NCJ Number
59579
Journal
Houston Law Review Volume: 15 Dated: (JANUARY 1978) Pages: 356-386
Date Published
1978
Length
32 pages
Annotation
DECISIONS OF THE U.S. SURPEME COURT ARE EXAMINED THAT CONSTITUTIONALLY APPROVE THE DEATH PENALTY FOR DELIBERATE MURDER BUT APPARENTLY INVALIDATE THE DEATH PENALTY FOR FELONIES NOT INVOLVING LOSS OF LIFE.
Abstract
CONSTITUTIONAL GUIDELINES DEAL WITH THE ACCEPTABILITY OF CAPITAL PUNISHMENT WHERE PROOF OF A DEFENDANT'S INTENT TO KILL IS SUPPLIED ONLY BY THE FELONY-MURDER RULE. THIS RULE ESSENTIALLY OPERATES TO TRANSFER THE INTENT TO COMMIT THE UNDERLYING FELONY TO ANY HOMICIDE WHICH OCCURRED DURING THE COURSE OF THAT FELONY. DEPENDING ON THE STATUTE AND THE JURISDICTION IN QUESTION, FULL HOMICIDAL LIABILITY CAN ATTACH TO THE DEFENDANT, REGARDLESS OF THE INTENT BEHIND THE ACTUAL LETHAL ACT. THERE ARE, HOWEVER, THREE EXCEPTIONS WHERE THE FELONY-MURDER RULE MAY BE UNNECESSARY TO SHOW VICARIOUS LIABILITY: (1) INTENTIONAL KILLING BY A CO-FELON, WITH LIABILITY SUPPLIED BY A CONSPIRACY OR PRINCIPALS RULE; (2) KILLING DONE IN ACCORDANCE WITH A PRECONCEIVED GROUP PLAN TO KILL, SUCH AS AN AGREEMENT THAT SOMEONE WILL KILL ALL WITNESSES TO A CRIME; AND (3) SHIELD CASES IN WHICH THE DEFENDANT INTENTIONALLY USES ANOTHER PERSON TO ABSORB ANY RETALIATORY GUNFIRE. THE FELONY-MURDER RULE IS MOST OFTEN APPLIED IN THE DEFENDANT-KILLS-VICTIM AND DEFENDANT-KILLS-THIRD-PARTY FACT SITUATIONS. TO BE CONSTITUTIONAL, A PENALTY MUST MAKE A MEASURABLE CONTRIBUTION TO ACCEPTABLE GOALS OF PUNISHMENT AND MUST BE PROPORTIONATE TO THE SEVERITY OF THE CRIME. GIVEN UNCERTAINTIES IN MEASURING DETERRENT VALUE OF THE DEATH PENALTY, RETRIBUTION EMERGES AS A MAJOR BASIS FOR THE SUPPORT OF CAPITAL PUNISHMENT. THERE ARE 20 STATES THAT STATUTORILY IMPOSE THE DEATH PENALTY FOR SOME FORM OF FELONY MURDER. THE RELEVANCE OF LEGISLATION TO THE FELONY-MURDER CONTEXT DEPENDS ON THREE FACTORS (PRESUMPTION THAT, IN APPROVING EXTREME PUNISHMENT FOR FELONY MURDER, STATE LEGISLATURES ARE REFLECTING PUBLIC OPINION; ABSENCE OF COMPLETE CONSENSUS SUPPORTING THE APPLICATION OF CAPITAL PUNISHMENT; AND THE FACT THAT STATES ENDORSING IMPOSITION OF THE DEATH PENALTY FOR FELONY MURDER ARE DISPROPORTIONATELY SMALL). CONSIDERATION IS GIVEN TO JURY SENTENCING IN THE CONTEXT OF FELONY MURDER AND THE DEATH PENALTY, THE CONSISTENCY OF DETERRENCE AND RETRIBUTION WITH ACCEPTABLE GOALS OF PUNISHMENT, THE PROPORTIONALITY OF THE DEATH PENALTY IN RELATION TO THE NATURE OF THE OFFENSE, AND MITIGATING FACTORS SURROUNDING THE OFFENSE AND THE OFFENDER. IT IS CONCLUDED THAT THE FELONY-MURDER RULE CANNOT WITHSTAND CONSTITUTIONALITY TESTS. CASE LAW AND FOOTNOTES ARE INCLUDED. (DEP)