Preventing The Automatic Death Penalty: Using the Felony Murder Rule as a Basis for a
First-Degree Murder Conviction or an Aggravating Factor, but not Both
Gordon Allen Byars 1
INTRODUCTION
Felony murder remains one of the most hotly debated areas of criminal jurisprudence, in
large part because defendants convicted under a felony murder theory are punished based on
something other than their culpability. Ordinarily, the conduct of the defendant, combined with
defendant’s state of mind, create a degree of culpability which is then, in turn, is used to
determine that person’s level of liability for the crime committed. 2 This is the standard most
people are accustomed to and comfortable with. The defendant is subject to an amount of
criminal liability proportional to defendant’s culpability. 3 Felony murder is markedly different.
In its most basic form, the State can use the felony murder rule to convict a defendant of firstdegree murder if the victim’s death is related, in any way, to the commission of certain felonies. 4
Some jurisdictions do not even take into account how accidental the death was, whether it was
unforeseeable, nor how attenuated or removed the defendant’s conduct was to the death. 5
Perhaps the most troubling thing about the felony murder doctrine is its use as a mechanism to
secure first-degree murder convictions because most first degree murderers are death eligible.
Should those convicted under a felony murder theory be death eligible?
1
Gordon Allen Byars is a J.D. candidate at Lincoln Memorial University-Duncan School of Law with an anticipated
graduation date of May 18, 2013. Special thanks to Professor Charles MacLean for all of his assistance.
2
J. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 142 (2d ed. 1960).
3
Id.
4
Model Penal Code § 210.2 comment 6 (1980) (Providing that the accused be liable for murder if the killing is
connected in any way either with the attempt to commit a felony or to flee from the scene of a felony). See also
Guyora Binder, The Origins of American Felony Murder Rules 57 STAN. L. REV. 59, 186 (2004).
5
Binder, supra, note 4, at 187-88.
This article will discuss the felony murder rule and how it is applied. It also discusses its
flaws and how in certain circumstances it can cause an offender to be more death eligible than a
premeditated murderer. Then it considers the rule in light of current Eighth Amendment
jurisprudence. Finally, the article addresses Tennessee’s felony murder rule and why it is worst
than most. I will wrap up by discussing some of the potential fixes for the rule. Lingering
behind this analysis is the recognition that many states’ felony murder rules carry a potential
death sentence. The current state of the law concerning the death penalty really began to evolve
after the Court decided the seminal case of Furman v. Georgia. 6 As such, this article will only
focus on post-Furman rationale, particularly as it applies to the current state of the felony murder
rule.
I.
CAPITAL PUNISHMENT LAW IN ITS CURRENT FORM
Capital punishment schemes in this country are now measured against the capital
punishment system examined in Furman v. Georgia. 7 The Justices saw Pre-Furman death
penalty statutes as constitutionally infirm, mainly because they were too “arbitrary” and ripe with
discrimination. 8 Since the Furman decision, the goal has been to create some rational basis for
the imposition of the death penalty. A typical pre-Furman death penalty statute made the
defendant death eligible based on the substantive law of homicide. 9 Once the defendant was
death eligible, sentencing took place at the same proceeding and the sentencer had complete
discretion in imposing the death penalty. 10 Furman held that all arbitrary and capricious death
6
Furman v. Georgia, 408 U.S. 238 (1972).
Id.
8
Id.
9
See Cal. Penal Code § 190 (West 1970) (amended by Cal. Penal Code § 190(a) (West Supp. 1997)) ( This was the
statute at issue in McGautha v. California, 402 U.S. 183 (1971)).
10
Richard A. Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 B.C. L. REV. 1103, 1121
(1990).
7
penalty schemes were constitutionally invalid. 11 The Court in Furman believed that existing
system was random, arbitrary, and capricious, and that it resulted in a highly discriminatory
application of the death penalty. 12 Minorities and the poor felt the discrimination most
severely. 13 The nine Justices in Furman all wrote separate opinions, many of them scathingly
against the death penalty. They all saw it, to one degree or another, as an arbitrary device which
resulted in gross discrimination. Justice Stewart argued the death penalty is so “freakishly
imposed” that receiving it was akin to being struck by lightning. 14 Justice White argued that he
was unable to see any “meaningful basis for distinguishing” between cases where death was
imposed and death was not imposed.
15
As a result of the Furman opinion, the death penalty in
the United States halted, and states had to react through their legislatures, which they did.
