Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing
Trigilio, Joseph, Casadio, Tracy, American Criminal Law Review
For over a century, the Supreme Court has crafted a specific analysis for determining whether a particular sentence is proportionate to the crime under society's norms and to the culpability of the offender. Such an analysis informs whether a sentence is "cruel or unusual punishment" and thus unconstitutional. In the capital context, the Court has examined the proportionality of a death sentence for the crimes of murder and rape. It has also examined the penalty in light of specific categories of defendants, including non-triggermen accomplices, the mentally retarded, and juvenile offenders.
Over twenty years ago, the Court decided a trilogy of cases that appeared to limit the capacity of proportionality principles to regulate death penalty eligibility. That trilogy of cases began with Tison v. Arizona, which found that a death sentence was proportionate for an offender who neither killed nor intended to kill, but who was a major participant in a felony and acted with a reckless disregard for life. Around the same time, the Court found that a defendant's status as a juvenile offender or a mentally retarded person--characteristics impacting culpability--did not render the death penalty disproportionate.
In the beginning of the twenty-first century, however, the Court altered its analysis and ruled that the execution of the mentally retarded and juvenile offenders is categorically disproportionate to our society's evolving norms and to the offender's level of culpability. Yet, having reversed two of its prior decisions, the Court has not had occasion to review the holding of Tison. This Article prepares the ground for that challenge. It argues 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. This conclusion is supported by a survey of the death penalty schemes in all fifty states as they apply to felony-murder non-triggermen, the extraordinarily low number of defendants in this category who are either on death row or who have been executed, international law, and a reasoned analysis of culpability principles as applied to felony-murder accomplices.
TABLE OF CONTENTS INTRODUCTION I. THE SUPREME COURT'S PRE-TISON PROPORTIONALITY CASES A. Gregg v. Georgia: The Court's First Application of the Two-Part Proportionality Analysis in a Capital Case B. Coker v. Georgia: A Death Penalty for Adult Rape Fails the Two-Part Proportionality Analysis C. Enmund v. Florida: The Court Addresses the Proportionality of Executing a Felony-Murder Accomplice II. THE TISON TRILOGY: ABRIDGING THE ESTABLISHED PROPORTIONALITY ANALYSIS A. Tison's Altered Proportionality Analysis B. Stanford v. Kentucky: Court Approves Executing Juvenile Offenders C. Penry v. Lynaugh: Court Approves Executing the Mentally Retarded III. RESURRECTING THE CATEGORICAL APPROACH TO PROPORTIONALITY A. Atkins v. Virginia 1. Objective Indicia 2. Subjective Analysis B. Roper v. Simmons 1. Objective Indicia 2. Subjective Analysis C. Kennedy v. Louisiana 1. Objective Indicia 2. Subjective Analysis D. Distilling the Revitalized Proportionality Analysis 1. The Components of the Objective Indicia Analysis 2. Considerations Governing the Subjective Analysis IV. REVISITING TISON: EXAMINING THE PROPORTIONALITY OF DEATH SENTENCES OF FELONY-MURDER ACCOMPLICES UNDER THE RESURRECTED PROPORTIONALITY ANALYSIS A. Objective Indicia B. Subjective Analysis 1. A Categorical Approach to Felony-Murder Accomplices 2. The Intent Requirement of Retribution and Deterrence CONCLUSION APPENDIX
On August 14, 1996, near San Antonio, Texas, Kenneth Foster joined his friends Mauriceo Brown, DeWayne Dillard, and Julius Steen in a night of drinking and smoking marijuana. …