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.