---
title: 'LAW REVIEWS: "Executing Those Who Do Not Kill"'
description: 'A new article to be published in the American Criminal Law Review explores the constitutionality of the death penalty for those convicted of felony…'
canonical: 'https://deathpenaltyinfo.org/law-reviews-executing-those-who-do-not-kill'
section: news
date: '2011-11-10T18:17:00-05:00'
updated: '2025-03-14T14:31:05-04:00'
source: 'Death Penalty Information Center'
---

! 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 Court**'**s 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 *Tison*’s 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](https://deathpenaltyinfo.org/documents/Executing-Those-Who-Do-Not-Kill.PDF)," American Criminal Law Review, forthcoming). See **[Law Reviews](/law-review-journal-articles-death-penalty?did=131&scid=21)** and **[U.S. Supreme Court](/news-us-supreme-court?did=248&scid=38)**; see also [**Executions of Those Who Did not Kill**](https://deathpenaltyinfo.org/executions/executions-overview/executed-but-did-not-directly-kill-victim).