A new article to be published in the American Criminal Law Review explores the constitutionality of the death penalty for those convicted of felony murder, i.e., those who participated in a serious crime in which a death occurred, but were not directly responsible for the death. The article is by Joseph Trigilio and Tracy Casadio, both Deputy Federal Public Defenders in California and is titled "Executing Those Who Do Not Kill." The authors argue that the U.S. Supreme Court's decision in Tison v. Arizona (1987) should be overturned. Tison allows the death penalty for certain non-triggermen if the defendant was a major participant in the underlying felony and acted with a reckless disregard for human life. According to the law review, the analysis in Tison has been overturned in other cases, “Tison leads a trilogy of cases, including Stanford v. Kentucky and Penry v. Lynaugh, that represent a sharp break from a tradition of careful scrutiny on proportionality that considers both objective and subjective criteria in determining whether a certain category of defendants is constitutionally eligible for a death sentence.” Both Stanford and Penry have been overturned, and the authors maintain 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.” The article concludes, “In 2009, the Court cemented the new proportionality paradigm in Kennedy, expressly basing its analysis on the framework of Roper, Atkins, Coker, and Enmund. In so doing, the Court abandoned Tison’s analytical framework as no longer authoritative. The time has come to overturn Tison and to bar the execution of felony-murder accomplices who neither kill nor intend to kill.”
On February 22, Virginia's legislature blocked a bill that would have allowed the death penalty for accomplices to murder who did not actually carry out the killing. The bill would have revised the state’s “triggerman rule,” which allows the death penalty only for the person directly responsible for the actual murder. Two weeks ago, the Senate version of the bill was rejected by the Courts of Justice Committee on a 7-7 vote. The House then passed its own version of the bill, forcing the Senate to reconsider the measure. The Courts Committee again rejected the expansion bill, this time by a vote of 8-6. The vote difference was attributed to Republican Senator Bryce Reeves, who said he changed his vote based on his religious beliefs. Similar bills were passed by the Virginia legislature in 2008 and 2009, but were vetoed by then-Governor Tim Kaine. In 2010 and 2011, the Senate Courts Committee rejected similar bills. Stephen Northup, executive director of Virginians for Alternatives to the Death Penalty, called the bill “an unnecessary[,] expensive and risky expansion of capital punishment.” Among those opposing the bill were representatives of Catholic organizations, the American Civil Liberties Union, and Attorney General Kenneth Cuccinelli. Some of these noted that the state already ranks second to Texas in the number of executions since the the death penalty was reinstated in 1976, and that expanding death penalty eligibility would increase the chances of executing an innocent person.
Jeff Wood’s execution was stayed with only hours remaining by U.S. District Court Judge Orlando Garcia of San Antonio. The judge chastised the Texas courts for their refusal last week to hire mental health experts to determine whether Wood (pictured) was insane or appoint a lawyer to represent him for a competency hearing. The state courts had ruled that Wood had to show he was insane before they would appoint a lawyer and a psychologist to help prove he was insane. Judge Garcia's opinion said such a system is absurd, “With all due respect, a system that requires an insane person to first make ‘a substantial showing’ of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”
The U.S. government has decided to seek the death penalty against six Guantánamo detainees who are accused of having central roles in the terrorist attacks of September 11, 2001. The defendants will be tried before Military Commissions, which are neither part of the federal criminal justice system nor the military's justice system for its own members. The laws and procedures under the Military Commission Act of 2006 have not been tested and had to be re-written after the government's first attempt was found unconstitutional. One person has been convicted under the new act following a guilty plea.