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Vicarious Aggravators Sam Kamin Florida Law Review Volume 65 | Issue 3 Article 3 May 2013 Vicarious Aggravators Sam Kamin Justin Marceau Follow this and additional works at: http://scholarship.law.ufl.edu/flr Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation Sam Kamin and Justin Marceau, Vicarious Aggravators, 65 Fla. L. Rev. 769 (2013). Available at: http://scholarship.law.ufl.edu/flr/vol65/iss3/3 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. Kamin and Marceau: Vicarious Aggravators VICARIOUS AGGRAVATORS Sam Kamin∗ & Justin Marceau∗∗ Abstract In Gregg v. Georgia, the Supreme Court held that the death penalty was constitutional so long as it provided a non-arbitrary statutory mechanism for determining who are the worst of the worst, and therefore, deserving of the death penalty. As a general matter, this process of narrowing the class of death eligible offenders is done through the codification of aggravating factors. If the jury finds beyond a reasonable doubt that one or more aggravating factors exists, then a defendant convicted of murder is eligible for the ultimate sentence. There is, however, a critical, unanswered, and under-theorized issue raised by the use of aggravating factors to serve this constitutionally mandated filtering function. Can death eligibility be predicated on vicarious aggravating factor liability—is there vicarious death penalty liability? A pair of cases, collectively known as the Supreme Court’s Enmund/Tison doctrine, recognize that there is no per se bar on the imposition of the death penalty for non-killing accomplices. But these cases considered only felony murder liability and did not address the question of whether a non-killer can be rendered death eligible on the basis of vicariously imposed aggravating factors. Presently, many state statutes allow aggravating factors to be proven vicariously (or are silent on the question); under such a rule, the existence or absence of one or more aggravating factors will often bear little relation to the defendant’s individual culpability. Because a defendant can be made eligible for capital murder through his participation in the crime with others—he is liable for murder as an accomplice, under a theory of co-conspirator or Pinkerton liability, or felony murder—in many cases we can have little confidence that a statute’s aggravating factors are serving their constitutional function of rationally determining who will live and who will die. This article is the first to identify this constitutional problem and to provide a framework for resolving it. After parsing a variety of capital sentencing statutes we propose a framework for determining the legislative intent behind an aggravating factor and for ensuring a sufficient level of culpability before a non-killing defendant may be sentenced to death. * Professor, University of Denver Sturm College of Law. Ph.D., 2000, J.D., 1996, University of California; B.A., 1992, Amherst College. ∗∗ Associate Professor, University of Denver Sturm College of Law. J.D., cum laude, 2004, Harvard Law School; B.A., summa cum laude, 2000, Boston College. We are grateful for the thoughtful and thorough research assistance provided by Erin Kincaid. 769 Published by UF Law Scholarship Repository, 2013 1 Florida Law Review, Vol. 65, Iss. 3 [2013], Art. 3 770 FLORIDA LAW REVIEW [Vol. 65 INTRODUCTION ..................................................................................... 770 I. THE EIGHT AMENDMENT AND THE DEATH PENALTY ............. 775 A. Procedural Limits: The Constitutional Function of Aggravating Factors ...................................................... 775 B. Substantive Eighth Amendment Limits on the Imposition of the Death Penalty .................................... 780 1. Enmund v. Florida ................................................. 782 2. Tison v. Arizona ..................................................... 783 3. Summary ................................................................ 784 C. Synthesizing the Substantive and Procedural Eighth Amendment Limitations ..................................... 786 II. COMMON EXAMPLES OF AGGRAVATING FACTORS ................ 787 A. Aggravating Factors Relating to the Murder Itself ....... 789 1. Cruel and Heinous Killings .................................... 789 2. Pecuniary Gain ....................................................... 790 3. Felony Murder ........................................................ 791 4. Grave Risk of Death to Others ............................... 