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,” 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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