No. 13-5064

IN THE

PAUL SODOA WATKINS,

Petitioner, v.

STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari to the Supreme Court of California

BRIEF OF AMICI CURIAE CRIMINAL LAW PROFESSORS GUYORA BINDER AND ROBERT

WEISBERG IN SUPPORT OF PETITIONER

Guyora Binder SUNY BUFFALO LAW SCHOOL UNIVERSITY AT BUFFALO John Lord O’Brian Hall Putnam Way Buffalo, NY 14260-1100 Tel. (716) 645-2673 gbinder@buffalo.edu

Robert Weisberg Counsel of Record STANFORD LAW SCHOOL STANFORD UNIVERSITY 559 Nathan Abbott Way Stanford, CA 94305 Tel. (650) 723-0612 Fax (650) 723-0253 weisberg@law.stanford.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

IDENTITY AND INTEREST OF AMICI .................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 6

I. A Death Sentence For Felony Murder Without A Finding Of A Culpable Mental State Of At Least Reckless Indifference To Human Life Violates The Eighth Amendment’s Requirement Of A Retributive Or Deterrence-Based Justification For Capital Punishment .............................................. 6

II. In Determining The Culpability Required For Death-Eligibility Under The Eighth Amendment, A Distinction Between Defendants Who “Actually Killed” And Defendants Who Committed Murder Without Killing Would Be Instable And Unjustifiable ........................................................ 14

III. This Court’s Requirement of Reasonably Justified Selection For Execution Forbids Capital Sentencing Without A Factual Finding Differentiating The Death-Eligible Defendant On The Basis Of Desert Or Deterrence From Others Convicted of Murder ................................................................. 20

CONCLUSION .......................................................... 24

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Adams v. People, 109 Ill. 444 (1884) ................................................ 16

Atkins v. Virginia, 536 U.S. 304 (2002) ..................................... 6, 7, 20

Enmund v. Florida, 458 U.S. 782 (1982) ..................................... passim

Ford v. State, 423 S.E.2d 255 (Ga. 1992) ................................... 15

Furman v. Georgia, 408 U.S. 238 (1972) ................................. 20, 24, 25

Godfrey v. Georgia, 446 U.S. 420 (1980) ......................................... 6, 20

Gregg v. Georgia, 428 U.S. 153 (1976) ................................. 6, 7, 9, 21

Griffin v. Commonwealth, 533 S.E.2d 653 (Va. App. 2000) .......................... 15

Hickman v. Commonwealth, 398 S.E.2d 698 (Va. Ct. App. 1990) .................... 17

Hopkins v. Reeves, 524 U.S. 88 (1998) ............................................... 11

Jurek v. Texas, 428 U.S. 262 (1976) ............................................. 21

Keaton v. State, 57 S.W. 1125 (Tex. Crim. App. 1900) ................. 16

Kennedy v. Louisiana, 554 U.S. 407 (2008) ......................................... 7, 12

iii

Lowenfield v. Phelps, 484 U.S. 231 (1988) ....................................... 21, 22

People v. Dillon, 668 P.2d 697 (Cal. 1983) ....................................... 3

People v. Ingram, 492 N.E.2d 1220 (N.Y. 1986) .............................. 18

People v. Jenkins, 545 N.E.2d 986 (Ill. App. Ct. 1989) ..................... 17

People v. Matos, 634 N.E.2d 157 (N.Y. 1994) ................................ 17

People v. Stamp, 82 Cal. Rptr. 598 (Cal. Ct. App. 1969) ................ 18

People v. Washington, 402 P.2d 130 (Cal. 1965) ..................................... 17

Profitt v. Florida, 428 U.S. 242 (1976) ............................................. 21

Roberts v. Louisiana, 428 U.S. 325 (1976) ............................................. 20

Roper v. Simmons, 543 U.S. 551 (2005) ............................................... 7

Tison v. Arizona, 481 U.S. 137 (1987) ..................................... passim

Trop v. Dulles, 356 U.S. 86 (1958) ............................................... 13

Williams v. State, 17 S.W. 408 (Tex. Ct. App. 1891) ........................ 16

Woodson v. North Carolina, 428 U.S. 280 (1976) ............................................. 20

iv

Zant v. Stephens, 462 U.S. 862 (1983) ....................................... 20, 21

