A new arti­cle to be pub­lished in the American Criminal Law Review explores the con­sti­tu­tion­al­i­ty of the death penal­ty for those con­vict­ed of felony mur­der, i.e., those who par­tic­i­pat­ed in a seri­ous crime in which a death occurred, but were not direct­ly respon­si­ble for the death. The arti­cle is by Joseph Trigilio and Tracy Casadio, both Deputy Federal Public Defenders in California and is titled Executing Those Who Do Not Kill.” The authors argue that the U.S. Supreme Courts deci­sion in Tison v. Arizona (1987) should be over­turned. Tison allows the death penal­ty for cer­tain non-trig­ger­men if the defen­dant was a major par­tic­i­pant in the under­ly­ing felony and act­ed with a reck­less dis­re­gard for human life. According to the law review, the analy­sis in Tison has been over­turned in oth­er cas­es, Tison leads a tril­o­gy of cas­es, includ­ing Stanford v. Kentucky and Penry v. Lynaugh, that rep­re­sent a sharp break from a tra­di­tion of care­ful scruti­ny on pro­por­tion­al­i­ty that con­sid­ers both objec­tive and sub­jec­tive cri­te­ria in deter­min­ing whether a cer­tain cat­e­go­ry of defen­dants is con­sti­tu­tion­al­ly eli­gi­ble for a death sen­tence.” Both Stanford and Penry have been over­turned, and the authors main­tain that, under the pro­por­tion­al­i­ty analy­sis artic­u­lat­ed in Atkins v. Virginia, Roper v. Simmons, and Kennedy v. Louisiana, the con­tem­po­rary stan­dards of decen­cy’ require a fur­ther nar­row­ing of death penal­ty eli­gi­bil­i­ty for those who do not kill nor intend to kill.” The arti­cle con­cludes, In 2009, the Court cement­ed the new pro­por­tion­al­i­ty par­a­digm in Kennedy, express­ly bas­ing its analy­sis on the frame­work of Roper, Atkins, Coker, and Enmund. In so doing, the Court aban­doned Tisons ana­lyt­i­cal frame­work as no longer author­i­ta­tive. The time has come to over­turn Tison and to bar the exe­cu­tion of felony-mur­der accom­plices who nei­ther kill nor intend to kill.”

(J. Trigilio and T. Casadio, Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing,” American Criminal Law Review, forth­com­ing). See Law Reviews and U.S. Supreme Court; see also Executions of Those Who Did not Kill.

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