Unusual: The Death Penalty for Inadvertent Killing

69 Pages Posted: 31 Jan 2019

See all articles by Guyora Binder

Guyora Binder

University at Buffalo Law School

Brenner Fissell

Villanova University; Villanova University, Law School

Robert Weisberg

Stanford Law School

Date Written: 2018


Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony but has not yet addressed the culpability required for execution of the actual killer. In this Article, we urge the recognition of a new Eighth Amendment norm against executing even actual killers who lack a culpable mental state of at least recklessness, with respect to the victim’s death. Using the methods employed by the Supreme Court for determining “evolving standards of decency,” we survey the pertinent homicide and sentencing laws of the fifty-three criminal law jurisdictions in the United States. Second, we evaluate the facts of the cases that resulted in the nearly five hundred executions that have taken place since 1973, when the post-Furman statutes became operative, and 2016, in those jurisdictions permitting execution for inadvertent killing. We did the same for the facts of the 1755 cases of all death row inmates convicted in those jurisdictions and alive at the time of the study (2016). This analysis shows that capital punishment for inadvertent killing has become “truly unusual,” and therefore, unconstitutional.

Keywords: Criminal Law, Constitutional Law, Death Penalty, Punishment, Eighth Amendment

Suggested Citation

Binder, Guyora and Fissell, Brenner and Weisberg, Robert, Unusual: The Death Penalty for Inadvertent Killing (2018). 93 Indiana Law Journal 549 (2018), University at Buffalo School of Law Legal Studies Research Paper No. 2018-012, Available at SSRN: https://ssrn.com/abstract=3320565

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)

Brenner Fissell

Villanova University ( email )

Villanova, PA 19085
United States

HOME PAGE: http://www.brennerfissell.com

Villanova University, Law School ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

Robert Weisberg

Stanford Law School ( email )

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

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