CONSTITUTIONAL PROVISION

U.S. Const., amend. VIII ................................... passim

STATUTES

Cal. Penal Code § 187 ................................................ 17

Cal. Penal Code § 188 ................................................ 22

Cal. Penal Code § 189 ................................................ 22

Cal. Penal Code § 190.2 ......................................... 3, 22

Cal. Penal Code § 190.2(a)(2) ...................................... 4

Cal. Penal Code § 190.2(a)(4) .................................... 23

Cal. Penal Code § 190.2(a)(6) .................................... 23

Cal. Penal Code § 190.2(a)(10) .................................... 4

Cal. Penal Code § 190.2(a)(15) .................................. 23

Cal. Penal Code § 190.2(a)(17) .................................... 4

Cal. Penal Code § 190.2(a)(18) .................................. 23

Cal. Penal Code § 190.2(a)(19) .................................. 23

Cal. Penal Code § 190.2(a)(21) .................................... 4

Cal. Penal Code § 190.3(k) ........................................ 24

OTHER AUTHORITIES

Bentham, Jeremy, The Theory of Legislation (C.K. Ogden ed., Routledge & Kegan Paul 1931) (1802) ......................................................... 13

v

Binder, Guyora, The Meaning of Killing, in Modern Histories of Crime and Punishment (Markus D. Dubber & Lindsay Farmer eds., 2007) .............................................................. 18, 19

Binder, Guyora, Felony Murder (2012) ............................................. 1, 11, 15, 16, 18

Blackstone, William, Commentaries on the Laws of England, 1765-1769 (2005) ............................. 19

Finkel, Norman J. & Kevin B. Duff, Felony Murder and Community Sentiment, 15 L. & Hum. Behav. 405 (1991) ...................................... 12

Fitzjames Stephen, James, A History of the Criminal Law of England (1883) ........................ 19

Fletcher, George P., Rethinking Criminal Law (1978) ................................................................... 19

Hale, Matthew, Pleas of the Crown (1678) ............... 19

Hale, Matthew, The History of the Pleas of the Crown (1736) ....................................................... 18

Hart, H.L.A., Punishment and Responsibility (1968) ..................................................................... 8

Judicial Council of Cal, California Criminal Jury Instructions No. 540C ........................................... 3

Kadish, Sanford H., Foreward: The Criminal Law and the Luck of the Draw, 84 J. Crim. L. & Criminology 679 (1994) ......................................... 1

Kaplan, John, Robert Weisberg & Guyora Binder, Criminal Law (7th ed., 2012) ................................ 1

Malani, Anup, Does the Felony Murder Rule Deter Crime: Evidence from FBI Crime Data (unpublished working paper, 2002) .................... 13

vi

Robinson, Paul H. & John M. Darley, Justice, Liability & Blame: Community Views and the Criminal Law (1995) ............................... 11, 12

Weisberg, Robert, Deregulating Death, 1983 Sup. Ct. Rev. 305 ........................................................... 2

IDENTITY AND INTEREST OF AMICI

Amici are criminal law professors and editors, with the late Professor John Kaplan, of a leading casebook on criminal law.1 John Kaplan, Robert Weisberg & Guyora Binder, Criminal Law (7th ed., 2012).

Guyora Binder, SUNY Distinguished Professor at State University of New York at Buffalo Law School is the author of Felony Murder (2012), the only book on that important legal doctrine. Professor Binder is unusual among legal scholars in defending murder liability as deserved for simple felony murder – i.e., for those who cause death negligently in the pursuit of an independent felonious purpose. Rather than accepting the view common among academics that felony murder liability is “rationally indefensible” (Sanford H. Kadish, Foreword: The Criminal Law and the Luck of the Draw, 84 J. Crim. L. & Criminology 679, 697 (1994)), Professor Binder has sought to identify the felony murder doctrine’s justifying principles in order to assist legislatures and courts in setting rational limits to the doctrine. Professor Binder joins this brief to ensure that this

1 Pursuant to Rule 37.2(a), counsel for the parties have

given their consent to file this amicus brief. True and correct copies of electronic mail correspondence from the parties are included with this filing. No counsel for either party authored this brief in whole or in part, and no party or counsel for either party made a monetary contribution intended to fund its preparation or submission. No person other than the amici or their counsel made a monetary contribution to the preparation or submission of this brief.

2 defense of principled felony murder liability is not misused to justify disproportionate or arbitrary imposition of capital punishment. His account of felony murder justifies lengthy terms of incarceration for simple felony murder – longer than would be deserved for negligent homicide committed without a felonious motive. It does not justify capital murder liability for simple felony murder. This Court has already required that death-eligible accomplices in felony murder have intended death or acted with a reckless indifference to human life while playing a major role in the crime. Professor Binder writes in the hope the Court will confirm that justified capital punishment always requires this higher level of culpability.