792 B. Aggravating Factors Relating to the Status of the Defendant or the Victim ................................................ 793 1. The Status of the Defendant ................................... 793 2. The Status of the Victim ........................................ 794 C. Summary ........................................................................ 795 III. DOCTRINES OF VICARIOUS LIABILITY .................................... 795 A. Accomplice Liability ...................................................... 796 B. Coconspirator Liability ................................................. 798 C. The Natural and Probable Consequences Doctrine ...... 801 D. The Felony Murder Rule ............................................... 801 IV. PUTTING THE PIECES TOGETHER: PROPORTIONALITY AND VICARIOUS AGGRAVATORS ............................................ 803 A. Alternative Approaches to Vicarious-Aggravator Liability ......................................................................... 803 B. The Eighth Amendment Solution to Vicarious Aggravator Liability ...................................................... 806 CONCLUSION ........................................................................................ 812 INTRODUCTION The Eighth Amendment prohibits the imposition of a death sentence without heightened procedural protections designed to limit and guide the http://scholarship.law.ufl.edu/flr/vol65/iss3/3 2 Kamin and Marceau: Vicarious Aggravators 2013] VICARIOUS AGGRAVATORS 771 sentencer’s discretion.1 Consequently, in every death-penalty jurisdiction in the United States,2 the sentencer’s discretion to impose the ultimate punishment is limited by a requirement that a jury determine whether certain eligibility factors are present before a death sentence can be imposed. As a general rule, this process of guiding jury discretion is achieved through the use of statutorily enumerated aggravating factors.3 Aggravating factors, then, serve the constitutionally mandated goal of separating the worst of the worst (those eligible for death) from the merely very bad. Aggravating factors do this by creating categories of crimes and killers that are inherently worse—and therefore more deserving of society’s condemnation—than others. There is, however, a critical, unanswered, and under-theorized issue raised by the use of aggravating factors to serve this constitutionally 1. See Zant v. Stephens, 462 U.S. 862, 874 (1983) (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976)) (“A fair statement of the consensus expressed by the Court in Furman is that ‘where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’”). There is a robust academic literature documenting and examining the requirement of guided discretion in the context of capital sentencing. See, e.g., Justin F. Marceau, Lifting the Haze of Baze: Lethal Injection, the Eighth Amendment, and Plurality Opinions, 41 ARIZ. ST. L.J. 159, 179 nn.88–89 (2009) (compiling academic and judicial support for the requirement, more generally, of heightened procedural protections in death penalty cases); Margaret Jane Radin, Cruel Punishment and Respect for Persons: Super Due Process for Death, 53 S. CAL. L. REV. 1143, 1143 (1980); Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. REV. 1147, 1148 (1991) (“The first commandment of ‘guided discretion’ requires that the sentencer’s discretion be narrowly guided as to which circumstances subject a defendant to the imposition of the death penalty.”). 2. Currently, thirty-six states and the federal government permit the imposition of a death sentence. See Death Penalty Facts, AMNESTY INT'L USA 1 (May 2012), http://www.amnestyusa.org/ pdfs/DeathPenaltyFactsMay2012.pdf. 3. See ALA. CODE § 13A-5-49 (2012); ARIZ. REV. STAT. ANN. § 13-751(F) (2012); ARK. CODE ANN. § 5-4-604 (2012); CAL. PENAL CODE § 190.2(a) (West 2008); COLO. REV. STAT. § 18- 1.3-1201(5) (2012); CONN. GEN. STAT. ANN. § 53a-46a(i) (West Supp. 2012); DEL. CODE ANN. tit. 11, § 4209(e) (2007); FLA. STAT. § 921.141(5) (2012); GA. CODE ANN. § 17-10-30(b) (2012); IDAHO CODE ANN. § 19-2515(9) (2012); 720 ILL. COMP. STAT. ANN. 5/9-1(b) (West Supp. 2012); IND. CODE ANN. § 35-50-2-9(b) (LexisNexis 2009); KAN. STAT. ANN. § 21-6624 (2011); KY. REV. STAT. ANN. § 532.025(2)(a) (West 2012); LA. CODE CRIM. PROC. ANN. art. 905.4(A) (Supp. 2012); MD. CODE ANN., CRIM. LAW § 2-303(g)(1) (LexisNexis Supp. 2012); MISS. CODE. ANN. § 99-19- 101(5) (2012); MO. REV. STAT. § 565.032(2) (2012); MONT. CODE ANN. § 46-18-303 (2011); NEB. REV. STAT. § 29-2523(1)
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