Felony Murder and The Death Penalty in The United States - Justice Brennan On Those Who Do Not Intend To Kill

Justice Brennan On Those Who Do Not Intend To Kill

Justice Brennan concurred in the result in Enmund but dissented in Tison because he believed that there was a measurable difference between one who acts intentionally and one who acts merely recklessly. Both cases had one crucial fact in common -- neither Enmund nor the Tison brothers had committed an act of murder. Enmund had been in the getaway car; the Tison brothers had been fetching a jug of water for the Lyon family. If the death penalty is to be reserved for the worst murderers, Brennan believed in maintaining the distinction between an intentional act and a reckless one. "It is precisely in this context -- where the defendant has not killed -- that a finding that he or she nevertheless intended to kill seems indispensable to establishing capital culpability." Yet the law had traditionally regarded reckless behavior to be less blameworthy than intentional behavior, because it recognizes the "freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Because Enmund had not intended to kill the Kerseys, the Court had struck down his death sentence as not measurably contributing to either the goal of retribution or of deterrence. For Brennan, then, it was incongruous for the Court to hold in Tison that putting someone to death who had acted recklessly would.

Brennan also faulted the Court for ignoring the states that had abolished the death penalty altogether when counting the states that authorized the death penalty for felony murder. "It is critical to examine not simply those jurisdictions that authorize the death penalty in a given circumstance, but those that actually impose it." None of the 65 executions that had taken place after Enmund were carried out on a felony murderer who had not killed or intended to kill (as determined by a jury).