NCJ Number
67174
Journal
University of Colorado Law Review Volume: 51 Issue: 1 Dated: (FALL 1979) Pages: 17-75
Date Published
1979
Length
59 pages
Annotation
THE CONSTITUTIONALITY OF INFLICTING THE DEATH PENALTY UPON THOSE WHO ASSIST IN BUT DO NOT PERPETRATE MURDERS IS EXPLORED THROUGH A JURISPRUDENTIAL CONSTRUCT.
Abstract
THE COMMON LAW OF CRIMES DEMANDS THAT PUNISHMENT BE PROPORTIONAL TO THE CRIME COMMITTED. THIS COMMON LAW DOCTRINE HAS BEEN HELD CONSTITUTIONALLY MANDATED BY THE EIGHTH AMENDMENT PROSCRIPTION AGAINST CRUEL AND UNUSUAL PUNISHMENT. SIGNIFICANTLY, ANY LEGISLATION WHICH VIOLATES THIS BASIC CONCEPT WILL BE PROHIBITED BY THE EIGHTH AMENDMENT. IN THE PAST, LEGISLATURES AND COURTS HAVE NOT APPLIED A CORRECT PROPORTIONALITY ANALYSIS; MODERN MURDER STATUTES DEMONSTRATE THIS LEGISLATIVE CONFUSION. IN ORDER TO DECIDE WHETHER A PUNISHMENT FITS THE CRIME ONE MUST FOCUS SEPARATELY ON BOTH THE HARM THE ACTOR HAS CAUSED AND THE BLAMEWORTHINESS OF THAT ACTOR. PUNISHMENT MUST INITIALLY BE SET TO FIT SUCH HARM. HOWEVER, ACTUAL PUNISHMENT MUST BE LIMITED OR REDUCED TO THE EXTENT THAT THE ACTOR'S BLAMEWORTHINESS IS LESS THAN IS NORMALLY REQUIRED FOR THE CRIME. UNDER THIS ANALYSIS, A PERSON'S BLAMEWORTHINESS NEVER AGGRAVATES THE PUNISHMENT, BUT THE ABSENCE OF BLAMEWORTHINESS SERVES AS A MITIGATING FACTOR. IT IS SUGGESTED THAT PUNISHMENT OF ACCESSORIES MUST DISTINGUISH BETWEEN THOSE AIDERS AND ABETTORS WHO CAUSE A KILLING TO OCCUR, AND THUS ARE PERSONALLY TO BLAME FOR THE DEATH OF ANOTHER, AND THOSE ACCESSORIES WHO ASSIST BUT DO NOT CAUSE THE KILLING. IF THE CONSTRUCT EMPLOYING THE HARM AND BLAMEWORTHINESS CONCEPTS IS USED, PUNISHMENT OF NONCAUSAL ACCESSORIES MUST BE LESS THAN THE PENALTY FOR PERPETRATORS AND CAUSAL ACCESSORIES. CAPITAL PUNISHMENT OF NONCAUSAL ACCESSORIES IS UNCONSTITUTIONALLY DISPROPORTIONATE, AS IS CAPITAL PUNISHMENT OF THOSE WHO DO NOT INTEND TO KILL BECAUSE SUCH PERSONS ARE LESS BLAMEWORTHY. THE DEATH PENALTY IS ALSO UNCONSTITUTIONAL WHEN METED OUT UNDER CIRCUMSTANCES MANIFESTING UNRELIABILITY IN MEASURING PERSONAL BLAMEWORTHINESS. THESE CONCLUSIONS ARE SUPPORTED BY THE AUTHOR'S STUDY OF MODERN DEATH PENALTY LEGISLATION, OF ALL EXECUTIONS FROM 1935 THROUGH 1979, AND FROM ANALYSIS OF DEATH ROW CASES OF 1979. A MAJOR REVISION OF CURRENT CAPITAL PUNISHMENT LAWS APPLICABLE TO ACCESSORIES IS VITAL. FOOTNOTES AND TABLES ARE PROVIDED IN THE ARTICLE.