Capital Punishment of Unintentional Felony Murder

75 Pages Posted: 22 Apr 2017  

Guyora Binder

University at Buffalo Law School

Robert Weisberg

Stanford Law School

Brenner Fissell

Georgetown Law

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

Binder, Guyora and Weisberg, Robert and Fissell, Brenner, 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:

Guyora Binder (Contact Author)

University at Buffalo Law School ( email )

528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-2673 (Phone)
716-645-2640 (Fax)

Robert Weisberg

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Brenner Fissell

Georgetown Law ( email )

Washington, DC 20057
United States

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