Executing those who do not kill: a categorical approach to proportional sentencing.

• Author: Trigilio, Joseph

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.

TABLE OF CONTENTS INTRODUCTION I. THE SUPREME COURT'S PRE-TISON PROPORTIONALITY CASES A. Gregg v. Georgia: The Court's First Application of the Two-Part Proportionality Analysis in a Capital Case B. Coker v. Georgia: A Death Penalty for Adult Rape Fails the Two-Part Proportionality Analysis C. Enmund v. Florida: The Court Addresses the Proportionality of Executing a Felony-Murder Accomplice II. THE TISON TRILOGY: ABRIDGING THE ESTABLISHED PROPORTIONALITY ANALYSIS A. Tison's Altered Proportionality Analysis B. Stanford v. Kentucky: Court Approves Executing Juvenile Offenders C. Penry v. Lynaugh: Court Approves Executing the Mentally Retarded III. RESURRECTING THE CATEGORICAL APPROACH TO PROPORTIONALITY A. Atkins v. Virginia 1. Objective Indicia 2. Subjective Analysis B. Roper v. Simmons 1. Objective Indicia 2. Subjective Analysis C. Kennedy v. Louisiana 1. Objective Indicia 2. Subjective Analysis D. Distilling the Revitalized Proportionality Analysis 1. The Components of the Objective Indicia Analysis 2. Considerations Governing the Subjective Analysis IV. REVISITING TISON: EXAMINING THE PROPORTIONALITY OF DEATH SENTENCES OF FELONY-MURDER ACCOMPLICES UNDER THE RESURRECTED PROPORTIONALITY ANALYSIS A. Objective Indicia B. Subjective Analysis 1. A Categorical Approach to Felony-Murder Accomplices 2. The Intent Requirement of Retribution and Deterrence CONCLUSION APPENDIX INTRODUCTION

On August 14, 1996, near San Antonio, Texas, Kenneth Foster joined his friends Mauriceo Brown, DeWayne Dillard, and Julius Steen in a night of drinking and smoking marijuana. (1) In the course of the night, they committed as many as two armed robberies. (2) Later, with Foster at the wheel, they began tailing two cars driven by Michael LaHood and Mary Patrick. (3) Brown got out of the car, told Patrick to go inside, began fighting with LaHood, and eventually drew a gun and shot him. (4) Foster anxiously tried to drive away, but he was talked into staying by Dillard. (5) The group was soon arrested. (6) Brown, the man who shot LaHood, eventually admitted to the murder and was tried and sentenced to death. (7) Dillard and Steen, on the other hand, were offered plea agreements. (8) Foster was not so fortunate. He was tried jointly with Brown and sentenced to death even though the prosecution conceded that he neither intended to kill Michael LaHood nor fired a single shot. (9)

As Foster's execution date approached, outrage in the community--both locally and internationally--grew intense. (10) Many wondered how a man who had no intention of taking a life and who in fact did not take a life, could have his life taken by the State. (11) While many blamed a perceived appetite for executions in Texas, Foster's death sentence for a murder he did not commit or intend to commit was condoned by the United States Supreme Court almost two decades earlier in Tison v. Arizona. (12) In Tison, the Supreme Court held that an accomplice to a felony who neither kills nor intends to kill may be constitutionally executed for a killing committed by one of his co-felons so long as the accomplice is a major participant in the underlying felony and acts with a reckless disregard for human life. (13)

Despite the constitutionality of Foster's execution, the Governor of Texas commuted Foster's sentence to life in prison hours before the time appointed for his execution. (14) The Governor's political decision spared Foster from being one of the very few individuals executed in the United States after having been convicted of capital murder despite neither killing nor intending to kill anyone.

The Texas Governor's decision to commute Foster's sentence is but one indication that the "evolving standards of decency" that place constitutional limitations on the use of the death penalty under the Eighth Amendment no longer permit the State to execute felony-murder accomplices who neither kill nor intend to kill. (15) While the change in the law affecting this standard requires overruling Tison, there are many reasons to believe the time is ripe for doing so.

Tison leads a trilogy of cases, including Stanford v. Kentucky (16) and Penry v. Lynaugh, (17) that represent a sharp break from a tradition of careful scrutiny on proportionality that considers both objective and subjective criteria in determining whether a certain category of defendants is constitutionally eligible for a death sentence. In the last decade, however, the Court has overturned both Stanford and Penry, leaving Tison as the last case standing in this aberrational jurisprudential line. The Court's recent proportionality cases, Atkins v. Virginia, (18) Roper v. Simmons, (19) and Kennedy v. Louisiana, (20) rejuvenate the Court's earlier proportionality precedents and render Tison questionable authority.

Since Tison, significant changes in state capital punishment authorization schemes have limited the availability of the death penalty for felony-murder accomplices who neither kill nor intend to kill. Capital punishment for this category of defendants is no longer anywhere close to approaching the majority rule. In addition, the Court's contemporary analysis resurrects culpability as the touchstone for determining whether the use of the death penalty is justified by the penological goals of retribution and deterrence. In consideration of the changes at the state level, representing both objective indicia of evolving standards and a renewed focus on culpability, Tison's rule that felony-murder accomplices are death eligible under the Eighth Amendment regardless of their intent to kill should be abrogated. (21) This Article explores the evolution of the Eighth Amendment proportionality analysis adopted by the Court and how that evolution impacts the constitutionality of executing felony-murder accomplices. (22) Part I provides the historical background of the Court's Eighth Amendment analysis before Tison v. Arizona. Part II examines the departure that occurred with the Tison trilogy. Part HI looks at the Court's return to the pre-Tison approach to proportionality and implicit rejection of Tison. Finally, Part IV revisits the Tison rule, surveying both the authorization and the application of the death penalty to felony-murder accomplices in all fifty states and the federal government, and discusses how its use is no longer justified by penological goals absent an intent-to-kill requirement. To strengthen our claim of a significant shift in the national consensus, an appendix at the end of this Article provides a brief analysis of the capital sentencing schemes of all thirty-five states that permit the death penalty as it relates to the authorization of capital punishment for felony-murder accomplices. (23)

1. THE SUPREME COURT'S PRE-TISON PROPORTIONALITY CASES

   The Eighth Amendment forbids the state from imposing punishments that are "cruel and unusual." (24) This mandate has been interpreted by the Court to ensure that a defendant's punishment is proportionate to the crime for which he is convicted and that the standards by which a court determines the proportionality of a punishment are constantly evolving along with our society. The Court first discussed the evolving nature of the Eighth Amendment almost a century ago in Weems v. United States, identifying an American belief that "punishment for crime should be graduated and proportioned to offense." (25) In doing so, the Court acknowledged that the framers of the Eighth Amendment deliberately left "cruel and unusual punishment" without a static definition. (26) Instead, the Amendment was said to be enacted from an "experience of evils," that should not "be necessarily confined to...