LAW REVIEWS: "Executing Those Who Do Not Kill"

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.”

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STUDIES: Misunderstandings by Jurors Undermines Constitutionality of Death Penalty

A new study by William Bowers and others published in the Criminal Law Bulletin revealed that most jurors in death penalty cases lack sufficient understanding of their duties, rendering the process unconstitutional by Supreme Court standards. The study showed that capital jurors often mistakenly believe that a death sentence is required by law, and fail to take primary responsibility for the defendant's punishment. The study suggested that jurors tend to believe death should be the punishment for heinous crimes and that death is needed as a deterrent and required by law. When the U.S. Supreme Court reinstated the death penalty in Gregg v. Geogia, it stated that improved jury instructions and court procedures would reduce the arbitrariness in capital sentencing. The report's findings suggest that after many years of experimentation these remedies have failed: "It appears that jurors cannot be successfully directed in making such an ominous decision by guidelines and procedures devised to insure a reasoned moral judgment free of arbitrariness. Being outraged by heinous killings and ambivalent about ordering someone killed, are 'normal' human reactions."

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