Legislators throughout the country designed the new statutes to provide guidance to the
sentencer. These new statutes were aimed at removing discrimination, arbitrariness, and caprice
from the system. From the first post-Furman case until today, the Supreme Court has continued
to carve out rules and exceptions to state statutes aimed at eliminating arbitrary and capricious
sentencing in support of the idea that those who deserve to be executed must be “materially more
depraved” than other first degree murderers who are not executed. 16
The Court has used several procedural mechanisms to ensure the administration of the
death penalty system stays within the bounds required by the Eighth Amendment. To pass
constitutional muster, states must first narrow the class of people who are death eligible in a way
that ensures that only the worst offenders are subject to death. 17 However, this initial narrowing
11
Furman, 408 U.S. at 309-10 (Stewart, J., concurring).
See generally Furman, 408 U.S. 238
13
Id. at 242 (Douglas, J., concurring).
14
Id. at 309-10 (Stewart, J., concurring).
15
Id. at 313.
16
Godfrey v. Georgia, 446 U.S. 420, 433 (1980).
17
Pulley v. Harris, 465 U.S. 37, 50 (1984).
12
does not end the process. To satisfy the Eighth Amendment, there can be no mandatory death
sentences. 18 Further, after the initial narrowing, there must be additional procedures that assure
“reliability in the determination that death is the appropriate punishment” in each individual case.
19
Individual sentencing ensures reliability; specifically, the sentencer must make “an
individualized determination on the basis of the character of the individual and the circumstances
of the crime.” 20 Additionally the defendant is entitled to put on evidence in mitigation of
sentence and the prosecution is allowed to put on evidence in aggravation of sentence. 21
In a way, the Court requires that two opposite procedures must take place. First, the class
of death eligible offenders must be narrowed in a reliable way. Then once the initial narrowing
has occurred during the guilt phase, a broadening of sorts takes place at the sentencing phase.
The broadening occurs because the sentencer now makes an individualized determination, which
allows it to take into account a broad array of mitigating and aggravating factors. The hope is,
with these two procedures in place, and by splitting the guilt phase and the penalty phase into
two separate bifurcated proceedings, the end result will remove those who do not deserve the
death penalty from the class of persons who are death eligible.
With those procedural safeguards in place, the Court has also eliminated the death
penalty for entire classes of offenders. Rapists who do not kill, killers under the age of 16, and
killers who become insane after trial have been completely excluded from death eligibility.
22
The Court has also limited death eligibility for many accomplices. Accomplice liability
is particularly interesting because the felony murder rule is the mechanism that makes an
18
Sumner v. Shuman, 438 U.S. 66 (1987).
Woodson v. North Carolina, 428 U.S. 280 (1976).
20
Zant v Stephens, 462 U.S. 862 (1983).
21
Lockett v. Ohio, 438 U.S. 586 (1978); South Carolina v. Gathers, 490 U.S. 805 (1989)
22
Corker v. Georgia, 433 U.S. 584, 600 (1977) (rapists); Thompson v. Oklahoma, 487 U.S. 815, 838 (1988) (age
restrictions); Ford v. Wainwright, 477 U.S. 399, 417-18 (1986)
19
accomplice liable for murder and thus death eligible. Basically felony murder accomplice
liability has been limited through culpability, and now a felony murder accomplice who lacks a
minimum level of culpability regarding a killing is not death eligible. 23
The Court has not considered death eligibility for felony murder very directly, and has
only looked at it from an accomplice standpoint. However, this article considers felony murder
generally in light of the current state of death penalty law as articulated by the United States
Supreme Court.
II.
STATES SUPPORT THE USE OF FELONY MURDER AS A FORM OF
DETERENCE.
Legal scholars have harshly criticized the felony murder doctrine for years arguing, in
one form or another, that the rule is a form of strict liability causing undeserved punishment for
accidental deaths. 24 Despite the arguments against the felony murder doctrine, most states still
retain it. 25 Even when states began to revise their criminal codes in response to the American
Law Institute’s (ALI) Model Penal Code, few removed their felony murder rules even though
ALI recommends abolition of the death penalty. 26 So why is it still a common practice in so
many jurisdictions?
One of the most common arguments in favor of felony murder liability is deterrence. 27
While there are several forms of deterrence arguments, the basic idea is that the threat of a
murder conviction for any killing during or in the furtherance of a felony will deter potential
felons from either committing a felony or from committing it in a violent, potentially dangerous
23
Tison v. Arizona, 481 U.S. 137, 158 (1987); Enmund v. Florida, 458 U.S. 782, 800-01 (1982).
Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70
CORNELL L. REV. 446, 491 (1985).
25
Guyora Binder, Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation, 4 BUFF. CRIM. L.
REV. 399, 400-01 (2000).
26
Id.
