The felony-murder rule is perhaps the most troubling and controversial surviving relic of the common law of homicide, branding felons as murderers notwithstanding an absence of the sort of culpability otherwise required for a murder conviction.
If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to do so at sentencing, reserving the most severe sentences for those felony-murderers who actually intended to kill. Some states do indeed recognize this distinction for sentencing purposes, but others do not. For those in the latter category, the Eighth Amendment might conceivably provide some protection for relatively low-culpability felony-murderers. The Supreme Court seemed to be moving in this direction in Enmund v. Florida, 458 U.S. 782 (1982), but then in Tison v. Arizona, 481 U.S. 137 (1987), essentially limited Enmund to felony-murderers who lacked any culpability as to the killing and were not even physically present at the time it occurred.
With the Enmund/Tison line of decisions in mind, I thought it quite interesting that the Supreme Court granted cert. last month in two new Eighth Amendment cases presenting contrasting fact patterns that might provide a good platform for further regulation of felony-murder sentencing.
The cases both involve fourteen-year-old murderers sentenced to life without parole. In Graham v. Florida, 130 S. Ct. 2011 (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses. In the two new cases, Miller and Jackson, the Court will consider whether to preclude LWOP sentences for very young juveniles convicted of murder. The Court might simply ban (or accept) LWOP for fourteen-year-olds on a categorical basis, but the two cases also permit (perhaps even invite) the drawing of distinctions between relatively high- and low-culpability defendants. Where Miller seemingly had an intent to kill, and did so in a particularly brutal fashion, Jackson’s role was quite different:
He was walking with an older cousin and friend, Travis Booker and Derrick Shields, through the Chickasaw Courts housing project in Blytheville when the boys began discussing the idea of robbing the Movie Magic video store. On the way to Movie Magic, Jackson became aware of the fact that Shields was carrying a sawed-off .410 gauge shotgun in his coat sleeve. When they arrived at the store, Shields and Booker went in, but Jackson elected to remain outside by the door. Shields pointed the shot gun at the video clerk, Laurie Troup, and demanded that she “give up the money.” Troup told Shields that she did not have any money. A few moments later, Jackson went inside. Shields demanded that Troup give up the money five or six more times, and each time she refused. After Troup mentioned something about calling the police, Shields shot her in the face.
Jackson v. Norris, 2011 Ark. 49 (Danielson, J., dissenting). If the Court were to grant Jackson relief, but not Miller, on the ground that the one was less culpable than the other, that holding might have some interesting implications for Tison. Although Tison deals with adult felony-murderers sentenced to death, not juveniles sentenced to LWOP, Graham demonstrates that the line between the death penalty and LWOP jurisprudence is not nearly so impermeable as it once seeemed.
Whatever happens in the JLWOP cases, a new article by Joseph Trigilio and Tracy Casadio (“Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing,” 48 Am. Crim. L. Rev. 1371 (2011)) makes a strong argument that the Court ought to revisit Tison in light of its more recent Eighth Amendment decisions. I think that Trigilio and Casadio are especially persuasive in showing that the “objective” prong of the Eighth Amendment analysis in Tison would have to be handled quite differently today.
This is in part because the way the Court performs the objective analysis has changed, and in part because several states have modified their laws since 1987. You can read Trigilio and Casadio for the details (1400-01), but their bottom-line assessment is this: where theTison Court found that only about one-third of jurisdictions required an intent to kill in order to impose the death penalty on a non-triggerman, the Court would today find that about three-quarters of jurisdictions rule out death in those circumstances, which might be enough to conclude that there is a national consensus against it. Trigilio and Casadio also note a number of other “objective” factors that would provide additional support for overturning Tison, such as the direction of change in state laws.
As to the subjective prong, Trigilio and Casadio observe that the Court’s cases since Atkins v. Virginia, 536 U.S. 304 (2002), have emphasized two considerations:
First, a categorical approach is utilized to limit juror discretion that creates an intolerably high risk of an unwarranted death sentence. Second, a focus on the penological goals of retribution and deterrence places culpability at the center of the Court’s subjective analysis. (1406-07)
On the first consideration, Trigilio and Casadio point out (correctly, I think) that an intent requirement would work better as a categorical rule than the conceptually uncertain Tison framework. I’m not quite so convinced, however, by their claim that “[j]urors rendering judgment on felony-murder accomplices are highly likely to feel the need for retribution for a killing that occurred in the course of a rape, robbery, or kidnapping, and to impute that need onto the non-triggerman defendant regardless of his participation in the actual killing.” (1408) Indeed, the claim seems somewhat belied by the data they present in their objective analysis regarding how rare it is in practice for non-triggermen lacking intent actually to be executed. (1404)
I think they are stronger ground, though, in arguing that the Court has recently been more insistent that the death penalty be reserved for the worst of the worst from a culpability standpoint, and that the non-triggerman lacking an intent to kill does not belong in the “worst of the worst” category.