The Experts below are selected from a list of 288 Experts worldwide ranked by ideXlab platform
Norman J. Finkel - One of the best experts on this subject based on the ideXlab platform.
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Equal or proportional justice for accessories ? Children's pearls of proportionate wisdom
Journal of Applied Developmental Psychology, 1997Co-Authors: Norman J. Finkel, Marsha B. Liss, Virginia R. MoranAbstract:“Equalist justice”, where the principal and the accessories in Felony-Murder are punished equally, was endorsed, in part, in Tison v. Arizona (1987). Despite Court approval, equalism contravenes the principle of “proportionality”—where severity of punishment is proportionately hinged to the degree of culpability. Psychological attribution theories and research results also contradict equalism, as adults' verdict and sentencing decisions in general, and in Felony-Murder situations in particular, are made proportionately to the perceived culpability of the defendants. We test this equalism vs. proportionalism question with children, and we find that kindergarten, second and third, and fifth grade subjects also endorse proportionalism as the rule—a rule discernible at the youngest age level, and one that grows clearer and brighter with age. Even these youngest citizens reject the sort of equalism that the Supreme Court embraced.
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Recidivism, Proportionalism, and Individualized Punishment:
American Behavioral Scientist, 1996Co-Authors: Norman J. Finkel, Stephen T. Maloney, Monique Z. Valbuena, Jennifer L. GroscupAbstract:Politicians, armed with opinion polls for support, rush to enact crime bills where sentences grow steeper, where higher minimum sentences are made mandatory, and where the death sentence is applied in more cases. Despite apparent support from suspect polls, the empirical question remains: Does community sentiment favor “steeper-firmer-deadlier” punishments that are disproportionate to the act and invariate to the actors, or does sentiment favor individualized and proportionate punishment? In experiments dealing with recidivist, accessory Felony-Murder, and perpetrator-by-means cases—where the law asks for excessive or invariate punishment—subjects favor proportional and individualized punishment and judge defendants based on perceived culpability.
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Killing kids: The juvenile death penalty and community sentiment
Behavioral Sciences & The Law, 1994Co-Authors: Norman J. Finkel, C B A Kevin Hughes, F B A Stephanie Smith, L B A Mane HurabiellAbstract:In the Supreme Court's Eighth Amendment jurisprudence, “community sentiment” plays a central if not dispositive role in determining if a punishment is disproportionate. To gauge sentiment on the death penalty for juveniles, two experiments with death-qualified subjects were run, where age (a 15–25 age range) and case (heinousness) were varied in the first, and type of defendant (principal, accessory, or Felony-Murder accessory) and an extended age range (13–25) varied in the second. Significant age effects occur in both experiments, with approximately 75% and 65% refusing to give the death penalty for the youngest (13–15) and next youngest (16–18) groups, whereas 60% give the death penalty for the 25-year-old. In their reasons for their decisions, the killing kid was judged less blameworthy and death-worthy. Although politicians have called for “a man-sized punishment for a man-sized crime,” this community does not see that “man-sized” punishment fitting the kid.
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Felony-Murder and community sentiment
Law and Human Behavior, 1991Co-Authors: Norman J. Finkel, Kevin B. DuffAbstract:The controversy over capital Felony-Murder resurfaced in two recent Supreme Court cases ( Enmund v. Florida , 1982; Tison v. Arizona , 1987), where two bitterly divided Courts made highly questionable assertions regarding where community sentiment stood on this matter. To test these assertions about the Felony-Murder rule and the accessorial liability theory, two experiments were run ( N =275, 73% death qualified, and N =212, 81% death qualified) where mock jurors rendered verdicts and sentences for four defendants who varied in their level of culpability and level of participation in the crime. To test the Supreme Court's reasoning, subjects rendered decisions and reasons using the “ninth Justice” paradigm, where they could “reverse and remand” or “let stand” the death sentence for Felony-Murder. The empirical evidence indicates that subjects clearly and consistently reject the accessorial liability theory and the Felony-Murder rule, and these results refute the majority's assertions in Tison about where community sentiment stands.
