CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 81-5321 Argued: March 23, 1982 --- Decided: July 2, 1982
JUSTICE WHITE delivered the opinion of the Court.
The facts of this case, taken principally from the opinion of the Florida Supreme Court, are as follows. On April 1, [p784] 1975, at approximately 7:45 a.m., Thomas and Eunice Kersey, aged 86 and 74, were robbed and fatally shot at their farmhouse in central Florida. The evidence showed that Sampson and Jeanette Armstrong had gone to the back door of the Kersey house and asked for water for an overheated car. When Mr. Kersey came out of the house, Sampson Armstrong grabbed him, pointed a gun at him, and told Jeanette Armstrong to take his money. Mr. Kersey cried for help, and his wife came out of the house with a gun and shot Jeanette Armstrong, wounding her. Sampson Armstrong, and perhaps Jeanette Armstrong, then shot and killed both of the Kerseys, dragged them into the kitchen, and took their money and fled.
Two witnesses testified that they drove past the Kersey house between 7:30 and 7:40 a.m. and saw a large cream- or yellow-colored car parked beside the road about 200 yards from the house, and that a man was sitting in the car. Another witness testified that, at approximately 6:45 a.m., he saw Ida Jean Shaw, petitioner's common law wife and Jeanette Armstrong's mother, driving a yellow Buick with a vinyl top which belonged to her and petitioner Earl Enmund. Enmund was a passenger in the car along, with an unidentified woman. At about 8 a.m., the same witness saw the car return at a high rate of speed. Enmund was driving, Ida Jean Shaw was in the front seat, and one of the other two people in the car was lying down across the back seat.
Enmund, Sampson Armstrong, and Jeanette Armstrong were indicted for the first-degree murder and robbery of the Kerseys. Enmund and Sampson Armstrong were tried together. [n1] The prosecutor maintained in his closing argument that "Sampson Armstrong killed the old people." Record 1577. The judge instructed the jury that
[t]he killing of a [p785] human being while engaged in the perpetration of or in the attempt to perpetrate the offense of robbery is murder in the first degree even though there is no premeditated design or intent to kill.
App. 6. He went on to instruct them that,
[i]n order to sustain a conviction of first degree murder while engaging in the perpetration of or in the attempted perpetration of the crime of robbery, the evidence must establish beyond a reasonable doubt that the defendant was actually present and was actively aiding and abetting the robbery or attempted robbery, and that the unlawful killing occurred in the perpetration of or in the attempted perpetration of the robbery.
Id. at 9.
The jury found both Enmund and Sampson Armstrong guilty of two counts of first-degree murder and one count of robbery. A separate sentencing hearing was held, and the jury recommended the death penalty for both defendants under the Florida procedure whereby the jury advises the trial judge whether to impose the death penalty. See Fla.Stat. § 921.141(2) (1981). The trial judge then sentenced Enmund to death on the two counts of first-degree murder. Enmund appealed, and the Florida Supreme Court remanded for written findings as required by Fla.Stat. § 921.141(3) (1981). The trial judge found four statutory aggravating circumstances: the capital felony was committed while Enmund was engaged in or was an accomplice in the commission of an armed robbery, Fla.Stat. § 921.141(5)(d) (1981); the capital felony was committed for pecuniary gain, § 921.141(5)(f); it was especially heinous, atrocious, or cruel, § 921.141(5)(h); and Enmund was previously convicted of a felony involving the use or threat of violence, § 921.141(5)(b). 399 So.2d 1362, 1371-1372 (Fla.1981). The court found that "none of the statutory mitigating circumstances applied" to Enmund, and that the aggravating circumstances outweighed the mitigating circumstances. Id. at 1372. Enmund was therefore sentenced to death on each of the murder counts. [p786]
The Florida Supreme Court affirmed Enmund's conviction and sentences. It found that
[t]here was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered.
Id. at 1370. However, it rejected petitioner's argument that, at most, he could be found guilty of second-degree murder under Florida's felony murder rule. The court explained that the interaction of the "‘felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felon.'" Id. at 1369, quoting Adams v. State, 341 So.2d 765, 768-769 (Fla.1976), cert. denied, 434 U.S. 878 (1977). Although petitioner could be convicted of second-degree murder only if he were an accessory before the fact, rather than a principal, the Florida Supreme Court reasoned:
[T]he only evidence of the degree of his participation is the jury's likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys' money. The evidence, therefore, was sufficient to find that the appellant was a principal of the second degree, constructively present aiding and abetting the commission of the crime of robbery. This conclusion supports the verdicts of murder in the first degree on the basis of the felony murder portion of section 782.04(1)(a).