Robert Weisberg, Edwin E. Huddleson Jr. Professor of Law and Co-Director of the Stanford Criminal Justice Center at Stanford Law School is the author of several articles on capital sentencing law, including the widely cited Deregulating Death, 1983 Sup. Ct. Rev. 305, an exploration of the challenge of reconciling a rule of law with individualized justice in capital sentencing. Professor Weisberg has been appointed by the California Supreme Court to serve as an appellate attorney in capital cases. He has also served as a consultant to the NAACP Legal Defense & Education Fund, Inc. on capital cases. Professor Weisberg writes in the hope this Court will require California to rationally select murderers for execution on the basis of culpability, to ensure that the infliction of death is reasonably justified by the constitutionally permissible considerations of desert and deterrence. Professor Weisberg urges the court to confirm that this

3 requirement of reasonably justified selection applies to all forms of murder, including felony murder.

SUMMARY OF ARGUMENT

Petitioner was convicted of first degree murder with a special circumstance under California Penal Code Section 190.2 and sentenced to death. The victim was a bystander in a parking lot where petitioner and an accomplice sat in a car after completing two robberies and while preparing for another. Petitioner claimed that he shot the victim accidentally by fumbling a loaded gun he was holding. Perhaps police and prosecutors suspected that petitioner intentionally eliminated a potential witness. Unfortunately, the jury was never asked to decide this question of fact.

Rather, petitioner’s jury was instructed that he was guilty of first degree murder if proven to have killed the victim in the commission or attempt of a robbery. No intent to kill, extreme indifference to human life, or any other mental state is required for first-degree felony murder in California. Where there is no other causal condition contributing to death (such as a victim’s illness) the jury is not even instructed that petitioner’s causal responsibility depends on the foreseeability of death, and no such instruction was given at petitioner’s trial. Judicial Council of Cal, California Criminal Jury Instructions (CALCRIM) No. 540C. In California, first degree felony murder can include deaths that “are highly probable, conceivably possible, or wholly unforeseeable.” People v. Dillon, 668 P.2d 697, 719 (Cal. 1983).

4 The only special circumstance found by

petitioner’s jury was his killing during an attempted robbery, under California Penal Code Section 190.2(a)(17). Some of the potentially pertinent special circumstances neither charged by the prosecutor nor found by the jury were: avoiding or preventing a lawful arrest, the victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony, and discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. Cal. Penal Code § 190.2(a)(2), (10), (21). Thus, petitioner may have committed an intentional murder for the depraved motive of silencing a witness to a robbery, or he may have committed a negligent killing as a result of careless handling of a loaded gun. But under California’s capital sentencing scheme, it makes absolutely no difference which of these scenarios was true. Cold-blooded assassinations, negligent and even accidental killings are treated alike, with no requirement that capitally punishable felony murders be limited to those most deserving of death or most necessary to deter.

In short, petitioner was sentenced to death on the basis of felony murder alone, without proof of (1) reckless indifference to human life or (2) any additional aggravating circumstance requiring culpability. Moreover, no subsequent appellate review determined that petitioner’s killing involved reckless indifference or any additional aggravating circumstances requiring culpability. Whether such a death sentence satisfied Eighth Amendment standards of proportionality is an open question. The

5 Court has never held that the death penalty is proportionate in these circumstances. It has repeatedly underscored the importance of rationally selecting as death-eligible those murderers deserving the most punishment or meriting the most deterrence. Further, the Court has repeatedly treated culpability as an important index of both desert and deterrability. The Court has held that intent to kill or reckless indifference to human life is required for capital punishment of felony murderers who do not “kill.” Yet “killing” is no guarantor of culpability and because felony murder laws employ varying criteria of causal responsibility for death, “killing” also has no determinate meaning.

Accordingly, the Court should now recognize reckless indifference as a requirement for proportionate execution of those convicted of felony murder. In addition, the Court should subject California’s selection of defendants as death-eligible to the Eighth Amendment’s requirement of reasonable justification in light of the permissible purposes of desert and deterrence. California’s persistence in treating simple felony murder as per se death-eligible has now brought before the court the unusual case of a defendant sentenced to die for an inadvertent killing.

6 ARGUMENT

I. A Death Sentence For Felony Murder Without A Finding Of A Culpable Mental State Of At Least Reckless Indifference To Human Life Violates The Eighth Amendment’s Requirement Of A Retributive Or Deterrence-Based Justification For Capital Punishment.

This Court has identified two justifying social purposes served by the death penalty: “‘retribution and deterrence of capital crimes by prospective offenders.’” Atkins v. Virginia, 536 U.S. 304, 319 (2002) (quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). Unless the imposition of the death penalty “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund v. Florida, 458 U.S. 782, 798 (1982).

