Capital Punishment for Felony Murder
Felony Murder must not be confused with murder during the course of a felony. Murder during the course of a felony is an ordinary, intentional murder. When it is committed during the course of certain dangerous felonies, such as robbery, arson, or rape, the felony may be used as an aggravating factor to impose the death penalty.
Felony Murder, by contrast, is a legal term of art that means that person can be found guilty of murder, even though he lacks the mental state or mens rea ordinarily required for murder, if the killing took place during a felony. Thus, if while robbing a store, the robber’s gun goes off accidentally, killing the proprietor, the defendant would lack the mens rea for murder, which would be something like malice a forethought or intentional depending on the state. Nevertheless, in many States, he would be guilty of murder anyway, because the killing occurred during the course of a felony. The concept of Felony Murder has been used to convict people of murder even when their culpability as to death is relatively low, such as where the victim dies of a heart attack during a robbery, where the deceased is a co-felon, shot by the victim of the original crime, and where the victim is shot by a co-felon whom the defendant had no reason to know would be armed.
In Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court considered whether a person who aids and abets a felony, but does not commit or have an intention to commit a killing, could be put to death. In a five to four opinion, the Court held that the death penalty in such a case was disproportionate to the crime and therefore violated the Eighth Amendment. The Court did not disapprove of the defendant’s conviction for murder, despite the fact that he only served as a driver for the robbery in this case. It was only his death sentence that was struck down. In reaching this conclusion, the Court relied on its 1977 decision in Coker v. Georgia, 433 U.S. 584, in which it had invalidated, also on proportionality grounds, the death penalty for the crime of raping an adult woman.
The Court limited Enmund somewhat in the 1987 case of Tison v. Arizona, 481 U.S. 137. In Tison the death penalty was imposed on two sons whose father had killed a family of four whom the group had abducted at gunpoint during a prison escape. The Court conceded that the sons had neither inflicted the fatal wounds nor intended to kill the victims. Nevertheless, their death sentence was upheld on the ground that they displayed reckless indifference to the deaths: The 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 that is appropriate for Capital Punishment, held the five to four majority. 481 U.S. at p. 157. This is not surprising considering that reckless indifference to death has traditionally been a mental state sufficient for conviction of murder, regardless of the felony. Thus, person who shoots randomly into a house and kills someone would be guilty of murder even though he lacked intent to kill. Tison, however, limits the death penalty to cases where the defendant not only displays a reckless disregard for life but has also knowingly engaged in criminal activities known to create a grave risk of death. Thus, a participant in a robbery where someone is accidentally killed would not usually be subject to the death penalty.
After Ring v. Arizona, 536 U.S. 584 (2002), the aggravating factor justifying the death penalty must be found by the jury, beyond a reasonable doubt, not a judge.
CRAIG M. BRADLEY
References and Further Reading
- Bedau, Hugo, ed. The Death Penalty in America: Current Controversies, 1997
- Rosen, Richard, Felony Murder and the Eighth Amendment Jurisprudence of Death, B.C. Law Review 31 (1990): 1103–1170
- Roth, Nelson, and Scott Sundby, The Felony Murder Rule: A Doctrine at the Constitutional Crossroads, Cornell Law Review 70 (1985): 446–492
Cases and Statutes Cited
- Coker v. Georgia, 433 U.S. 584 (1977)
- Enmund v. Florida 458 U.S. 782 (1982)
- Ring v. Arizona, 536 U.S. 584 (2002)
- Tison v. Arizona, 481 U.S. 137 (1987)