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 deferrable 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.
That a defendant could be executed for causing death inadvertently might seem absurd. Nevertheless, the great majority of American courts to have considered the question have concluded that the Eighth Amendment of the U.S. Constitution permits such executions. In so doing, they have interpreted Supreme Court doctrine to allow capital punishment of any person who causes death during the commission of a felony, regardless of that person's mental state with respect to the resultant death. Under this reading of precedent, the following defendants are eligible for the death penalty: the driver of a getaway car who kills a jaywalker, the burglar who starles an elderly homeowner and causes a fatal heart attack, and the robber who unknowingly punches a hemophiliac.
Such counterintuitive results become conceivable when eligibility for the death penalty is untethered from the defendant's culpability. This disconnect results from an overly mechanical interpretation of the Supreme Court's two key cases applying the Eighth Amendment to the felony murder context: Enmund v. Florida (1) and Tison v. Arizona. (2) Although these cases have been read to permit execution of nonculpable killers, the holdings of both decisions impose a high level of culpability for execution of accomplices in felony murder, on the ground that death should be reserved for the most culpable offenders. In overturning the death sentence of an accomplice in a fatal felony, the Enmund majority stated that a participant in a fatal felony is ineligible for capital punishment if he "does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." (3) In upholding the death sentences of two accomplices in a fatal felony, the Tison majority permitted capital punishment of felons "whose participation is major and whose mental state is one of reckless indifference to the value of human life." (4)
Thus, subsequent readings of Enmund and Tison that permit the execution of actual killers regardless of culpability are largely based on what they did not say about a question that was not before them. To be sure, the Enmund majority did not say that those who "kill" are eligible only if they intend death, but neither did it say they are eligible regardless of their mental state. The Tison majority concluded that Enmund "held" that capital punishment could be imposed on "the felony murderer who actually killed," (5) but only "when the circumstances warranted." (6) Because both cases concerned accomplices of intentional killers, neither Court specified whether those who "killed" included all who caused death, by any means, and with any mental state. Yet most lower courts have assumed that anyone causing death in a predicate felony is death-eligible, regardless of any culpability.
Omitting consideration of a culpable mental state is at odds with a central background principle of Eighth Amendment law: that we may only execute people to advance deterrence and retribution and that neither can be furthered if the person does not act with culpability. Culpability is the essential inquiry when narrowing the class of murderers to those who are most deserving of death, yet a mechanical reading of the Enmund-Tison test seems to allow for execution without it. This is the tension--familiar to any lawyer--between the mechanical application of a legal rule and fidelity to the rule's animating justifications.
In this Article, we both diagnose this problem (previously unremarked by legal scholarship) and attempt to solve it. First, we summarize the operation of felony murder rules and the considerations that might justify severe penalties for felony murder. Next, we examine the further problem of justifying capital punishment of felony murder as proportionate under the Eighth Amendment. At this point, the essential conundrum becomes apparent--the Eighth Amendment appears to require substantial culpability for capital punishment, yet Enmund and Tison appear to require culpability only for some capital murders. We then discuss two ways to read these cases. One possibility is to read them mechanically, permitting execution of one who causes death inadvertently in committing predicate felonies. Another is to understand that the conflict between this result and Eighth Amendment principles invoked in these very cases invites a more reflective approach. This more reflective interpretation would acknowledge the inadvertent actual killer as an open question, to which Eighth Amendment principles remain to be applied.
After presenting this dilemma, we review the application of Enmund and Tison in the lower courts, showing how the reflective interpretation we recommend was soon displaced by the mechanical interpretation that now prevails. In the years immediately after Enmund was decided, a number of courts assumed that the principles invoked in that case required an assessment of the culpability of killers as well as their accomplices. Today, however, rather than considering how Eighth Amendment principles apply to capital punishment of inadvertent causation of death, most courts simply presume actual killers to be death-eligible, citing Enmund and Tison.
The mechanical interpretation of these cases has taken three forms. Some courts read these cases as explicitly holding that the Eighth Amendment permits execution of inadvertent killers. (7) This unjustifiably broadens the holdings of these cases, which left open the question of the culpability required for execution of actual killers.
Other courts read the holdings of these cases more narrowly, as not applying to actual killers. Yet they also ignore the Eighth Amendment principles justifying these holdings. In treating Enmund and Tison as inapplicable to killers, these courts treat the Eighth Amendment itself as inapplicable. (8)
A third group acknowledges that execution of inadvertent killers may offend Eighth Amendment principles, but reasons that discretionary decisionmaking will generally prevent such executions. (9) Indeed, we will see that most death sentences upheld on the ground that felony murderers are death-eligible regardless of culpability could also have been justified on the ground that the defendant killed recklessly. Yet the rarity of death sentences for inadvertent killing only reinforces the claim that such sentences are disproportionate. (10)
Having shown the dominance of the mechanical interpretation, we next show why it is wrong--not because it offends our moral views, but because it ignores the doctrinal pronouncements of the Supreme Court. The Court's own decisions have required that capital punishment serve retribution and deterrence by punishing culpable conduct, and have reserved death for the worst crimes and the most culpable criminals. These decisions authorize lower courts to condition capital punishment on a culpable mental state of at least reckless indifference to human life for all defendants convicted of felony murder, including actual killers. (11) Yet, a better solution is for the Supreme Court to finally answer the question left open in Enmund and Tison, by making such a requirement explicit.
Why should the Supreme Court bother to bar capital sentences for inadvertent killers if, as we concede, such sentences are rarely imposed and even more rarely executed? There are two reasons. First, because the threat of disproportionate capital punishment can force a plea to a noncapital charge. Second, because even one disproportionate execution is one too many. Eighth Amendment violations need not be frequent to be worth correcting and preventing. Executions are--by design--rare. (12) Disproportionate execution is an important problem, not because it is a big problem, but because it is a matter of life and death.
FELONY MURDER LIABILITY AND PROPORTIONALITY
Eighth Amendment law justifies capital punishment, and its imposition in particular cases, on the basis of two purposes only: retribution and deterrence. (13) It limits capitally punishable offenses against persons to murder, deeming no other crime sufficiently culpable or harmful to merit this extreme penalty. (14) Finally, it conditions death on proof of at least one circumstance distinguishing the offense as worse than other murders. (15)
Accordingly, determining when Eighth Amendment principles justify capital punishment of felony murder requires understanding what felony murder involves and how it compares with other forms of murder.
Felony murder rules impose murder liability on those who cause death (usually foreseeably) in the commission or attempt of certain felonies. These felonies are usually either enumerated by statute or limited to those committed in a way foreseeably dangerous to human life. (16) Most enumerated predicate felonies inherently involve violence or danger to...