27
Kevin Cole, Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 AM. CRIM. L. REV. 73,
73-74 (1991) (concluding that despite uniform hostility of commentators rule remains “quite durable”)
24
manner. 28 However, some scholars have determined that arguing the rule was designed to deter
the underlying felony itself; constitutes a minority viewpoint. 29 The more widely accepted and
widely argued view is that the rule operates to prevent certain conduct during the commission of
certain felonies; thereby deterring violent and dangerous conduct during the commission of a
felony. 30 The rational being: if greater care during the commission of a felony, the risk to human
life is lower. Given that so many states endorse this view, it appears that it is here to stay. 31 The
problem comes in when felony murder serves as a basis for a conviction of a defendant facing
death and the conviction occurs in a state what uses a felony murder type aggravator.
III.
THE FELONY MURDER RULE NEARLY ELIMINATES THE
CONSTITUTIONALLY REQUIRED NARROWING PROCEDURE
Moving back to the concept of the felony murder rule being used as the basis for a firstdegree murder conviction, thus making the defendant potentially death eligible. The Supreme
Court has made it clear that in order for someone to be eligible for a death sentence, the state
statute upon which the defendant is charged must narrow the consideration of who is death
eligible to only the more culpable defendants. 32 Not only must the class be narrowed, but it also
must be narrowed in such a way that “reasonably justifies the imposition of a more severe
sentence on the defendant compared to others found guilty of murder.” 33 By looking at two
separate Supreme Court cases, a rule can be formulated for determining the constitutional
validity of the statute; accordingly, the statute properly narrows the class of defendants if it
provides a “principled way to distinguish [the] case, in which the death penalty was imposed,
from the many cases in which it was not,” and must “differentiate this death penalty case in an
28
Id. at 110; Roth & Sundby, supra note 23, at 450-51.
See Roth & Sundby, supra note 23, at 450-51 n.27
30
GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 4.4.5, at 298 (1978).
31
See Binder, supra note 25, at 409-11.
32
Pulley v. Harris, 465 U.S. 37, 50 (1984); see also Gregg v. Georgia, 428 U.S. 153, 197-98 (1976).
33
Rosen, supra note 9, at 1121(quoting Zant, 462 U.S. at 877).
29
objective, evenhanded, and substantively rational way from the many . . . murder cases in which
the death penalty may not be imposed.” 34
Most states narrow the class of death eligible defendants through the use of aggravating
or enhancing factors at the sentencing phase. 35 This procedure provides that first the defendant
be convicted of first-degree murder, and then once the sentencing phase begins, the sentencer
must find the existence of at least one statutory aggravating or enhancing factor before the
defendant can be sentenced to death. 36 This formula becomes suspect when the defendant is
convicted based on a felony murder theory and the aggravating factors defined by statute provide
for consideration of the same facts in aggravation of the crime that were used to make the
defendant qualify for felony murder in the first place. When this occurs it effectively subverts all
of the Supreme Court jurisprudence which requires a bifurcation of the guilt and sentencing
phase because the sentencer has already found the existence of a fact in aggravation during the
guilt phase. This is particularly troubling when a felony murder defendant is sentenced to death
based upon the existence of only one aggravator which is also an element of the case. This
approach does not allow for the constitutionally required narrowing because it permits a death
sentence for defendants who are arguendo not among “worst murderers—those whose crimes are
particularly serious, or for which the death penalty is peculiarly appropriate.” 37 In such
situations, the defendant is, to a degree, subject to an automatic death sentence.
Yet another issue arises when we compare a defendant convicted under a felony murder
theory with a defendant convicted of a premeditated deliberate killing. In fact, when convicted
34
Id. (quoting Godfrey v. Georgia, 446 U.S. at 433; Zant, 462 U.S. at 877).
Rosen, The “Especially Heinous” Aggravating Circumstance In Capital Cases—The Standardless Standard, 64
N.C.L. REV. 941, 941-92 n. 2 (1986)
36
See Model Penal Code § 210.6 (1980). The Model Penal Code (“MPC”) formulation disallows imposition of the
death sentence unless the trier of fact finds one of the enumerated aggravating circumstances to exist and further
finds that no mitigating circumstances sufficiently substantial to call for leniency arise.
37
State v. Middlebrooks, 840 S.W.2d 317, 343 (Tenn. 1992) (citing Gregg, 428 U.S. 153).
35
under a felony murder theory, defendants are often worse off than those convicted for
premeditated deliberate killings. This is because there are no states which allow a death sentence
for a premeditated, deliberate killer without the existence of at least one aggravating
circumstance. 38 However, when convicted under the felony murder rule in a state which
concurrently uses the rule as both the basis for the conviction and as an aggravating circumstance
at sentencing, the felony murderer is already death eligible simply by virtue of the theory upon
which his conviction was based. Any narrowing which does occur, fails to narrow to the class
of defendants most deserving of the death penalty because there is no mens rea requirement at
either the guilt or sentencing stage. Is a defendant who did not intend to kill worse than one who
killed deliberately, with premeditation?
IV.
State response in Tennessee to this issue.
