no, and later decisions describe Enmund as overturning the capital sentence of a defendant who aided and abetted a robbery in which a murder was committed but who did not himself kill, attempt to kill, or intend that a killing take place.⁸ Each of those three alternatives ties the death to something the defendant personally did or chose: taking the life, trying to take it, or meaning for it to be taken. When none of the three is present, the only link between the defendant and the death is the legal one that felony murder and accomplice liability create, and the Enmund limit holds that this link cannot carry a death sentence.

Proportionality supplies the reason. In capital cases it asks both whether legislatures and juries accept the penalty for the offense and whether the magnitude of the punishment is related to the harm the defendant inflicted and to the defendant's own blameworthiness.⁹ The second question presses hardest in felony murder, because the rule dispenses with any mental state toward the death. One conviction can therefore cover the defendant who fired, the defendant who ordered the shooting, and the defendant who waited down the road and never meant for anyone to die, and it treats them alike because the felony supplies the malice for all of them.¹⁰ Death is the penalty for which that sameness is least defensible. In Coker v. Georgia the Court called death "unique in its severity and irrevocability" and held it an excessive penalty for a rapist who, as such, does not take human life.¹¹ Enmund drew the same moral line between a murderer and a robber, acknowledging that robbery is a serious crime deserving serious punishment while denying that it resembles death in severity and irrevocability.¹²

The Court did not rest on moral reasoning alone. It looked to the history of the punishment, legislative judgments, international opinion, and the sentences juries had actually imposed, and it treated those indicators as pointing away from executing a participant who had not killed.¹³ Eight jurisdictions authorized death solely for participation in a robbery during which an accomplice committed murder, and six defendants between 1954 and 1982 had been sentenced to death for felony murder without personally committing the homicidal assault, figures the Court said weighed on the side of rejecting capital punishment for the crime.¹⁴ The petitioner's survey of reported executions for homicide since 1954 found that 339 of the 362 persons executed had personally committed the homicidal assault, two others had someone else commit it on their behalf, and only six were non-triggermen.¹⁵ Consensus of this kind is not dispositive, because the Court also applies its own understanding of the Amendment's text, history, and purpose.¹⁶

The rule being limited has a long pedigree, which is why the question was contestable. The felony-murder doctrine and its capital penalty originated hundreds of years ago and were a fixture of English common law until 1957, when Parliament classified an unintended killing during a felony as manslaughter; the doctrine crossed to the American colonies and continued largely unabated into the twentieth century, although legislatures often confined capital felony murder to enumerated violent felonies.¹⁷ The age of the practice is the best argument for permitting the penalty, and the English abandonment and the American narrowing to violent felonies are the best evidence that its justification has weakened.

Who took life fixes the reach of the limit. Enmund, on the Florida court's own account, was waiting down the road, so the limit protected him. In Gregg v. Georgia, by contrast, the defendant admitted shooting the two men who had given him a ride and then robbing them, and the trial judge submitted the murder counts to the jury on both felony-murder and non-felony-murder theories.¹⁸ Georgia's statute made it murder when a person causes a death in the commission of a felony "irrespective of malice," but a defendant who fires the shots has taken life himself, and the Enmund limit has nothing to say about him.¹⁹ The fact that moves the answer is whether the defendant personally killed, attempted to kill, or intended a killing, and the conviction under the felony-murder rule is the same on both sides of that line.

Major Participation and Reckless Indifference

The Enmund limit does not impose a general requirement of intent to kill on every capital felony-murder sentence. In Tison v. Arizona the defendants were two brothers, Ricky and Raymond Tison, aged 20 and 19 and with no prior felony records, whose father, Gary Tison, and another man, Randy Greenawalt, murdered the Lyons family and Theresa Tyson while escaping from prison.²¹ The brothers did not pull the triggers, and the Arizona Supreme Court recognized that they did not specifically intend that the victims die or plot in advance that the killings would happen. It nonetheless found that they were present when the homicides occurred as part of the escape and that the deaths would not have occurred but for their assistance, and the trial judge had found their participation "very substantial."²²

The Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement."²³ The Tison standard thus adds a second route to death eligibility beside the three Enmund alternatives, and it has two parts that can be proved together. Some felonies are so dangerous that any major participant necessarily shows reckless indifference, and even where major participation does not by itself establish that mental state, the fact often provides significant support for the finding.²⁴ On the record before it, the Court observed that the Arizona courts had clearly found major participation, and it vacated the judgments and remanded for a determination of reckless indifference.²⁵