The Court has denied that execution can serve these purposes when the defendant lacks culpability. Thus, in Atkins, the Court observed that subjecting the mentally retarded to the death penalty disserved both retribution and deterrence, noting that mental retardation diminishes personal culpability. 536 U.S. at 318. Stressing the relationship of culpability to the justification of retribution, the Court said:

[T]he severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v.

7 Georgia, 446 U.S. 420 (1980), we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id. at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution.

536 U.S. at 319. The Court also conditioned a deterrent justification for capital punishment on the capacity for culpability. Accordingly, the Court said that:

[I]t seems likely that “capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,” Enmund, 458 U.S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U.S., at 186. . . . [I]t is the same cognitive and behavioral impairments that make these defendants less morally culpable . . . that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.

536 U.S. at 319-20. Similarly, in Roper v. Simmons, 543 U.S. 551, 571 (2005), the Court stressed that “the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.” In Kennedy v.

8 Louisiana, 554 U.S. 407, 420 (2008), the Court summarized these holdings: “the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime.” In sum, diminished culpability with respect to a risk of death reduces both the desert and the deterrent efficacy of capital punishment.

For this reason, the Court has also barred execution of felony murderers who lack sufficient culpability. In Enmund, the Court overturned the death sentence of a getaway driver who “did not kill or attempt to kill, and did not intend that the life of the victim be taken.” 458 U.S. at 796. Justice White’s opinion for the Court distinguished Enmund from his co-defendants as less deserving of death because less culpable:

The focus must be on his culpability, not on that of those who committed the robbery and shot the victims . . . . It is fundamental that “causing harm intentionally must be punished more severely than causing the same harm unintentionally.” H. Hart, Punishment and Responsibility 162 (1968). Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the Kerseys. This was impermissible under the Eighth Amendment.

458 U.S. at 798. Thus the court regarded the actual killers as more deserving of death, not because they

9 killed, but because – under the facts of the case – their culpability was greater. In fact, the evidence indicated that at least one of Enmund’s codefendants killed the victims intentionally. Equating an inadvertent shooting with an intentional killing, as California law does, is as irrational as equating Enmund’s culpability with that of his fellow robber who killed intentionally.

Because Enmund lacked culpability, Justice White concluded he did not deserve death: “As for retribution . . . we think this very much depends on the degree of Enmund’s culpability.” 458 U.S. at 800. Justice White added that this lack of culpability also precluded deterrence by the threat of death:

[I]t seems likely that “capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,” Fisher v. United States, 328 U. S. 463, 484 (1946) (Frankfurter, J., dissenting), for if a person does not intend that life be taken or contemplate that lethal force will be employed by others, the possibility that the death penalty will be imposed for vicarious felony murder will not “enter into the cold calculus that precedes the decision to act.” Gregg v. Georgia, supra, at 186 (footnote omitted).

458 U.S. at 799. Justice White added that “there is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justifiable deterrent to the felony itself.” Id.

10 The Court’s decision in Tison v. Arizona, 481 U.S.

137 (1987), permitted a death sentence for accomplices in felony murder who were found to have acted with reckless indifference to human life. Justice O’Connor’s opinion for the Court read Enmund as having held that capital punishment could be imposed on felony murderers who “actually killed . . . when the circumstances warranted.” Id. at 150. Nevertheless, the Tison decision reflected a concern with culpability that applies equally to killers:

A critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime. Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished.

Id. at 156. It follows that inadvertent conduct, even when it causes death, does not merit the ultimate penalty.

In arguing that reckless indifference was sometimes a sufficient level of culpability to justify capital punishment, Justice O’Connor gave examples of reckless killings, not reckless complicity in killings. The implication was that even actual killings with less culpability would not warrant capital punishment because these less culpable killers would not have been distinguished as “the most culpable and dangerous of murderers.” Id. at 157.

The Court concluded that “we hold that the reckless disregard for human life implicit in

11 knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state . . . that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” Id. at 157-158 (emphasis added). Thus, while reckless conduct is sufficiently culpable to warrant consideration of a capital sentence when it predictably causes death, this implies that less culpable conduct is insufficient to warrant capital sentencing even when it unexpectedly causes death. This understanding of Tison as applying a requirement of reckless indifference to actual killers was implicitly adopted by the Court in Hopkins v. Reeves, 524 U.S. 88 (1998), where the Court ruled that the Enmund-Tison requirement of reckless indifference to human life could be imposed after the trial stage in a case in which the defendant killed.

