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November 18, 2011

"Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing"

The title of this post is the title of this notable new article from the latest issue of the American Criminal Law Review (which has lots of sentencing coverage) by federal public defenders Joseph Trigilio and Tracy Casadio. Here is the abstract:

For over a century, the Supreme Court has crafted a specific analysis for determining whether a particular sentence is proportionate to the crime under society’s norms and to the culpability of the offender.  Such an analysis informs whether a sentence is “cruel or unusual punishment” and thus unconstitutional.  In the capital context, the Court has examined the proportionality of a death sentence for the crimes of murder and rape.  It has also examined the penalty in light of specific categories of defendants, including non-triggermen accomplices, the mentally retarded, and juvenile offenders.

Over twenty years ago, the Court decided a trilogy of cases that appeared to limit the capacity of proportionality principles to regulate death penalty eligibility.  That trilogy of cases began with Tison v. Arizona, which found that a death sentence was proportionate for an offender who neither killed nor intended to kill, but who was a major participant in a felony and acted with a reckless disregard for life.  Around the same time, the Court found that a defendant’s status as a juvenile offender or a mentally retarded person —characteristics impacting culpability — did not render the death penalty disproportionate.

In the beginning of the twenty-first century, however, the Court altered its analysis and ruled that the execution of the mentally retarded and juvenile offenders is categorically disproportionate to our society’s evolving norms and to the offender’s level of culpability. Yet, having reversed two of its prior decisions, the Court has not had occasion to review the holding of Tison.  This Article prepares the ground for that challenge.  It argues that, under the proportionality analysis articulated in Atkins v. Virginia, Roper v. Simmons, and Kennedy v. Louisiana, the contemporary “standards of decency” require a further narrowing of death penalty eligibility for those who do not kill nor intend to kill.  This conclusion is supported by a survey of the death penalty schemes in all fifty states as they apply to felony-murder non-triggermen, the extraordinarily low number of defendants in this category who are either on death row or who have been executed, international law, and a reasoned analysis of culpability principles as applied to felony-murder accomplices.

November 18, 2011 at 10:29 AM | Permalink


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Yet another dumb law review article trying to advocate the further mutilation of society's right to impose the death penalty.

If the death penalty can be imposed on accomplices, then accomplices are motivated to prevent killings. That's reason enough to keep it.

Posted by: federalist | Nov 19, 2011 12:36:53 PM

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