399 So.2d at 1370. [n2] [p787] The State Supreme Court rejected two of the four statutory aggravating circumstances found by the trial court. It held that the findings that the murders were committed in the course of a robbery and that they were committed for pecuniary gain referred to the same aspect of petitioner's crime, and must be treated as only one aggravating circumstance. Id. at 1373. In addition, the court held that "[t]he recited circumstance, that the murders were especially heinous, atrocious, and cruel, cannot be approved." Ibid., citing Armstrong v. State, 399 So.2d 953 (Fla.1981). [n3] However, because there were two aggravating circumstances and no mitigating circumstances, the death sentence was affirmed. In so doing, the court expressly rejected Enmund's submission that, because the evidence did not establish that he intended to take life, the death penalty was barred by the Eighth Amendment of the United States Constitution. 399 So.2d at 1371.
We granted Enmund's petition for certiorari, 454 U.S. 939 (1981), presenting the question whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life. [n4] [p788]
As recounted above, the Florida Supreme Court held that the record supported no more than the inference that Enmund was the person in the car by the side of the road at the time of the killings, waiting to help the robbers escape. This was enough under Florida law to make Enmund a constructive aider and abettor, and hence a principal in first-degree murder upon whom the death penalty could be imposed. It was thus irrelevant to Enmund's challenge to the death sentence that he did not himself kill and was not present at the killings; also beside the point was whether he intended that the Kerseys be killed or anticipated that lethal force would or might be used if necessary to effectuate the robbery or a safe escape. We have concluded that imposition of the death penalty in these circumstances is inconsistent with the Eighth and Fourteenth Amendments.
The Cruel and Unusual Punishments Clause of the Eighth Amendment is directed, in part, "‘against all punishments which, by their excessive length or severity, are greatly disproportioned to the offenses charged.'" Weems v. United States, 217 U.S. 349, 371 (1910), quoting O'Neil v. Vermont, 144 U.S. 323, 339-340 (1892) (Field, J., dissenting). This Court most recently held a punishment excessive in relation to the crime charged in Coker v. Georgia, 433 U.S. 584 (1977). There the plurality opinion concluded that the imposition of the death penalty for the rape of an adult woman
is grossly disproportionate and excessive punishment for the crime of rape, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.
Id. at 592. In reaching this conclusion, it was stressed that our judgment "should be informed by objective factors to the maximum possible extent." Ibid. Accordingly, the Court looked to the historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made before bringing its [p789] own judgment to bear on the matter. We proceed to analyze the punishment at issue in this case in a similar manner.
The Coker plurality observed that, "[a]t no time in the last 50 years have a majority of the States authorized death as a punishment for rape." Id. at 433 U.S. 593"]593. More importantly, in reenacting death penalty laws in order to satisfy the criteria established in 593. More importantly, in reenacting death penalty laws in order to satisfy the criteria established in Furman v. Georgia, 408 U.S. 238 (1972), only three States provided the death penalty for the rape of an adult woman in their revised statutes. 433 U.S. at 594. The plurality therefore concluded that
[t]he current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman.
Id. at 596 (footnote omitted).
Thirty-six state and federal jurisdictions presently authorize the death penalty. Of these, only eight jurisdictions authorize imposition of the death penalty solely for participation in a robbery in which another robber takes life. [n5] Of the remaining 28 jurisdictions, in 4, felony murder is not a capital crime. [n6] Eleven States require some culpable mental state [p790] with respect to the homicide as a prerequisite to conviction of a crime for which the death penalty is authorized. Of these 11 States, 8 make knowing, intentional, purposeful, or premeditated killing an element of capital murder. [n7] Three other States require proof of a culpable mental state short of intent, such as recklessness or extreme indifference to human life, before the death penalty may be imposed. [n8] In these 11 States, therefore, the actors in a felony murder are not subject to the death penalty without proof of their mental state, proof which was not required with respect to Enmund [p791] either under the trial court's instructions or under the law announced by the Florida Supreme Court.