Some states are pure felony murder states, meaning “they allow the defendants to be
sentenced to death solely because the killing took place during an accompanying felony.
Tennessee was one of those states before 1989.” 39 In 1989 the Tennessee legislature decided to
address the felony murder issue, specifically the fact that pure felony murder statutes do not
sufficiently narrow; Tennessee’s solution was to add the mens rea of recklessness at either the
guilt or sentencing phase. 40 The Tennessee Supreme Court endorsed this statutory solution in
1992 when the Court heard State v. Middlebrook, a case which applied the statutes prior to the
1989 revision, which represented a pure felony murder rule. 41
38
Special Project, Capital Punishment in 1984: Abandoning the Pursuit of Fairness and Consistency, 69 CORNELL
L.REV. 1129, 1240, n.732 (1984).
39
See 1989 Tenn. Pub. Acts, ch. 591, § 1.
40
Id.
41
840 S.W.2d 317 (Tenn. 1992).
In Middlebrooks, the defendant, Donald Ray Middlebrooks, was found guilty of first
degree felony murder and aggravated kidnapping. 42 At a separate sentencing hearing the jury
found the existence of two aggravating factors: (1) that the murder was heinous, atrocious or
cruel in that it involved torture, and (2) that is was committed while defendant was engaged in
committing a felony. 43 The jury recommended death and the judge sentenced Middlebrooks to
death. 44 Middlebrooks appealed his death sentence and when the Tennessee Supreme Court
heard the case, it decided to hand down an opinion analyzing an issue not directly raised by
Middlebrooks, the constitutionality of the death penalty as punishment for felony murder. 45 The
Court then issued a lengthy opinion discussing, in part, the constitutionality of felony murder in
Tennessee. 46 After going through an extensive analysis of Eighth Amendment death penalty
jurisprudence, the Court concluded that the death penalty for felony murder in Tennessee does
not per se violate the Tennessee or United States Constitutions.47 The Court went on to discuss
the application of aggravating circumstances at the sentencing phase of those convicted of felony
murder. 48 The Court reasoned that:
The problem here arises because [the felony murder aggravating] circumstance is
inherent in, and a necessary element of, the capital felony, to-wit, felony murder.
…
A defendant convicted of a felony murder, nothing else appearing, will have one
aggravating circumstance “pending” for no other reason than the nature of the
conviction. On the other hand, a defendant convicted of a premeditated and
deliberated killing, nothing else appearing, enters the sentencing phase with no
strikes against him. This is highly incongruous, particularly in light of the fact that
the felony murder may have been unintentional, whereas, a premeditated murder
is, by definition, intentional and preconceived. 49
42
Id. at 322.
Id.
44
Id.
45
Id. at 323.
46
See generally Middlebrooks supra note 37.
47
Id. at 340.
48
Id. at 341.
49
Id. at 341-42 (quoting State v. Cherry, 257 S.E.2d 551, 567 (N.C. 1979)).
43
The Middlebrooks Court concluded that it Tennessee’s statute failed to narrow the class of
person’s eligible for the death penalty because:
Automatically instructing the sentencing body on the underlying felony in a
felony-murder case does nothing to aid the jury in its task of distinguishing
between first-degree homicides and defendants for the purpose of imposing the
death penalty. Relevant distinctions dim, since all participants in a felonymurder, regardless of varying degrees of culpability, enter the sentencing stage
with at least one aggravating factor against them. 50
The Court went on to hold that when a defendant is convicted based upon a felony murder
theory, the aggravating circumstances in Tennessee do not sufficiently narrow the class of those
who are death eligible; and is thus in violation of both the state and federal constitutions. As
such “a finding of an aggravating circumstance other than [the predicate felony] is necessary to
support death as a penalty for that crime”. 51 Synthesizing the rule following the Middlebrooks
decision: when felony murder is the basis for the conviction and the same facts constitute an
aggravating circumstance, Middlebrooks requires at least one additional aggravating
circumstance in order to make a defendant death eligible. 52 However, when reading the opinion,
it seems evident, although not directly stated by the court, that it would be the court’s preference
that the felony murder aggravator not be considered at all because it is simply too duplicative.
Unfortunately, the court does not express this proposition through its holding because the public
at large appears to approve of the use of such aggravators. 53
As previously noted, Tennessee attempted to resolve the issue recognized by the Court in
Middlebrooks in 1989 by adding the mens rea of Recklessness to its felony murder statute,
unfortunately, the solution sought by the legislature is hardly a solution at all. 54 In fact, the
50
Id. (quoting Engberg v. State, 686 P.2d 541, 560 (Wyo. 1984) (Rose, J., dissenting)).
Id. at 346.
52
Id.
53
Id. at 338.
54
See 1989 Tenn. Pub. Acts, ch. 591, § 1.
