Felony murder and the death penalty
From Wikipedia, the free encyclopedia
The Eighth Amendment does not prohibit imposing the death penalty for felony murder. The Supreme Court 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.
Contents |
[edit] Enmund v. Florida
Enmund was a 5-4 decision in which the 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. While Enmund sat outside in the getaway car, his accomplices Sampson and Jeanette Armstrong rang the doorbell of Thomas and Eunice Kersey, who lived at a farmhouse in central Florida. When Thomas Kersey answered, Sampson Armstrong held him at gunpoint while Jeanette took his money. Eunice came out with a gun and shot Jeanette, wounding her. Sampson shot back and killed both of the Kerseys. The Armstrongs took all the Kerseys' money, then they went back to the getaway car Enmund was driving.
Enmund and the Armstrongs were indicted for first-degree murder and robbery. The judge instructed the jury that, under Florida law, killing a human being while engaged in the perpetration or in the attempt to perpetrate a robbery is first-degree murder. Enmund and Sampson Armstrong were convicted of first-degree murder. At a separate penalty hearing, the trial judge found that the murders were committed for pecuniary gain and were especially heinous, atrocious, or cruel, and that no statutory mitigating factors applied, and then sentenced Enmund to death. On appeal the Florida Supreme Court rejected Enmund's contention that his death sentence was inappropriate because he did not kill or intend to kill the Kerseys.
Justice White ruled that the Eighth Amendment forbade Florida from imposing the death penalty on an offender such as Enmund who "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed."
[edit] Tison v. Arizona
Tison, like Enmund, was a 5-4 decision in which the Court qualified the rule it set forth in Enmund. Just as in Enmund, the Tison Court applied the proportionality principle to conclude that the death penalty was an appropriate punishment for a felony murderer who was a major participant in the underlying felony and exhibited a reckless indifference to human life.
This case stems from an infamous prison break during the summer of 1978. Gary Tison was serving a life sentence at the Arizona State Prison in Florence for killing a prison guard, and his wife and three sons planned to break him and his cellmate Greenawalt out. On July 30, 1978, they entered the prison with an ice chest full of guns, locked the visitors in a closet, and freed Gary Tison and Tison's cellmate. The group hid out in an isolated house for two days, and then they made their way toward Flagstaff in a white Lincoln. Along the way, one of the Lincoln's tires blew out, and so the group decided to flag down a car and steal it. Tison's son Raymond flagged down a passing car while the elder Tison, the other two Tison boys Donald and Ricky, and Greenawalt laid in wait. Eventually the Lyons family -- John, Donnelda, two-year-old Christopher and fifteen-year-old Theresa -- stopped to assist.
While Raymond was showing John Lyons the flat tire, the other Tisons and Greenawalt emerged from the brush. Raymond forced the Lyons into the Lincoln, and then he and his brother Donald drove the Lincoln down a service road. Meanwhile, the other Tisons transferred their belongings into the Lyons' car, keeping the Lyons' money and guns. Gary Tison shot out the radiator on the Lincoln, and forced the Lyonses out. John Lyons began begging Gary Tison for his life; Gary Tison mentioned he was "thinking about" killing the Lyonses. Gary told Raymond and Ricky to go back to the Lyons' car and get some water. According to Raymond, while they were gone, Gary started shooting the Lyonses; according to Ricky, the shooting began once they returned with the water. Both agreed that they had returned in time to watch the elder Tison and Greenawalt kill the Lyonses.
Several days later, the Tisons and Greenawalt were apprehended at a police roadblock. A firefight broke out. Donald Tison was killed at the scene; Gary Tison was wounded and escaped into the desert where he later died. The two remaining Tison brothers were later tried individually for capital murder in the deaths of the Lyonses. The murder charges were predicated on Arizona's felony murder statute, which provided that killings that occurred during a robbery or kidnapping were first-degree, death-eligible murder. The Tison brothers were convicted. At a separate sentencing hearing, three aggravating factors were proved -- the Tisons had created a grave risk of death to others, the murders were committed for pecuniary gain, and the murders were especially heinous, cruel, or depraved. The Arizona Supreme Court upheld their death sentences. Then the Supreme Court decided Enmund. The Tison brothers brought a collateral attack on their sentence, claiming that Enmund required their death sentences to be struck down. The Arizona Supreme Court rejected this argument, asserting that the dictates of Enmund had been satisfied because the intent requirement of Enmund could be inferred from the fact that death was a foreseeable result of participating in a dangerous felony.
Justice O'Connor concluded that the death penalty would be appropriate for a murder like the one the Tisons had been convicted of if it could be shown that the defendant was a major participant in the underlying felony and had acted with reckless indifference to human life.
[edit] Proportionality and Felony Murder
The Court's proportionality principle has three components, two of which are objective 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.
[edit] Legislative Judgments of the States
In Coker v. Georgia, , 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.
[edit] 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 defendant 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.
[edit] 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.
[edit] Those Who Do Not Intend to Kill Do Not Deserve the Death Penalty
Justice Brennan 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.