Four additional jurisdictions do not permit a defendant such as Enmund to be put to death. Of these, one State flatly prohibits capital punishment in cases where the defendant did not actually commit murder. [n9] Two jurisdictions preclude the death penalty in cases, such as this one, where the defendant
was a principal in the offense, which was committed by another, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution. [n10]
One other State limits the death penalty in felony murders to narrow circumstances not involved here. [n11]
Nine of the remaining States deal with the imposition of the death penalty for a vicarious felony murder in their capital sentencing statutes. In each of these States, a defendant may not be executed solely for participating in a felony in which a person was killed if the defendant did not actually cause the victim's death. For a defendant to be executed in these States, typically the statutory aggravating circumstances which are present must outweigh mitigating factors. To be sure, a vicarious felony murderer may be sentenced to death in these jurisdictions absent an intent to kill if sufficient aggravating circumstances are present. However, six [p792] of these nine States make it a statutory mitigating circumstance that the defendant was an accomplice in a capital felony committed by another person and his participation was relatively minor. [n12] By making minimal participation in a capital felony committed by another person a mitigating circumstance, these sentencing statutes reduce the likelihood that a person will be executed for vicarious felony murder. The remaining three jurisdictions exclude felony murder from their lists of aggravating circumstances that will support a death sentence. [n13] In each of these nine States, a nontriggerman guilty of felony murder cannot be sentenced to death for the felony murder absent aggravating circumstances above and beyond the felony murder itself.
Thus, only a small minority of jurisdictions -- eight -- allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed. Even if the nine States are included where such a defendant could be executed for an unintended felony murder if sufficient aggravating circumstances are present to outweigh mitigating circumstances -- which often include the defendant's minimal participation in the murder -- only about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die. Moreover, of the eight States which have enacted new death penalty statutes since 1978, none authorize capital punishment in such circumstances. [n14] While the current legislative judgment [p793] with respect to imposition of the death penalty where a defendant did not take life, attempt to take it, or intend to take life is neither "wholly unanimous among state legislatures," Coker v. Georgia, 433 U.S. at 596, nor as compelling as the legislative judgments considered in Coker, it nevertheless weighs on the side of rejecting capital punishment for the crime at issue. [n15] [p794]
Society's rejection of the death penalty for accomplice liability in felony murders is also indicated by the sentencing decisions that juries have made. As we have previously observed, "‘[t]he jury . . . is a significant and reliable objective index of contemporary values, because it is so directly involved.'" Coker v. Georgia, supra, at 596, quoting Gregg v. Georgia, 428 U.S. 153, 181 (1976). The evidence is overwhelming that American juries have repudiated imposition of the death penalty for crimes such as petitioner's. First, according to the petitioner, a search of all reported appellate court decisions since 1954 in cases where a defendant was executed for homicide shows that, of the 362 executions, in 339, the person executed personally committed a homicidal assault. [n16] In 2 cases, the person executed had another person commit the homicide for him, and, in 16 cases, the facts were not reported in sufficient detail to determine whether the person executed committed the homicide. [n17] The survey revealed only 6 cases out of 362 where a nontriggerman felony murderer was executed. All six executions took place in [p795] 1955. By contrast, there were 72 executions for rape in this country between 1955 and this Court's decision in Coker v. Georgia in 1977. [n18]
That juries have rejected the death penalty in cases, such as this one, where the defendant did not commit the homicide, was not present when the killing took place, and did not participate in a plot or scheme to murder is also shown by petitioner's survey of the Nation's death-row population. [n19] As of October 1, 1981, there were 796 inmates under sentences of death for homicide. Of the 739 for whom sufficient data are available, only 41 did not participate in the fatal assault on the victim. Of the 40 among the 41 for whom sufficient information was available, only 16 were not physically present when the fatal assault was committed. These 16 prisoners included only 3, including petitioner, who were sentenced to die absent a finding that they hired or solicited someone else to kill the victim or participated in a scheme designed to kill the victim. The figures for Florida are similar. [n20] Forty-five felony murderers are currently on death row. The Florida Supreme Court either found or affirmed a trial court or jury finding that the defendant intended life to be taken in 36 cases. In eight cases, the courts made no finding with respect to intent, but the defendant was the triggerman in each case. In only one case -- Enmund's -- there was no finding of an intent to kill and the defendant was not the triggerman. [n21] [p796] The State does not challenge this analysis of the Florida cases.