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Felony Murder and community sentiment testing the supreme court s assertions
Law and Human Behavior, 1991Co-Authors: Norman J. Finkel, Kevin B. DuffAbstract:The controversy over capital Felony-Murder resurfaced in two recent Supreme Court cases (Enmund v. Florida, 1982;Tison v. Arizona, 1987), where two bitterly divided Courts made highly questionable assertions regarding where community sentiment stood on this matter. To test these assertions about the Felony-Murder rule and the accessorial liability theory, two experiments were run (N=275, 73% death qualified, andN=212, 81% death qualified) where mock jurors rendered verdicts and sentences for four defendants who varied in their level of culpability and level of participation in the crime. To test the Supreme Court's reasoning, subjects rendered decisions and reasons using the “ninth Justice” paradigm, where they could “reverse and remand” or “let stand” the death sentence for Felony-Murder. The empirical evidence indicates that subjects clearly and consistently reject the accessorial liability theory and the Felony-Murder rule, and these results refute the majority's assertions inTison about where community sentiment stands.
Kevin B. Duff - One of the best experts on this subject based on the ideXlab platform.
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Felony-Murder and community sentiment
Law and Human Behavior, 1991Co-Authors: Norman J. Finkel, Kevin B. DuffAbstract:The controversy over capital Felony-Murder resurfaced in two recent Supreme Court cases ( Enmund v. Florida , 1982; Tison v. Arizona , 1987), where two bitterly divided Courts made highly questionable assertions regarding where community sentiment stood on this matter. To test these assertions about the Felony-Murder rule and the accessorial liability theory, two experiments were run ( N =275, 73% death qualified, and N =212, 81% death qualified) where mock jurors rendered verdicts and sentences for four defendants who varied in their level of culpability and level of participation in the crime. To test the Supreme Court's reasoning, subjects rendered decisions and reasons using the “ninth Justice” paradigm, where they could “reverse and remand” or “let stand” the death sentence for Felony-Murder. The empirical evidence indicates that subjects clearly and consistently reject the accessorial liability theory and the Felony-Murder rule, and these results refute the majority's assertions in Tison about where community sentiment stands.
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Felony Murder and community sentiment testing the supreme court s assertions
Law and Human Behavior, 1991Co-Authors: Norman J. Finkel, Kevin B. DuffAbstract:The controversy over capital Felony-Murder resurfaced in two recent Supreme Court cases (Enmund v. Florida, 1982;Tison v. Arizona, 1987), where two bitterly divided Courts made highly questionable assertions regarding where community sentiment stood on this matter. To test these assertions about the Felony-Murder rule and the accessorial liability theory, two experiments were run (N=275, 73% death qualified, andN=212, 81% death qualified) where mock jurors rendered verdicts and sentences for four defendants who varied in their level of culpability and level of participation in the crime. To test the Supreme Court's reasoning, subjects rendered decisions and reasons using the “ninth Justice” paradigm, where they could “reverse and remand” or “let stand” the death sentence for Felony-Murder. The empirical evidence indicates that subjects clearly and consistently reject the accessorial liability theory and the Felony-Murder rule, and these results refute the majority's assertions inTison about where community sentiment stands.
Guyora Binder - One of the best experts on this subject based on the ideXlab platform.
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capital punishment of unintentional Felony Murder
Notre Dame Law Review, 2017Co-Authors: Guyora Binder, Brenner M Fissell, Robert WeisbergAbstract:Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a Felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court's decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the underlying justifications of Eighth Amendment jurisprudence require a rational selection for death of only the most deserving and deferrable offenders, and this in turn requires an assessment of culpability. We argue that the Supreme Court should address this open question in Eighth Amendment law and that it should correct the lower courts by imposing a uniform requirement of at least recklessness with respect to death for capital punishment of Felony Murder. INTRODUCTION That a defendant could be executed for causing death inadvertently might seem absurd. Nevertheless, the great majority of American courts to have considered the question have concluded that the Eighth Amendment of the U.S. Constitution permits such executions. In so doing, they have interpreted Supreme Court doctrine to allow capital punishment of any person who causes death during the commission of a Felony, regardless of that person's mental state with respect to the resultant death. Under this reading of precedent, the following defendants are eligible for the death penalty: the driver of a getaway car who kills a jaywalker, the burglar who starles an elderly homeowner and causes a fatal heart attack, and the robber who unknowingly punches a hemophiliac. Such counterintuitive results become conceivable when eligibility for the death penalty is untethered from the defendant's culpability. This disconnect results from an overly mechanical interpretation of the Supreme Court's two key cases applying the Eighth Amendment to the Felony Murder context: Enmund v. Florida (1) and Tison v. Arizona. (2) Although these cases have been read to permit execution of nonculpable killers, the holdings of both decisions impose a high level of culpability for execution of accomplices in Felony Murder, on the ground that death should be reserved for the most culpable offenders. In overturning the death sentence of an accomplice in a fatal Felony, the Enmund majority stated that a participant in a fatal Felony is