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Guyora Binder, Brenner Fissell, & Robert Weisberg, Capital Punishment of Unintentional Felony Murder, 92 Notre Dame L. Rev. 1142 (2017).

Guyora Binder, Brenner Fissell, and Robert Weisberg combine to address a significant flaw in the application of Supreme Court’s Eighth Amendment jurisprudence—the application of the Eighth Amendment to unintentional felony murder—in their recent Notre Dame Law Review article. Specifically, the authors argue that lower courts have misread the applicable Supreme Court precedents, Edmund v. Florida and Tison v. Arizona, to reach the unfortunate conclusion that an offender committing an unintentional felony murder is eligible for capital punishment.

Both cases address the application of the Eighth Amendment to felony murder. Enmund held that Florida’s imposition of the death penalty for felony murder violated the Eighth Amendment because the state failed to prove that Enmund killed or attempted to kill. Tison, by contrast, narrowed the holding of Enmund by finding that felony murder could serve as the basis for a death sentence in certain cases and not violate the Eighth Amendment. Particularly, the Tison court held that individuals who are major participants in a crime and demonstrate reckless indifference could receive the death penalty even though they did not kill or attempt to kill the victim.

The core distinction that the authors draw rests on what they deem the unnecessarily mechanical reading that lower courts give to these cases. The authors argue that the lower courts that have applied these precedents have erred by ignoring the culpability requirement imbedded in the decisions, and by allowing death sentences for felony murders where the defendant exhibited no culpability for the death. In this vein, the authors emphasize the failure of courts to account for the long-held animating principle of the Eighth Amendment—that sentences are proportionate in satisfying the purposes of retribution and/or deterrence.

Rather than read the precedents as isolated decisions, the authors make the compelling case that courts ought to read the cases in the context of this animating principle, and require proof of some culpability to sentence a felony murderer to death. They propose recklessness as the appropriate mens rea for achieving the level of proportionality required by the Eighth Amendment.

Thus, the authors read Enmund and Tison together as distinguishing ordinary felony murder, which requires no intent to kill, from felony murder accompanied by a mens rea of recklessness toward the life of the victim. A proper reading of the cases, according to the authors, would mean that cases in the former category are ineligible for death under the Eighth Amendment, while death sentences in cases in the latter category would be constitutional.

Perhaps, though, the authors do not go far enough. In non-felony murder cases, a mens rea of recklessness seldom if ever should warrant a death sentence. Felony murder should be no different.

Without overruling Tison, though, it seems impossible to rule out the death penalty for felony murder altogether. But one can read Enmund as the bright-line rule, with Tison as the extreme, distinguishable exception. Under such an approach, felony murder for a death sentence would violate the Eighth Amendment even in cases of reckless murder, absent extraordinary facts.

The unusual factual posture of Tison lends credence to such a reading. Gary Tison cruelly and unnecessarily murdered an altruistic family, including two children under the age of three. Tison, though, died during the ensuing manhunt, and the court was thus unable to give him the death penalty. Tison’s two sons received the death penalty for felony murder, despite their lack of participation in the actual killing. They had helped their father escape from jail, but were not aware that he would kill the family and were not immediately present when he did. Indeed, the Arizona Supreme Court later set aside their death sentences.

To be sure, the authors are correctly trying to move the lower courts back in the direction of Enmund, and away from Tison, by reading the cases as at least requiring reckless killing. The value of their article comes from its potential to cause lower courts to rethink their application of Enmund and Tison and choose to restrict the current trend of carte blanche use of felony murder as a basis for imposing death sentences on offenders that did not intend to or attempt to kill.

Finally, their useful article also underscores a deeper problem in both the Supreme Court and the lower courts—the failure to apply the Eighth Amendment to cases involving excessive and disproportionate punishments. The felony murder disproportionality that the authors eloquently write about—imposing the death penalty for killings with a mens rea of negligence or less—is but one of example of where the Court has failed to intervene.

Juvenile life-without-parole sentences provide another obvious example, with the United States being the only country in the world that allows such sentences. Many adult life-without-parole sentences also seem obviously excessive, as many are the product of the abolition of parole in some states and thus are essentially conversions of fifteen-year sentences to death sentences. Many mandatory sentences (whether short or long) also deserve constitutional scrutiny, both for the excessive nature of the penalty and for the denial of individualized consideration of mitigating circumstances.

Unlike with the First Amendment, Fourth Amendment, and the Fourteenth Amendment, the Court has long displayed a hesitancy to use the Eighth Amendment to restrict the power of the state governments, even when such punishments are excessive and disproportionate. Until recently, the Court’s application of the Eighth Amendment to limit non-capital punishments has been virtually non-existent. Perhaps the backlash to Furman v. Georgia explains part of the Court’s hesitancy, as well as its flawed decision to use a majoritarian evolving standard of decency to define what punishments unconstitutionally infringe on the rights of the political minority under the Eighth Amendment.

Nonetheless, the Court’s recent application of the Eighth Amendment to juvenile LWOP cases in Graham v. Florida and Miller v. Alabama holds promise. One can only hope that the authors’ work in the Notre Dame Law review will likewise spur the Court to update its Eighth Amendment jurisprudence with respect to felony murder.

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Cite as: William W. Berry III, Rethinking Capital Felony Murder, JOTWELL (February 12, 2018) (reviewing Guyora Binder, Brenner Fissell, & Robert Weisberg, Capital Punishment of Unintentional Felony Murder, 92 Notre Dame L. Rev. 1142 (2017)),