The dissent criticizes these statistics on the ground that they do not reveal the percentage of homicides that were charged as felony murders or the percentage of cases where the State sought the death penalty for an accomplice guilty of felony murder. Post at 818-819. We doubt whether it is possible to gather such information, and at any rate, it would be relevant if prosecutors rarely sought the death penalty for accomplice felony murder, for it would tend to indicate that prosecutors, who represent society's interest in punishing crime, consider the death penalty excessive for accomplice felony murder. The fact remains that we are not aware of a single person convicted of felony murder over the past quarter century who did not kill or attempt to kill, and did not intend the death of the victim, who has been executed, and that only three persons in that category are presently sentenced to die. Nor can these figures be discounted by attributing to petitioner the argument that "death is an unconstitutional penalty absent an intent to kill," post at 819, and observing that the statistics are incomplete with respect to intent. Petitioner's argument is that, because he did not kill, attempt to kill, and he did not intend to kill, the death penalty is disproportionate as applied to him, and the statistics he cites are adequately tailored to demonstrate that juries -- and perhaps prosecutors as well -- consider death a disproportionate penalty for those who fall within his category. [n22] [p797]
Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. We have concluded, along with most legislatures and juries, that it does not.
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." Gregg v. Georgia, 428 U.S. at 184 (footnote omitted).
[I]t does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, [robbery], by definition, does not include the death of or even the serious injury to another person. The murderer kills; the [robber], if no more than that, does not. Life is over for the victim of the murderer; for the [robbery] victim, life . . . is not over, and normally is not beyond repair.
Coker v. Georgia, 433 U.S. at 598 (footnote omitted). As was said of the crime of rape in Coker, we have the abiding conviction that the death penalty, which is "unique in its severity and irrevocability," Gregg v. Georgia, supra, at 187, is an excessive penalty for the robber who, as such, does not take human life. [p798]
Here, the robbers did commit murder; but they were subjected to the death penalty only because they killed as well as robbed. The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund's own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on "individualized consideration as a constitutional requirement in imposing the death sentence," Lockett v. Ohio, 438 U.S. 586, 605 (1978) (footnote omitted), which means that we must focus on "relevant facets of the character and record of the individual offender." Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Enmund himself did not kill or attempt to kill; and, as construed by the Florida Supreme Court, the record before us does not warrant a finding that Enmund had any intention of participating in or facilitating a murder. Yet under Florida law, death was an authorized penalty because Enmund aided and abetted a robbery in the course of which murder was committed. 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.
In Gregg v. Georgia, the opinion announcing the judgment observed that "[t]he death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders." 428 U.S. at 183 (footnote omitted). Unless the death penalty, when applied to those in Enmund's position, 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. Coker v. Georgia, supra, at 592. We are quite unconvinced, however, that the threat [p799] that the death penalty will be imposed for murder will measurably deter one who does not kill and has no intention or purpose that life will be taken. Instead, it 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).
It would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony. But competent observers have concluded 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. Model Penal Code § 210.2, Comment, p. 38, and n. 96. This conclusion was based on three comparisons of robbery statistics, each of which showed that only about one-half of one percent of robberies resulted in homicide. [n23] The most recent national [p800] crime statistics strongly support this conclusion. [n24] In addition to the evidence that killings only rarely occur during robberies is the fact, already noted, that however often death occurs in the course of a felony such as robbery, the death penalty is rarely imposed on one only vicariously guilty of the murder, a fact which further attenuates its possible utility as an effective deterrence.
As for retribution as a justification for executing Enmund, we think this very much depends on the degree of Enmund's culpability -- what Enmund's intentions, expectations, and actions were. American criminal law has long considered a defendant's intention -- and therefore his moral guilt -- to be critical to "the degree of [his] criminal culpability," Mullaney v. Wilbur, 421 U.S. 684, 698 (1975), and the Court has found criminal penalties to be unconstitutionally excessive in the absence of intentional wrongdoing. In Robinson v. California, 370 U.S. 660, 667 (1962), a statute making narcotics addiction a crime, even though such addiction "is apparently an illness which may be contracted innocently or involuntarily," was struck down under the Eighth Amendment. Similarly, in Weems v. United States, the Court invalidated a statute making it a crime for a public official to make a false entry in a public record but not requiring the offender to "injur[e] anyone by his act or inten[d] to injure anyone." 217 U.S. at 363. The Court employed a similar approach in Godfrey v. Georgia, 446 U.S. 420, 433 (1980), reversing a death sentence based on the existence of an aggravating circumstance because the defendant's crime did not reflect "a consciousness [p801] materially more ‘depraved' than that of any person guilty of murder."