The reasoning rejects the premise that an intent to kill is the only mental state that makes a murderer deserving of death. A focus on that intent is a poor way to pick out the most culpable murderers, because some who intend to kill act in self-defense or with another justification, others kill under provocation and are often thought undeserving of death, and some who do not intend death are among the most dangerous of all, such as the person who tortures another without caring whether the victim lives or the robber who shoots a victim while utterly indifferent to whether the victim dies.²⁶ Knowingly engaging in criminal activity known to carry a grave risk of death is, on this view, a highly culpable mental state in its own right.²⁷ The Court also contrasted a participant who merely sits in a car away from the scene as a getaway driver with the brothers, who were actively involved in every element of the kidnapping and robbery and present throughout the sequence that ended in the killings.²⁸

Neither Enmund nor the Tison brothers fired a shot, so the trigger cannot explain the different outcomes. The difference lies in how much each did and what attitude toward human life that conduct reveals. A driver waiting in the distance shows little of either, while a participant who stays through a violent felony and assists in holding the victims captive while the homicides occur, as the Arizona court found the brothers did, shows both.²⁹

The dissent in Tison states the competing view. It described felony murder as imposing liability for any murder in the course of the felony whether or not the felon committed, attempted, or intended it, and called the doctrine a "living fossil" from an era when all felonies were punishable by death, so that the felon's state of mind toward a killing was superfluous.³⁰ It added that in most American jurisdictions and in virtually all European and Commonwealth countries a felon cannot be executed for a murder the felon did not commit or specifically intend or attempt to commit, and that Arizona's sentence on the brothers rested on a killing they neither committed nor intended.³¹ Earlier separate opinions in Lockett v. Ohio preview the dispute from both directions. One opinion warned that a flat intent-to-kill requirement would force courts to decide what intention a State may attribute to a participant who sits in the getaway car knowing a loaded gun will be brandished, or to a lookout who intended only that the gun be brandished but never discussed its use with the shooter, and would require an elaborate constitutional definition of the required mental state.³² A dissent in the same case saw no basis in the Eighth Amendment for such a requirement and noted that about half the States had not foreclosed death for those who did not intend to cause death.³³

Conviction Versus Sentence

Everything in this section bears on the death sentence and leaves the conviction where it was. Enmund and Tison did not change what the prosecution must prove to establish felony murder, which remains the felony, a killing connected to it, and the intent the felony itself requires, because that intent supplies malice.³⁵ Arizona's statute, as quoted in Ring v. Arizona, shows how plainly the offense is defined: a killing in the course of and in furtherance of an enumerated felony is first-degree murder and requires "no specific mental state other than what is required for the commission of any of the enumerated felonies."³⁶ The structure of capital cases follows the same split. Georgia tried Troy Gregg in a guilt stage and a separate sentencing stage, and Arizona, after a first-degree murder conviction that may rest on felony murder, holds a separate sentencing hearing at which the sentence is chosen between death and life imprisonment.³⁷

Ring shows the split at work. A jury deadlocked on premeditated murder and convicted Timothy Ring only of felony murder in the course of an armed robbery in which Magoch was killed.³⁸ The Arizona Supreme Court later summarized that the trial evidence failed to prove beyond a reasonable doubt that Ring was a major participant in the robbery or that he actually killed Magoch, and that for all the trial evidence showed he did not participate in, plan, or even expect the killing.³⁹ The felony-murder conviction rested on the robbery and the death, but Arizona law barred a death sentence unless further findings were made. At sentencing the trial judge recognized that, because the conviction was for felony murder, Ring was eligible for death only if he was the actual killer or a major participant in the armed robbery who exhibited reckless disregard or indifference for human life, and the judge cited Enmund and Tison for that rule.⁴⁰ Who must make those findings is a separate constitutional question that this chapter does not take up.

Students lose this issue when they read Enmund as holding that the non-killing participant is not guilty of murder. The question presented there concerned only whether death is a valid penalty, and the reasoning concerned the proportion between punishment and personal blameworthiness.⁴¹ A participant outside both the Enmund and Tison categories therefore remains a murderer in the eyes of the law and faces whatever lesser punishment the statute provides, which in the Arizona and Georgia schemes is life imprisonment.⁴²

Steps three and four do the real work on an exam, because the stem usually tells you the defendant did not fire. The facts to weigh are what the defendant did during the felony and what the defendant knew about its risk.