Capital Punishment of Unintentional Felony Murder

Guyora Binder, Brenner Fissell & Robert Weisberg*

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.

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© 2017 Guyora Binder, Brenner Fissell & Robert Weisberg. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Guyora Binder is a SUNY Distinguished Professor and the Vice Dean for Research and Faculty Development at SUNY Buffalo Law School; Brenner Fissell is an Affiliated Scholar at Georgetown University Law Center; Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law at Stanford Law School and the Faculty Co-Director of the Stanford Criminal Justice Center. We thank Kristian Klepes for research assistance.