Conditioning capital punishment of felony murder on reckless indifference does not minimize the wrongfulness of simple felony murder. Felony murder liability is often predicated on dangerous and selfish crimes like robbery. In most jurisdictions, liability usually depends on the foreseeability of death (see Binder, Felony Murder, supra, at 183-212), although this is not true of first degree felony murder in California. Substantial terms of imprisonment are arguably deserved for negligently causing death in furtherance of a felonious end. Id. at 8-14, 23-93. Indeed, one study of popular views of desert found that experimental subjects supported a sentence of 22 to 27 years for negligent killing in the commission of a robbery. Paul H. Robinson & John M. Darley,

12 Justice, Liability & Blame: Community Views and the Criminal Law 169-181 (1995). Yet the same data indicated that the public did not equate simple felony murder with intentional killing. Thus, the subjects chose either a life term or a death sentence for intentional murder. Id. Another study found that mock jurors were five times more likely to impose a death penalty for premeditated murder in the context of a robbery than for an inadvertent shooting in the context of a robbery. Norman J. Finkel & Kevin B. Duff, Felony Murder and Community Sentiment, 15 L. & Hum. Behav. 405 (1991). In short, a felonious purpose increases the punishment deserved for killing, but is still less culpable than intentional killing.

The jurisprudence of this Court confirms that intent to kill is more culpable than any other felonious purpose. Thus, the Supreme Court has ruled that no felony against an individual victim can be capitally punished except for murder. Kennedy, 554 U.S. 407. As Justice White wrote for the Court in Enmund, “We have no doubt that robbery is a serious crime deserving serious punishment. It is not, however, a crime ‘so grievous an affront to humanity that the only adequate response may be the penalty of death.’” 458 U.S. at 797 (citation omitted). Simple felony murder is also a serious crime, but it does not deserve the ultimate penalty without additional culpability.

Nor does simple felony murder merit capital punishment on grounds of deterrence. As Justice White suggested in Enmund, capital punishment for simple felony murder is too remote a prospect for the average robber to exert much deterrent effect on

13 robbery. And as for the somewhat fanciful theory that felony murder liability encourages committed felons to commit their crime more carefully, the only empirical study of the deterrent effect of felony murder rules on killing found none. Anup Malani, Does the Felony Murder Rule Deter Crime: Evidence from FBI Crime Data (unpublished working paper, 2002). Finally, any potential deterrent effect of a penalty for murder is undermined where the offender acted without any knowledge of the risk of causing death. Deterrence theory presupposes that “[p]unishments are inefficacious when directed against individuals . . . who have acted without intention, [or] who have done the evil innocently, under an erroneous supposition . . . .” Jeremy Bentham, The Theory of Legislation 322-24 (C.K. Ogden ed., Routledge & Kegan Paul 1931) (1802).

The Enmund and Tison rulings reason that complicity in simple felony murder is less deserving of death than complicity in intentional murder or reckless felony murder, because the culpability is less. This implies that simple felony murder is also less deserving of death than intentional murder or reckless felony murder, because of the lesser culpability. After a quarter century of societal experience with the Tison rule it is time to determine if society has embraced the underlying moral principle that no one should face the ultimate penalty for killing inadvertently as an “evolving standard[] of decency.” Trop v. Dulles, 356 U.S. 86, 101 (1958).

14 II. In Determining The Culpability Required For

Death-Eligibility Under The Eighth Amendment, A Distinction Between Defendants Who “Actually Killed” And Defendants Who Committed Murder Without Killing Would Be Instable And Unjustifiable.

Under Enmund, the death penalty is impermissible for an offender convicted of felony murder who neither “kills” nor “intends to kill.” Under Tison, a “major participant” in the predicate felony for felony murder who is not the killer may be sentenced to death if he at least exhibits the mental state of reckless indifference to human life. These holdings did not resolve whether felony murderers who kill must also act with reckless indifference to human life to be death-eligible. The previous section argued that the underlying Eighth Amendment principles applied in Enmund and Tison dictate such a requirement. This section argues that carving out an exception to a requirement of reckless indifference for murder convicts who “actually” killed would leave Eighth Amendment standards not only normatively incoherent, but practically inadministrable. Such an exception would have no determinate meaning or stable boundaries. This Court would be needlessly drawn into litigation over each jurisdiction’s particular rules for attributing responsibility for death. Eighth Amendment standards would be less clear and uniform and executions less justified by the permissible purposes of desert and deterrence.

“Killing” is not a neutral descriptive term, but a normative attribution of responsibility for death. In some jurisdictions, including California, it is a legal

15 term of art, included in the definition of felony murder and glossed by the courts. In others it is merely a colloquial term without legal relevance. Thus, it does not have a sufficiently stable meaning to define the limits of a constitutional right. To conclude that someone has murdered without killing is to state a paradox. To announce that the Eighth Amendment affords defendants a right against execution without proof of culpability, but only if they have committed murder without killing, would be to pose a cruel riddle. By itself, a conclusion that defendant has killed does not ensure sufficient culpability to justify capital punishment as particularly deserved or particularly necessary for deterrence.