For purposes of imposing the death penalty, Enmund's criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.
Because the Florida Supreme Court affirmed the death penalty in this case in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken, we reverse the judgment upholding the death penalty and remand for further proceedings not inconsistent with this opinion.
1. Jeanette Armstrong's trial was severed and she was convicted of two counts of second-degree murder and one count of robbery and sentenced to three consecutive life sentences. 399 So.2d 1362, 1371 (Fla.1981).
2. The Florida Supreme Court's understanding of the evidence differed sharply from that of the trial court with respect to the degree of Enmund's participation. In its sentencing findings, the trial court concluded that Enmund was a major participant in the robbery because he planned the robbery in advance and himself shot the Kerseys. 399 So.2d at 1372. Both of these findings, as we understand it, were rejected by the Florida Supreme Court's holding that the only supportable inference with respect to Enmund's participation was that he drove the getaway car. The dissent, while conceding that this holding negated the finding that Enmund was one of the triggermen, argues that the trial court's finding that Enmund planned the robbery was implicitly affirmed. Post at 809. As we have said, we disagree with that view. In any event, the question is irrelevant to the constitutional issue before us, since the Florida Supreme Court held that driving the escape car was enough to warrant conviction and the death penalty, whether or not Enmund intended that life be taken or anticipated that lethal force would be used.
3. In Armstrong, the Florida Supreme Court rejected the trial court's conclusion that the Kerseys had been killed in order to eliminate them as witnesses, and stated that, according to the only direct account of the events, "the shootings were indeed spontaneous, and were precipitated by the armed resistance of Mrs. Kersey." 399 So.2d at 963.
4. The petitioner argues a second question: whether the degree of Enmund's participation in the killings was given the consideration required by the Eighth and Fourteenth Amendments. We need not deal with this question.
5. Cal.Penal Code Ann. §§ 189, 190.2(a)(17) (West Supp.1982); Fla.Stat. §§ 782.04(1)(a), 775.082(1), 921.141(5)(d) (1981); Ga.Code §§ 26-1101(b), (c), 27-2534.1(b)(2) (1978); Miss.Code Ann. §§ 97-3-19(2)(e), 99-19101(5)(d) (Supp.1981); Nev.Rev.Stat. §§ 200.030(1)(b), 200.030(4), 200.033(4) (1981); S.C.Code §§ 16-3-10, 16-3-20(C)(a)(1) (1976 and Supp.1981); Tenn.Code Ann. §§ 39-2402(a), 39-2404(i)(7) (Supp.1981); Wyo.Stat. §§ 6-4-101, 6-4-102(h)(iv) (1977).
6. Mo.Rev.Stat. §§ 565.001, 565.003, 565.008(2) (1978) (death penalty may be imposed only for capital murder; felony murder is first-degree murder); N.H.Rev.Stat.Ann. §§ 630:1, 630:1(III), 630:1-a(1)(b)(2) (1974 and Supp.1981) (capital murder includes only killing a law enforcement officer, killing during a kidnaping, and murder for hire); 18 Pa.Cons.Stat. §§ 2502(a), (b), 1102 (1980) (death penalty may be imposed only for first-degree murder; felony murder is second-degree murder); Wash.Rev.Code §§ 9A.32.030, 10.95.020 (1981) (death penalty may be imposed only for premeditated killing).
7. Ala.Code §§ 13A-2-23, 13A-5-40(a)(2), 13A-2(a)(1) (1977 and Supp.1982) (to be found guilty of capital murder, accomplice must have had "intent to promote or assist the commission of the offense" and murder must be intentional); Ill.Rev.Stat., ch. 38, ¶¶ 9-1(a)(3), 9-1(b)(6) (1979) (capital crime only if defendant killed intentionally or with knowledge that his actions "created a strong probability of death or great bodily harm"); La.Rev.Stat.Ann. § 14:30(1) (West Supp.1982) ("specific intent to kill"); N.M.Stat.Ann. §§ 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Supp.1981) (felony murder is a capital crime, but death penalty may not be imposed absent intent to kill unless victim was a peace officer); Ohio Rev.Code Ann. §§ 2903.01(B), (C), (D), 2929.02(A), 2929.04(A)(7) (1982) (accomplice not guilty of capital murder unless he intended to kill); Tex.Penal Code Ann. §§ 19.02(a), 19.03(a)(2) (1974) ("intentionally commits the murder in the course of [a felony]"); Utah Code Ann. § 76202(1) (1978) ("intentionally or knowingly causes the death of another"); Va.Code § 18.2-31(d) (1982) ("willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon").
