75 Pages Posted: 22 Apr 2017
Date Written: 2017
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.
Keywords: criminal law, death penalty, constitutional law, legal theory, homicide
Suggested Citation: Suggested Citation
Binder, Guyora and Weisberg, Robert and Fissell, Brenner M., Capital Punishment of Unintentional Felony Murder (2017). Notre Dame Law Review, Vol. 92, p. 1141, 2017; University at Buffalo School of Law Legal Studies Research Paper No. 2016-045; Stanford Public Law Working Paper. Available at SSRN: https://ssrn.com/abstract=2956440