Many felony murder convictions arise from intentional shootings, like those in Enmund and Tison. Binder, Felony Murder, supra, at 175. Under such circumstances it is usually easy to identify the killer, and obvious that the killer has acted with at least reckless indifference to human life. Yet this culpability derives from the fact the shooting was intentional, not from the fact it was fatal. In Ford v. State, 423 S.E.2d 255 (Ga. 1992), the defendant accidentally and fatally shot a neighbor through a wall while cleaning a gun he possessed feloniously. The Georgia Supreme Court avoided liability by determining that the gun possession felony was insufficiently dangerous to support felony murder. Id. at 256. In a similar case, a Virginia court decided that an accidental shooting was not causally related to the felony. Griffin v. Commonwealth, 533 S.E.2d 653 (Va. App. 2000). These defendants did not deserve murder liability even though they shot

16 victims fatally, because they lacked culpability. Some might deny that these defendants “actually” killed while others would say they killed accidentally or blamelessly. Yet the justice of punishing them does not depend on such verbal choices.

The defendant’s culpability with respect to death is more important than whose finger was on the trigger. If one felon shot intentionally, while another intentionally forced the victim into the path of the bullet, is the shooter the only “killer”? See, e.g., Keaton v. State, 57 S.W. 1125 (Tex. Crim. App. 1900). If one felon hands another a gun he falsely claims is unloaded and the recipient fires it fatally but unintentionally, who is the killer? Should the unwitting shooter be executed while the knowing supplier is spared?

When causation is indirect or remote it may be impossible to identify one member of a group of felons as the killer. Who is the killer when several felons force a victim to leap to his death from a moving train (Adams v. People, 109 Ill. 444 (1884) or collaborate to wreck a train (Williams v. State, 17 S.W. 408 (Tex. Ct. App. 1891)? Many jurisdictions impose felony murder liability without identifying any one felon as the killer. Thus, Maine, Missouri, Ohio and Oklahoma impose felony murder for causing death by means of a felony, while Alaska, Arizona, Colorado, Florida and New Jersey impose felony murder liability for committing felonies in which any person – including a nonfelon – causes death. Binder, Felony Murder, supra, at 222, 224.

Even when there is only one participant in a fatal felony, we may be uncertain whether that felon has

17 killed. In People v. Matos, 634 N.E.2d 157 (N.Y. 1994), a robber was held liable for felony murder when an officer fell to his death chasing him across a rooftop. Did Matos kill? In People v. Jenkins, 545 N.E.2d 986 (Ill. App. Ct. 1989), the defendant was convicted of felony murder when he threw a pursuing officer to the ground with the result that the officer fatally shot his partner. Did Jenkins kill? In Hickman v. Commonwealth, 398 S.E.2d 698 (Va. Ct. App. 1990), the defendant was convicted of felony murder predicated on drug possession when a companion took an overdose of cocaine in his presence. Did Hickman kill?

California law well illustrates the contingency of any conclusion that a felon has killed. The California Penal Code conditions all murder liability on “killing.” Cal. Penal Code § 187. In the famous case of People v. Washington, 402 P.2d 130 (Cal. 1965), the Supreme Court of California established the “agency” rule, barring felony-murder charges when the death resulted directly from the act of a non-felon. Washington had participated in a robbery, where the target victim of the robbery pulled out a gun and shot Washington’s accomplice to death. Id. at 133. The court concluded that such a killing was not attributable to the felony because not committed by a felon. Id. Yet the court held that similar facts could constitute second degree murder, based on proximate causation of death with “wanton disregard for human life.” Id. at 134. Thus, under California law, the identity of the “actual” killer depends on which form of murder is charged. A recent survey found that 15 felony murder jurisdictions use an agency rule similar to California’s, while 19 jurisdictions use only

18 the proximate cause rule California uses for grossly reckless murder. Binder, Felony Murder, supra, at 209. Thus, whether a participant in a fatal felony “actually” kills depends on the jurisdiction.

