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August 3, 2017

"Capital Punishment of Unintentional Felony Murder"

The title of this post is the title of this recent paper that I just recently came across via SSRN. The paper was authored by Guyora Binder, Robert Weisberg and Brenner Fissell, and here is its abstract:

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment.  This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill.  The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death.

This Article shows that this mechanical reading of precedent is mistaken, because the underlying justifications of Eighth Amendment jurisprudence require a rational selection for death of only the most deserving and deterrable offenders, and this in turn requires an assessment of culpability.  We argue that the Supreme Court should address this open question in Eighth Amendment law and that it should correct the lower courts by imposing a uniform requirement of at least recklessness with respect to death for capital punishment of felony murder.

August 3, 2017 at 03:43 PM | Permalink


Unadulterated BS.

Posted by: federalist | Aug 3, 2017 4:32:16 PM

There is no killing more premeditated and intentional than an execution, except war. Both are state sanctioned.

Posted by: George | Aug 4, 2017 9:14:26 AM

Seventy five pages? Oh boy.

We are dealing with a narrow group: "a defendant who causes a death inadvertently in the course of a felony." Glancing at the article, it suggests it isn't likely to result in many death sentences. It is more likely to be an incentive in plea deals and the like.

But, noting some will disagree, I have an idea that many who support the death penalty would agree that a more direct culpability should be required if you execute them as compared to let's say putting people in a small cage for ten to twenty years.

Posted by: Joe | Aug 4, 2017 10:45:01 AM

more "direct culpability"--isn't that what a jury is for? But aside from that--let's say, in the non-DP scenario,

If the DP is available for felony murder, then it incentivizes felons who act in concert to police each other, and that benefits victims. So why would we categorically bar felony murder as eligible for DP---plus, the line between felony murder and accomplice liability (e.g. a "person who aids, induces or causes another to commit an offense, commits that offense") isn't clear either. The other problem--the identity of the "triggerman" isn't always clear, so you create the possibility of significant underpunishment when people act in concert--why would we incent criminals to act in concert?

So, all in all, Joe's comment about what those who support the DP "would agree" is speculation and likely relies on the fact that most people have only a passing idea of how the criminal law works and why things are the way that they are.

But what does Joe know--he speaks in terms of keeping criminals in the US as being good for the society in certain cases--perhaps that's true, but that begs the question of whether the juice is worth the squeeze--if we have mechanisms for keeping beneficial criminals here, then many will get to stay who aren't beneficial.

Posted by: federalist | Aug 4, 2017 11:44:55 AM

oops, I forgot to finish my first point---let's say three burglars do a home invasion, husband/father resists and two of the burglars beat him up--should the third not be held liable for the assault? Or what if one of the burglars rapes the 16 year old daughter--why wouldn't they all be on the hook for that? They all helped it happen.

Criminal coddlers never cease to amaze . . . .

Posted by: federalist | Aug 4, 2017 11:48:33 AM

more "direct culpability"--isn't that what a jury is for

The jury does determine that in certain respects, applying the law, which restricts their discretion in various respects. This includes the criteria used to execute people. As usual, I'm sorry to say such obvious things, but apparently there is some confusion.

why would we categorically bar felony murder as eligible for DP

I wasn't aware this was the issue at hand. The word "inadvertently" is there, for instance.

Reference is made here to "significant underpunishment." Well, if twenty years in a small cage (subject to the usual issues; Shawshank Redemption was on the other night; that is but a film, but it is not totally fictional) is deemed "coddling criminals," perhaps. But, I think punishments less than death can deter etc. in this context.

is speculation

It's a reasoned judgment of my life time experiences, reading of relevant materials and so forth. As is things federalist and others opine about here. We aren't submitting 75 footnoted essays backing up our analysis.

keeping criminals in the US as being good for the society in certain cases

to be clear, it is undocumented non-citizen criminals. There are lots and lots of "criminals" in this country who after they commit their crimes are productive members of society. A loose use of "immigrant" was used too. But, I know he means not merely "immigrants" but specifically again those open to expulsion. I hope others are as fair as to not latching on to possibly open to confusion phrasing in quickly written blog comments.

not be held liable for the assault

I'm sorry. We are clear that the DEATH PENALTY is at issue here. Not "liability" at all, right?

Posted by: Joe | Aug 4, 2017 1:42:06 PM

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