51
current version of the Tennessee felony murder statute, which became effective on July 1, 2007,
makes no mention of a recklessness standard. 55 Further, the aggravating factor which reads
substantially similar to the felony murder rule, requires the aggravating felony be “knowingly”
committed. 56 This language effectively subverts the entire rationale and progress made by
Middlebrooks. Knowingly committing the underlying felony fails to adequately narrow the class
of individuals because they still enter the sentencing phase with one aggravating factor against
them. This is the same issue which concerned the Court in Middlebrooks because the current
version of the statute “[did] nothing to aid the jury in its task of distinguishing between firstdegree homicides and defendants for the purpose of imposing the death penalty.” 57 While the
statute in Tennessee continues to change, it still fails to distinguish the class of murderers who
should be death eligible from those who should not and juries have no choice but to abide by the
statute.
Middlebrooks, while a step forward, did not fix the duplicity problem. Despite the
Middlebrooks holding, Tennessee courts are finding a harmless error when a felony murder
aggravator exists in a case where felony murder is also the basis for the conviction and the
defendant is sentence to death. The Tennessee Supreme Court has held that the application of a
felony murder aggravator in a case where the defendant was convicted under a felony murder
theory, does not a narrow the class of defendants as required because it duplicates elements of
the offense at the sentencing phase. 58 However, Tennessee courts have also held that when the
felony murder aggravator is taken into consideration by the jury at sentencing, presumably in
direct violation of the precedent set by Middlebrooks, that consideration constitutes harmless
55
TENN. CODE ANN. § 39-13-202 (West 2007).
TENN. CODE. ANN. § 39-13-204(i)(7) (West 2007).
57
Id. supra note 49.
58
Middlebrooks, 840 S.W.2d at 346.
56
error so long as at least one additional aggravating factor is present. 59 In one such case, Michael
Wayne Howell was convicted of first-degree murder under a felony murder theory. 60 At
sentencing, the jury found the existence of two aggravating factors: (1) that the defendant was
previously convicted of one or more felonies which involved the use or threat of violence to the
person; and (2) that the murder was committed while the defendant was engaged in committing a
felony. 61 Despite the Middlebrooks holding, the Court in Howell found that the consideration of
the felony murder aggravator by the jury constituted harmless error because another aggravating
factor was present. 62 This result is not unique in Tennessee as the courts of that state consistently
uphold death sentences even though the felony murder rule served as a basis for the conviction
and the jury considered a felony murder aggravator. 63 This rationale completely subverts the
precedent set by Middlebrooks because while the jury found more than one aggravating factor,
the jury still considered all aggravators when finding the defendant death eligible. We have no
way of knowing whether or not the jury would have found the defendant to be death eligible in
the absence of the felony murder aggravator. The uncertainty which exists as to whether the jury
would have found the defendant death eligible absent consideration of the felony murder
aggravator is precisely why consideration of that factor should not constitute harmless error. We
simply cannot afford to have a death penalty scheme which creates such uncertainty.
V.
Why the Tennessee response of a mens rea requirement to its First Degree
Felony Murder Statute and Felony aggravating factor is inadequate.
Since the Middlebrooks case in 1992, interpreting the 1989 version of the Tennessee
felony murder statute, the Tennessee legislature has amended its felony murder statute five
59
State v. Howell, 868 S.W.2d 238, 244 (Tenn. 1993).
Id.
61
Id.
62
Id. at 260.
63
See State v. Berry, 141 S.W.3d 549 (Tenn. 2004); State v. Rice, 14 S.W.3d 646 (Tenn. 2006). State v. Jordan, 325
S.W.3d 1 (Tenn. 2010).
60
times. 64 Further, Tennessee has altered the aggravating factor statute eighteen times only three of
which have dealt with the felony murder aggravator. 65 Given all these changes in recent years, it
is clear that Tennessee legislators are as uncertain about how to constitutionally apply felony
murder as most courts are. Currently, Tennessee has still has no mens rea requirement included
in its’ definition of what qualifies for felony first-degree murder, but it does have the mens rea of
“knowledge” added to its felony murder aggravator. 66 However, the added mens rea requirement
fails to adequately narrow the class of death eligible individuals because both the statutory basis
for conviction and aggravating factor are still available for use by prosecutors. 67 Far too many
offenders qualify for death for any narrowing to have occurred, which is what makes the
imposition of the felony murder rule inherently arbitrary in Tennessee.
a. The “recklessness” requirement under the Felony First Degree Murder
statute fails to meaningfully narrow.