In the case of People v. Stamp, 82 Cal. Rptr. 598 (Cal. Ct. App. 1969), that appears perennially in casebooks as an illustration of the unfairness of felony murder liability, three men were charged with felony murder for the robbery of a business, where two entered the business office to demand money and the third waited in the getaway car. A victim died of a heart attack after the robbery had ended. Id. at 601. Even though the victim was in poor cardiac health, medical testimony established that fright from the robbers’ demands was the precipitating cause of death and the state’s intermediate Court of Appeal upheld the conviction as on the grounds that the robbery was the “direct” cause of death. Id. at 610. A similar result was reached in the New York case of People v. Ingram, 492 N.E.2d 1220 (N.Y. 1986) applying a proximate cause test. Yet such convictions were unknown in the common law, “for the … death without the stroke or other violence makes not the homicide.” Matthew Hale, The History of the Pleas of the Crown 426 (1736).

Thus, at one time, a requirement of “killing” would have guaranteed a measure of culpability. In the 18th and early 19th centuries, killing was generally understood to mean causing death by intentionally inflicting a wound or injury. Guyora Binder, The Meaning of Killing, in Modern Histories of Crime and Punishment 88 (Markus D. Dubber & Lindsay Farmer eds., 2007). Malice meant an intention or expectation of doing physical harm,

19 unexcused by provocation or self-defense. Matthew Hale, Pleas of the Crown 44-49 (1678). As thus understood, killing did indeed entail considerable culpability with respect to death. Indeed, killing was presumed malicious absent provocation or self-defense. 4 William Blackstone, Commentaries 201. When 18th century jurists asserted that all killing in the course of a felony was murder, they probably had this narrow conception of killing in mind. They meant that a felonious motive for an intentional wounding would preclude a claim of provocation or self-defense, because the attempted felony would justify resistance, and therefore disqualify that resistance as a justification or excuse for retaliating. George P. Fletcher, Rethinking Criminal Law 280 (1978).

During the nineteenth century, however, legal scholars and judges reconceptualized the meanings of killing and malice, and began to think of criminal offenses as culpably caused injuries. Accordingly, they reconceptualized killing as causing death, and malice as comprising a number of culpable mental states, including intent to kill, intent to grievously injure, depraved indifference to human life, and intent to commit certain dangerous felonies. Binder, The Meaning of Killing, supra; James Fitzjames Stephen, 3 A History of the Criminal Law of England 80-81 (1883).

Where killing no longer implies intentional wounding, however, it does not automatically entail substantial culpability. Accordingly, a disjunctive requirement of either reckless indifference to human life or “actual” killing is not adequate to ensure that murderers are being selected for execution on the

20 basis of the constitutionally required considerations of desert and deterrence. Such a rule has no determinate meaning or principled rationale and will involve this Court unnecessarily in supervising each death penalty jurisdiction’s criteria of causal responsibility. By contrast, a uniform requirement of recklessness is easily understood, easily applied, and coheres with basic Eighth Amendment principles in conditioning execution on culpability so as to achieve desert and deterrence. It is simple justice.

III. This Court’s Requirement Of Reasonably Justified Selection For Execution Forbids Capital Sentencing Without A Factual Finding Differentiating The Death-Eligible Defendant On The Basis Of Desert Or Deterrence From Others Convicted Of Murder.

The Eighth Amendment’s cruel and unusual punishment clause forbids the mandatory execution of all first degree murderers as disproportionate. Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976). Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” Atkins, 536 U.S. at 319. States must give precise definition to the aggravating factors that can result in a capital sentence (Godfrey v. Georgia, 446 U.S. 420, 428-429 (1980) (plurality opinion)) so that the death penalty is reserved for a narrow category of crimes and offenders (Zant v. Stephens, 462 U.S. 862 (1983)).

These few may not be selected on an arbitrary basis. Furman v. Georgia, 408 U.S. 238 (1972). They

21 must be selected by criteria that not only “narrow the class of persons eligible for the death penalty” in numerical terms, but also “reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant, 462 U.S. at 877. The only reasons that have been recognized by this Court as adequate to “justify” the extreme penalty of death are “retribution and deterrence of capital crimes by prospective offenders.” Gregg, 428 U.S. at 183. Unless the imposition of the death penalty “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U.S. at 798 (citation omitted). This requirement of reasonably justified narrowing serves to ensure a measure of proportionality. Each jurisdiction may assess desert and deterrence somewhat differently, but must select defendants as death eligible according to its own legislatively determined and consistently applied criteria of desert or deterrence.