8. Ark.Stat.Ann. § 41-1501(1)(a) (1977) ("extreme indifference to . . . life"); see also § 41-1501, Commentary ("an inadvertent killing in the course of a felony will not . . . support . . . a conviction entailing punishment by death"); Del.Code Ann., Tit. 11, §§ 636(a)(2), (6) (1979) ("recklessly" or "with criminal negligence" causes death during the commission of a felony); Ky.Rev.Stat. § 507.020(1)(b) (Supp.1980) (defendant must manifest "extreme indifference to human life" and "wantonly engag[e] in conduct which creates a grave risk of death . . . and thereby causes . . . death"); see also Commentary following Criminal Law of Kentucky Annotated, Penal Code § 507.020, p. 677 (1978) (each accomplice's "participation in [the] felony" must "constitut[e] wantonness manifesting extreme indifference to human life").
9. Md. Code Ann., Art. 27, §§ 410, 412(b), 413(d)(10), 413(e)(1) (1982) (except in cases of murder for hire, only principal in the first degree subject to the death penalty). In addition, two jurisdictions already accounted for in n. 7, supra, also preclude the death penalty where the defendant did not commit the murder. Ill.Rev.Stat., ch. 38, ¶¶ 9-1(a)(3), 9-1(b)(6) (1979) (defendant must actually kill victim); Va.Code §§ 18.2-31(d), 18.2-10(a), 18.2-18 (1982) (except in cases of murder for hire, only principal in the first degree may be tried for capital murder).
10. Colo.Rev.Stat. § 16 103(5)(d) (1978); 49 U.S.C. § 1473(c)(6)(D) (same).
11. Vt.Stat.Ann., Tit. 13, §§ 2303(b), (c) (Supp.1981) (capital murder reserved for offenders who commit a second unrelated murder or murder of a correctional officer).
12. Ariz.Rev.Stat.Ann. § 13-703(G)(3) (Supp.1981-1982) ("relatively minor" participation); Conn.Gen.Stat. § 53a-46a(f)(4) (Supp.1982) (same); Ind.Code § 35-50-2-9(c)(4) (Supp.1981) (same); Mont.Code Ann. § 46-18-304(6) (1981) (same); Neb.Rev.Stat. § 29-2523(2)(e) (1979) (same); N.C.Gen.Stat. § 15A-2000(f)(4) (Supp.1981) (same).
13. Idaho Code § 19-2515(f) (1979); Okla.Stat., Tit. 21, § 701.12 (1981); S.D.Comp.Laws Ann. § 23A-27A-1 (Supp.1981).
14. See the Ala., Colo., Conn., Md. Ohio, Pa., S.D. and Wash. statutes cited in nn. 5-7, 9, 10, 12, and 13, supra.
15. The dissent characterizes the state statutes somewhat differently. It begins by noting that 31 States "authorize a sentencer to impose a death sentence for a death that occurs during the course of a robbery." Post at 819. That is not relevant to this case, however. Rather, at issue is the number of States which authorize the death penalty where the defendant did not kill, attempt to kill, or intend to kill. The dissent divides the statutes into three categories. Its first category of 20 statutes include 8 about which there is no disagreement -- Cal., Fla., Ga., Miss., Nev., S.C. Tenn., and Wyo. In 11 other States listed by the dissent -- Ariz., Colo., Conn., Idaho, Ind., Mont., Neb., N.M., N.C., Okla., and S.D. -- the dissent looks solely at the provisions defining the crime of capital murder. Colorado's capital sentencing statute makes a defendant's minimal participation in a murder an absolute defense to imposition of the death penalty. See n. 10, supra. Contrary to the dissent's claim that this provision would have been of no help to petitioner, see post at 820, n. 36, if the case is judged on the basis of the Florida Supreme Court's findings, see n. 2, supra, Colorado law may well have barred imposition of the death penalty in this case. Similarly, the Ariz., Conn., Ind., Mont., Neb., and N.C. capital sentencing statutes do not permit capital punishment solely for vicarious felony murder, and reduce the likelihood that the death penalty will be imposed on a vicarious felony murderer, even where aggravating circumstances are present, by making a defendant's minimal participation in the homicide a mitigating circumstance. See n. 12, supra. Three other States -- Idaho, Okla., and S.D. -- allow a defendant who does not intend to kill or actually kill to be executed only where other aggravating circumstances are present, and in those States, the felony murder itself cannot serve as an aggravating circumstance. See n. 13, supra. New Mexico's capital sentencing statute requires the jury to find at least one statutory aggravating circumstance before the death penalty may be imposed, and, in addition, aggravating circumstances must outweigh mitigating circumstances. N.M.Stat.Ann. §§ 31-20A-4(C)(1) and (2) (Supp.1981). The statute lists seven statutory aggravating circumstances, six of which require an intent to kill. §§ 31-20A-5(B)(G). The only aggravating circumstance which does not include an intent element is not applicable here, for it requires that the victim must be "a peace officer who was acting in the lawful discharge of an official duty when he was murdered." § 31-20A-5(A). The remaining State, Vermont, limits the death penalty to narrow circumstances not present here. See n. 11, supra.