Tennessee moved from what is termed a “pure” felony murder state, to its current form
when it added the “recklessness” standard to its felony murder definition. 68 However, this added
mens rea fails to narrow the class of death eligible offenders because “[a]ll felony murderers
potentially meet a recklessness standard; that is, one who purposely undertakes a felony that
results in a death almost always can be found reckless.” 69 Therefore, such a narrowing device is
really no different from those in “pure” felony murder states. The reason no constitutionally
required narrowing occurs in these “recklessness” jurisdictions, like Tennessee, is because the
64
See Appendix 1
See Appendix 2
66
TENN. CODE ANN. § 39-13-202 (West)( Legislature in adopting first-degree murder statute as part of revised
criminal code abandoned pure felony murder doctrine and adopted modified version of offense of reckless murder
under Model Penal Code; to establish crime of first-degree murder based on killing which occurs during commission
of felony, prosecution must prove that killing was committed with culpable mental state of “reckless” and that
killing was committed in perpetration of enumerated felony. TENN. CODE ANN., § 39-13-202(a)(2) (West
1992). State v. Gilliam, 1995, 901 S.W.2d 385 (Tenn. Ct. App. 1995); TENN. CODE. ANN. § 39-13-204(i)(7) (West
2007).
67
TENN. CODE ANN. § 39-13-202 (West 2007); TENN. CODE ANN. § 39-13-204 (West 2007).
68
Id.
69
Rosen, supra note 9, at 1129.
65
Supreme Court case of Tison v. Arizona “now places a nation-wide threshold of culpability at the
reckless indifference level, meaning that a defendant who acts without reckless indifference is
not constitutionally eligible for the death penalty. Because the absence of reckless indifference
immunizes a defendant constitutionally, its presence cannot meaningfully further narrow the
class of death eligible defendants.” 70 This type of mens rea requirement does no more to
meaningfully narrow than did the pure felony murder statutes. Tennessee’s felony murder
definition at the guilt phase falls squarely within this issue. This would not be a problem if the
class of death eligible individuals was narrowed at the guilt phase, but as you will see, it is not.
b. The “knowledge” requirement under the Felony Murder aggravating factor
fails to meaningfully narrow.
Aggravating factors are particularly important when it comes to the death penalty because
at least one must be found at the sentencing phase in order for the defendant to be sentenced to
death. The vast majority of death penalty states, before sentencing the defendant to death, the
sentencing body must find the existence of at least one aggravating factor to satisfy the
constitutionally required narrowing. 71 The issue with this notion lies in the breadth of most
statutory aggravating factors. The death penalty has substantially declined in recent years to only
104 people sentenced to death in 2010 compared to nearly 300 annually in the 1990s. 72 Despite
this fact, legislatures throughout the United States keep making more and more defendant’s death
eligible by changing, amending, and rewriting their death penalty laws. 73 We have reached a
point in the United States where death penalty states now have, on average, more than ten
70
Id. (citing Tison, 481 U.S. at 158).
See Binder, supra note 24 at 28.
72
See Death Sentences By Year: 1977-2009, Death Penalty Info. Ctr., http://www.deathpenaltyinfo.org/deathsentences-year-1977-2008 (last visited April 7, 2013).
73
See Binder, supra note 21, 27, 51.
71
aggravating factors in their statute with more than 50 different factors appearing nationwide. 74
The result of this trend, which began to emerge in 1995, is that in states with more than ten
aggravating factors, over 90% of their murderers are death eligible under one factor or another. 75
If 90% of murderers are death eligible, how meaningfully are these defendants being narrowed
down to a class of those who are deserving of death? I submit that they are not being narrowed
enough.
Bringing it all together, the states are now sentencing far fewer people to death while at
the same time making many more murderers death eligible. Under such a system it becomes
more and more likely that those sentenced to death convicted and sentenced in an arbitrary
manner, especially when defendant’s face the felony murder rule.
This risk of arbitrariness is great when looking at the felony murder aggravators because
the sentencer is considering a fact in aggravation which it has already decided is in existence at
the guilt phase. Because of this fact, felony murders are not meaningfully narrowed within the
requirements of Zant v. Stephens. 76 And even when a statute makes an attempt to meaningfully
narrow by adding some form of mens rea requirement, as Tennessee has done with its’
“knowing” language, that narrowing does not winnow down to the worst offenders. This is
because felony murder encompasses a large portion of all murders committed and the felony
murder aggravator typically can be found in more than 50% of murders. 77 So if more than half of
first-degree murder’s are eligible for the felony murder aggravator, said aggravator does not
narrow the class, especially when you consider that it is unlikely that more than half of all
74
Jeffrey L. Kirchmeier, Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the
United States, 34 PEPP. L. REV. 1, 25 (2006).
75
Id. at 72-73.