Most death penalty jurisdictions satisfy these strictures by requiring the jury to find at least one aggravating circumstance at the sentencing stage before it may impose death. See, e.g., Gregg, 428 U.S. at 162-64 (1976) (reviewing Georgia sentencing scheme); Profitt v. Florida, 428 U.S. 242, 247-50 (1976) (reviewing Florida sentencing scheme). Others permissibly use narrowing criteria at the guilt phase. See, e.g., Lowenfield v. Phelps, 484 U.S. 231 (1988); Jurek v. Texas, 428 U.S. 262, 269 (1976). In Lowenfield, the sole aggravating circumstance was the fact that the defendant killed or endangered

22 multiple victims. 484 U.S. at 241. This circumstance was established by the defendant’s conviction on multiple murder counts. The Court found that the underlying crime of murder was adequately narrowed by this finding, even though the finding took place at the guilt phase, because multiple murder is not a defining element of murder itself. Id. at 241-46. By contrast, in petitioner’s case, the “special circumstance” established at trial was that the killing took place in the context of robbery. This is not an additional circumstance aggravating what would otherwise be murder, but an essential element of murder. Without the robbery, or proof of a culpable mental state, this killing could not have been murder at all.

California conditions second degree murder on intentional and unprovoked killing, killing with extreme indifference, and killing in the commission or attempt of non-enumerated felonies meeting judicially developed criteria. Cal. Penal Code § 188. California conditions first degree murder on “willful, deliberate and premeditated killing;” killing by certain means entailing substantial culpability, such as bombing, torturing, poisoning, or lying in wait; and killing in the commission or attempt of certain enumerated felonies, including robbery. Cal. Penal Code § 189.

California makes all first degree murderers death eligible if at least one special circumstance is found, but then treats killing during a robbery as a special circumstance making the first degree felony murderer automatically death-eligible. Cal. Penal Code § 190.2. Proof of the premeditated form of first degree murder requires proof of an additional special

23 circumstance to make the defendant death eligible. Proof of the enumerated means form of first degree murder requires additional culpability – either intent to kill, or additional circumstances indicating advance planning plus reasonable knowledge of a “great risk of death.” Cal. Penal Code § 190.2(a)(4), (6), (15), (18), (19). Yet proof of the felony murder form of first degree murder uniquely permits the imposition of capital punishment with no further findings of fact. This failure to require “reasonably justified” narrowing criteria for the felony murder form of first degree murder only is an asymmetry that undermines the proportionality of California’s capital punishment scheme.

It might be argued that California is free to decide that simple felony murder is a particularly aggravated form of first degree murder, categorically worse than premeditated murder. Yet it is not free to do so on just any basis. Murderers may only be selected for death eligibility on the basis of desert or deterrence. As the previous section of this brief showed, the decisions of this Court imply that simple felony murder is less deserving of punishment and less deterrable than premeditated murder. Thus California may not “reasonably justify” death sentences by treating simple felony murder as more deterrable or more deserving of punishment than “willful, deliberate and premeditated” murder. Moreover, it is hard to believe that the California legislature has made such a judgment. First degree felony murder is not a novel offense defined in response to this Court’s invitation to the states to develop more refined criteria of aggravation than the traditional category of first degree murder. To the

24 contrary, the statutory definition of first degree felony murder predicated on robbery has remained substantially unchanged in California for 150 years. To be sure, California juries are directed to consider a wide range of mitigating factors and “[a]ny other circumstance which extenuates the gravity of the crime.” Cal. Penal Code § 190.3(k). Yet the result is that juries are almost as free as they were 100 years ago to impose death sentences on all who kill in the course of enumerated felonies, or spare them for almost any reason. For defendants like petitioner, it is almost as if Furman never happened.

CONCLUSION

California’s capital sentencing scheme permits execution of those who cause death inadvertently in the course of a robbery, without intent to kill, reckless indifference to human life, or any other aggravating circumstance. This permits executions not justified by desert or deterrence, in violation of the Eighth Amendment’s requirement of proportionality.

This Court should now declare the principle left implicit in Enmund and Tison, that no defendant may face the ultimate penalty without proof of a culpable mental state of at least reckless indifference to human life. Although these cases did not expressly extend this principle to defendants who “actually killed,” this is not a stable category of discernible meaning. It would be unjust and imprudent to carve out an indeterminate exception to a basic principle of proportionality.

25 Finally, this Court should condemn California’s

persistent practice of making all defendants convicted of first degree felony murder automatically death eligible, as they were before Furman, with no additional proof they are sufficiently culpable to deserve death or to be deterrable by the threat of death.

Respectfully submitted,

Guyora Binder SUNY BUFFALO LAW SCHOOL UNIVERSITY AT BUFFALO John Lord O’Brian Hall Putnam Way Buffalo, NY 14260-1100 Tel. (716) 645-2673 gbinder@buffalo.edu

Robert Weisberg Counsel of Record STANFORD LAW SCHOOL STANFORD UNIVERSITY 559 Nathan Abbott Way Stanford, CA 94305 Tel. (650) 723-0612 Fax (650) 723-0253 weisberg@law.stanford.edu

July 31, 2013