There is no disagreement that three States require a culpable mental state short of intent before a nontriggerman may be put to death, compare n. 8, supra, with post at 821, n. 37, a mental state which Enmund was not proved to possess. Similarly, the dissent's second category of seven States which authorize the death penalty only if the defendant had specific intent to kill the victim differs from our group of specific intent States only because we include New Mexico in that group. Compare n. 7, supra, with post at 821-822, n. 38. Finally, there is no disagreement that three States restrict application of the death penalty to felony murderers who actually kill. Compare n. 9, supra, with post at 822, n. 39.
16. See App. D to Brief for Petitioner.
17. There is no reason to believe that this group of 16 contains a higher proportion of nontriggermen than does the rest of the defendants studied.
18. See NAACP Legal Defense and Educational Fund, Inc., Death Row U.S.A. 1, n. * (Oct. 20, 1981).
19. See App. E to Brief for Petitioner; NAACP Legal Defense and Educational Fund, Inc., Death Row U.S.A. (Oct. 20, 1981).
20. See App. to Reply Brief for Petitioner A-1 - A-7.
21. These statistics concerning the number of vicarious felony murderers who have been executed and the number of them on death row are consistent with the findings of a study of 111 cases in which the defendant was found guilty of a capital crime, and hence could have received the death penalty. Kalven & Zeisel, The American Jury and the Death Penalty, 33 U.Chi.L.Rev. 769 (1966). The authors found that juries rebel "at imposing the death penalty for the vicarious criminal responsibility of the defendant," id. at 776, to the extent that felony murder and accomplice factors accounted for more jury decisions not to impose the death penalty when the trial judge decided to impose the death penalty than any other factor. Id. at 777. The authors had anticipated that, "because of the rigidity of the felony murder rule, the jury's sense of equity would produce a broad area of disagreement." Id. at 776, n. 10. However, they found that "disagreement over the rule emerges only at the level of the death penalty." Ibid.
22. "[T]he climate of international opinion concerning the acceptability of a particular punishment" is an additional consideration which is "not irrelevant." Coker v. Georgia, 433 U.S. 584, 596, n. 10 (1977). It is thus worth noting that the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe. ALI, Model Penal Code § 210.2, pp. 390 (Off. Draft and Revised Comments 1980) (hereafter Model Penal Code). It is also relevant that death sentences have not infrequently been commuted to terms of imprisonment on the grounds of the defendant's lack of premeditation and limited participation in the homicidal act. See Wolfgang, Kelly, & Nolde, Comparison of the Executed and Commuted Among Admissions to Death Row, 53 J.Crim.L.C. & P.S. 301, 310 (1962).
23. The statistics relied upon by the American Law Institute may be summarized as follows:
Date & No. of Accompanied
Location Robberies by Homicide %
Cook County, Ill. 14,392 (est.) 71 .49
Philadelphia, Pa. 6,432 38 59
New Jersey 16,273 66 41
Model Penal Code § 210.2, Comment, p. 38, n. 96.
24. An estimated total of 548,809 robberies occurred in the United States in 1980. U.S. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reports 17 (1981). Approximately 2,361 persons were murdered in the United States in 1980 in connection with robberies, id. at 13, and thus only about 0.43% of robberies in the United States in 1980 resulted in homicide. See also Cook, The Effect of Gun Availability on Robbery and Robbery Murder, in 3 R. Haveman & B. Zellner, Policy Studies Review Annual 743, 747 (1980) (0.48% of all robberies result in murder).