76
462 U.S. 862 (1983)
77
Katherine Barnes, David Sloss & Stephen Thaman, Place Matters (Most): An Empirical Study of Prosecutorial
Decision-Making in Death-Eligible Cases, 51 ARIZ. L. REV. 305, 323 tbl 2.2 (2009) (noting that “wantonly vile”
aggravator is present in over 90% of all cases and felony murder aggravator in over 52%)
murders are committed in a more morally depraved manner thus justifying the death penalty.
The reason so many people are eligible for the felony murder aggravator, which is also the
reason it does not narrow the class, is because the aggravator is also an element of the crime
necessary for conviction. Therefore, the jury is considering the underlying felony at the guilt
phase when determining if the defendant has committed first-degree murder; the jury then
considers those same facts which have already been found to exist when determining the
existence of aggravators at the sentencing phase.
Tennessee is no exception to the felony murder aggravator problem. In Tennessee, the
legislature has attempted to achieve the narrowing function by adding the mens rea requirement
of “knowledge” to its’ felony murder aggravator. 78 This solution is inadequate because of the
vast number of individuals to which it applies making it merely token narrowing rather than the
requisite “meaningful narrowing.” 79
VI.
Conclusion
In conclusion, it is clear that in order for a state death penalty scheme to be constitutional
within the meaning of the Eighth Amendment to the United States Constitution it must
meaningfully narrow the class of death eligible individuals at either the guilt phase or the penalty
phase. Further, this narrowing has to occur in such a way as to ensure that those sentenced to
death have committed murders which are more morally depraved than other first degree murders.
Tennessee’s capital sentencing scheme fails to accomplish this constitutionally required goal
when it comes to those convicted under a felony murder theory. First Tennessee has added a
78
TENN. CODE ANN. § 39-13-204(i)(7) (West 2007) (Tennessee’s FM aggravator reads as follows: The murder was
knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in
committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to
commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse,
aggravated child neglect, rape of a child, aggravated rape of a child, aircraft piracy, or unlawful throwing, placing or
discharging of a destructive device or bomb).
79
Zant, 462 U.S. at 877
recklessness requirement at the guilt phase. This addition fails to meaningfully narrow because
recklessness is inherent in all of the predicate felonies. Additionally, Tennessee requires that the
class be narrowed at the guilt phase through the addition of a “knowledge” requirement in its
felony murder aggravator. This aggravator fails to narrow because the defendant has already
been found guilty of the predicate felony at the guilt phase. The real issue with Tennessee’s
scheme lies in the fact that felony murder serves as both a basis for the first degree murder
conviction and as a statutory aggravating factor. By allowing the same facts to be considered by
the fact finder at guilt to be used to aggravate the offense effectively removes any real narrowing
of the death eligible class. Perhaps the felony murder definition or the aggravator could narrow
the class, but so long as both are in effect, the constitutionally required narrowing does not occur.
The resulting scheme subverts the need for bifurcation, and fails to allow the defendant to put on
a full case at the guilt phase because they have to be concerned with the existence of the
aggravator. As such, the death penalty scheme as applied to felony murderers in Tennessee is
constitutionally infirm. If states continue to use the felony murder rule, whether limited to its
traditional form as a basis for a first-degree conviction, and as an aggravator, they create issues
because that process does not limit the death penalty to the most deserving defendants. The rule
allows for a conviction without an examination of blameworthiness, and establishes an automatic
aggravator, thus making the rule arbitrary and capricious, in violation of the Supreme Court’s
Eighth Amendment jurisprudence.
VII.
Recommendations
There are some potential solutions to the felony murder issue that I would like to propose.
First, removing felony murder as a basis for a first-degree murder conviction while keeping the
felony murder aggravator would sufficiently narrow the class. This could be accomplished by
allowing felony murder as a basis for second degree murder then allowing the felony murder
aggravator to enhance the offense at the sentencing phase to the point of making the defendant
death eligible. Of course the defense would still need to be noticed as to the potential death
sentence at the penalty phase, but the result would still narrow the class in a much more
meaningful way than does the current scheme.
Another way to reform the current scheme would be to remove felony murder from the
list of available aggravators. By removing the felony murder aggravator, the narrowing would
take place at the guilt phase as opposed to the sentencing phase. The result would allow
defendants to put on a full case and would ensure that the same facts are not used against a single
defendant at both the guilt and penalty phase. This would effectively reduce those who are death
eligible in a meaningful way because it would remove what is tantamount to an automatic
aggravator thus removing a felony murder defendant from automatic death eligibility.
Regardless of which method for further narrowing is chosen, what is clear is felony
murder should not be used as a basis for a first degree murder conviction and an aggravator
qualifying the defendant for death because allowing both simply makes far too many homicide
offenders death eligible. When more than half of offenders are eligible for death, as is the
current case, no meaningful narrowing is actually occurring and reform is needed.
