Felony Murder and the Death Penalty

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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Applying Coker v. Georgia, in which the plurality opinion held that imposing the death penalty for the rape of an adult woman “is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment,” 1 the Court ruled in Enmund v. Florida2 that death is an unconstitutional penalty for felony murder if the defendant did not himself kill, or attempt to take life, or intend that anyone be killed. In making this ruling, the Court noted that most states with the death penalty did not apply it in cases of felony murder.3 The Court subsequently qualified its Enmund decision, ruling in Tison v. Arizona that the death penalty could be imposed for felony murder depending on the culpability of the defendant in the crime.4 In making its finding in Tison, the Court noted that the petitioners “fall outside the category of felony murderers for whom Enmund explicitly held the death penalty disproportional.” 5

In Enmund, the Court determined that death was a disproportionate sentence when the defendant neither took life nor intended to do so. The Court stated:

It is fundamental that ‘causing harm intentionally must be punished more severely than causing the same harm unintentionally.’ Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the Kerseys. This was impermissible under the Eighth Amendment.6

The Enmund Court further reasoned that, because the death penalty is likely to deter only when murder is premeditated and retribution is justified by the level of culpability, imposing death on a participant in a crime in which a victim is murdered by the participant’s confederates and not as a result of his own intention served neither deterrence nor retribution.7 The Court stated:

For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.8

In Tison v. Arizona, however, the Court eased the “intent to kill” requirement, allowing the death penalty to be applied in felony murder cases where the defendant was a major participant in the crime and had acted with reckless indifference to human life. Noting that its ruling reflected an “apparent consensus” among the states,9 the Court stated “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” 10 The Court also observed that a “reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct casues its natural, though also not inevitable, lethal result.” 11

1: Coker v. Georgia, 433 U.S. 584, 592 (1977).
2: 458 U.S. 782 (1982). Justice White wrote the opinion of the Court and was joined by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O’Connor with Justices Powell and Rehnquist and Chief Justice Burger, dissented. Id. at 801. Accord, Cabana v. Bullock, 474 U.S. 376 (1986) also holding that the proper remedy in a habeas case is remand for a state court determination as to whether Enmund findings have been made.
3: Enmund v. Florida, 458 U.S. 782, 789-792 (1977). The Court stated: “[O]nly a small minority of jurisdictions—eight—allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed.” Id. at 792.
4: Tison v. Arizona, 481 U.S. 137 (1987).
5: Id. at 151 (noting that the petitioners “degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life.” ).
6: Enmund v. Florida, 458 U.S. 782, 798 (1977) (citations omitted).
7: Id. at 799-801. Justice O’Connor thought the evidence of contemporary standards did not support a finding that capital punishment was not appropriate in felony murder situations. Id. at 816-23. She also objected to finding the penalty disproportionate, first because of the degree of participation of the defendant in the underlying crime, id. at 823-26, but also because the Court appeared to be constitutionalizing a standard of intent required under state law.
8: Id. at 801.
9: Id. at 154 (noting that “a number of state courts” had interpreted Enmund to allow the death penalty for “aggravated felony murders” ).
10: 481 U.S. 137, 156 (1987). The decision was 5-4. Justice’s opinion for the Court viewed a “narrow” focus on intent to kill as “a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers” , id. at 157, and concluded that “reckless disregard for human life” may be held to be “implicit in knowingly engaging in criminal activities known to carry a grave risk of death.” Id.
11: Id. at 157-158.