Appendix 1 Tracking the Changes to Tennessee's First Degree Murder Statute relevant to felony murder since 1989
Year
Code Section
Date Effective
Language used
[e]very murder perpetrated by means of
poison, lying in wait, or by other kinds of
willful, deliberate, malicious, and
premeditated killing, or committed in the
perpetration of, or attempt to perpetrate,
Pre- Tenn.Code Ann. § 39–2–202(a) (1982 &
July 1, 1982 any murder in the first degree,arson,
1989
Supp.1988)
rape, robbery, burglary, larceny,
kidnapping, aircraft piracy, or the
unlawful throwing, placing or
discharging of a destructive device or
bomb ....
1993
Tenn.Code Ann. § 39–2–202(a)(1993)
July 1, 1993
(4) A reckless killing of a child less than
thirteen (13) years of age, if the child's death
results from aggravated child abuse, as
defined by Section 39–15–402, committed by
the defendant against the child.
Effect of
Changes/Notes
This language
represents the pure
felony murder rule.
The Court in
Middlebrooks v.
State, 840 S.W.2d
817 (Tenn. 1992)
took issue with this
language when the
felony murder
aggrvator contained
the same langues.
They viewed it as
unconstitutionally
duplicative.
The legislature
removed the old
version of 39-2202(a)(4) and
replaced it with the
new verision. This
version addded the
"reckless" language.
It marks the addition
of a mens rea
requirement.
1995
2002
Tenn.Code Ann. § 39–2–202(1995)
Tenn.Code Ann. § 39–2–202(2)(2002)
July 1, 1995
July 4, 2002
(a) First Degree Murder is:
(1) A premeditated and intentional killing of
another;
(2) A killing of another committed in the
perpetration of, or attempt to perpetrate any first
degree murder, arson, rape, robbery, burglary,
theft, kidnapping, aggravated child abuse or
aircraft piracy; or
(3) A killing of another committed as the result of
the unlawful throwing, placing or discharging of a
destructive device or bomb.
(b) No culpable mental state is required for
conviction under subsection (a)(2) or (a)(3)
except the intent to commit the enumerated
offenses or acts in such subsections.
(c) A person convicted of first degree murder
shall be punished by:
(1) Death;
(2) Imprisonment for life without possibility of
parole; or
(3) Imprisonment for life.
This version of the
statute completely
revised the first
degree murder
statute. This version
removed any mens
rea/culpable mental
state in the felony
murder section of the
statute.
(2) A killing of another committed in the
perpetration of or attempt to perpetrate any
first degree murder, act of terrorism, arson,
rape, robbery, burglary, theft, kidnapping,
aggravated child abuse, aggravated child
neglect or aircraft piracy; or
The Legislature
removed the old
language in
subsection (2) and
replaced it
completely with the
new language. This
version enumerates
all of the predicated
felonies into one
subsection. Notice
that there is still no
culpability
requirment.
2007
Tenn.Code Ann. § 39–2–202(2)(2007)
The Legislature
removed the old
language in
(2) A killing of another committed in the
perpetration of or attempt to perpetrate any subsection (2) and
first degree murder, act of terrorism, arson, replaced it
July 1, 2007 rape, robbery, burglary, theft, kidnapping,
completely with the
aggravated child abuse, aggravated child
new language. This
neglect, rape of a child, aggravated rape of a
version added
child or aircraft piracy; or
predicate felonies
relative to sex acts
against minors.
Appendix 1 Tracking the Changes to Tennessee's aggravating factors relevant to felony murder since 1989
Year
Code Section
1995 Tenn.Code Ann. § 39–2–204(i)(7)(1995)
2002
2009
Tenn.Code Ann. § 39–2–204(i)(1)(2002)
Tenn.Code Ann. § 39–2–204(i)(7)(2009)
Date Effective
Language used
(7) The murder was knowingly
committed, solicited, directed, or aided
by the defendant, while the defendant
had a substantial role in committing or
attempting to commit, or was fleeing
after having a substantial role in
May 30, 1995
committing or attempting to commit, any
first degree murder, arson, rape, robbery,
burglary, theft, kidnapping, aircraft
piracy, or unlawful throwing, placing or
discharging of a destructive device or
bomb;
(1) The murder was committed in the course
July 4, 2002 of an act of terrorism;
July 30, 2009
aggravated child abuse, aggravated child
neglect, rape of a child, aggravated rape of a
child,
Effect of Changes/Notes
This change added a the mens
rea requirment of "knowingly" to
the felony murder aggravator.
aggravated child abuse,
aggravated child neglect, rape of
a child, aggravated rape of a
child,
This change added an additional
"felony" of an act of terrorism.
This further broadens the class of
death eligible persons.
This change added four
additional predicate felony
aggravators relative to child sex
crimes. This further broadens the
class of death eligible persons.