ineligible for capital punishment if he "does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." (3) In upholding the death sentences of two accomplices in a fatal Felony, the Tison majority permitted capital punishment of felons "whose participation is major and whose mental state is one of reckless indifference to the value of human life." (4) Thus, subsequent readings of Enmund and Tison that permit the execution of actual killers regardless of culpability are largely based on what they did not say about a question that was not before them. To be sure, the Enmund majority did not say that those who "kill" are eligible only if they intend death, but neither did it say they are eligible regardless of their mental state. The Tison majority concluded that Enmund "held" that capital punishment could be imposed on "the Felony Murderer who actually killed," (5) but only "when the circumstances warranted." (6) Because both cases concerned accomplices of intentional killers, neither Court specified whether those who "killed" included all who caused death, by any means, and with any mental state. Yet most lower courts have assumed that anyone causing death in a predicate Felony is death-eligible, regardless of any culpability. Omitting consideration of a culpable mental state is at odds with a central background principle of Eighth Amendment law: that we may only execute people to advance deterrence and retribution and that neither can be furthered if the person does not act with culpability. …
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making the best of Felony Murder
Boston University Law Review, 2011Co-Authors: Guyora BinderAbstract:Although scorned as irrational by academics, the Felony Murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the Felony Murder doctrine can be best justified, and confined within its justifying principles. To that end, this Article seeks to make the best of American Felony Murder laws by identifying a principle of justice that explains as much existing law as possible, and provides a criterion for reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor’s aims as well as the actor’s expectations, this Article proposes a dual culpability principle, which justifies imposing Murder liability for killing negligently in the pursuit of an independent felonious purpose. A review of current Felony Murder rules reveals that most jurisdictions condition the offense on negligence through a combination of culpability requirements, dangerous Felony limits, foreseeable causation requirements, and complicity standards. In addition, most jurisdictions require felonious motive through a combination of enumerated felonies, causation standards, and merger limitations. Thus, Felony Murder law more or less conforms to the dual culpability principle in most jurisdictions. This sufficiently validates the principle to warrant its use as a critical standard. Many Felony Murder laws nevertheless fall short of the principle’s demands in some respects, and this Article identifies the reforms needed in each jurisdiction. More importantly, it provides the arguments of principle and precedent that lawyers and legislators will need to advocate those reforms.
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the culpability of Felony Murder
Notre Dame Law Review, 2008Co-Authors: Guyora BinderAbstract:Legal scholars are almost unanimous in condemning Felony Murder as a morally indefensible form of strict liability. This Article provides the long-missing principled defense of the Felony Murder doctrine. It argues that Felony Murder liability is deserved for killing negligently by means of a violent or apparently dangerous Felony involving an additional malign purpose independent of physical injury to the victim killed. This claim follows from the simple idea that the guilt incurred in attacking or endangering others depends on one’s reasons for doing so. The article develops this idea into an expressive theory of culpability that assesses blame for harm on the basis of two dimensions of culpability: (1) the actor’s expectation of causing harm and (2) the moral worth of the ends for which the actor imposes this risk. It contrast this theory of culpability with the narrowly cognitive theory of culpability prevailing among criminal law scholars. It shows that the cognitive theory is motivated by the aspiration to achieve a value-neutral criminal law. Next it shows that it is impossible to assign culpability for a particular injury like homicide without evaluating actor’s ends. In addition, the article shows that an expressive theory better fits the overall pattern of American criminal law doctrine than does a purely cognitive theory of culpability. Finally, it argues that liberal political theory does not require that criminal law maintain value neutrality.
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the origins of american Felony Murder rules
Stanford Law Review, 2004Co-Authors: Guyora BinderAbstract:Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" Felony Murder rule as a myth. It retraces the origins of American Felony Murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews statutes and reported case law on Felony Murder in the federal system and in every state from the Revolution to the end of the nineteenth century. It argues that early Felony Murder rules almost always conditioned Murder liability on causing death with fault, even if they did not explicitly require proof of a culpable mental state with respect to death. It also challenges the assumptions that early American criminal law was unified by its derivation from English law. The common law was authoritative in the colonies only in so far as locally received and adapted. English criminal law was viewed with suspicion in the new republic and colonial criminal law was quickly replaced with new legislation in most jurisdictions. Felony Murder liability derived from these statutes, not from earlier common law rules.
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Felony Murder and mens rea default rules a study in statutory interpretation
Buffalo Criminal Law Review, 2000Co-Authors: Guyora BinderAbstract:The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the Felony Murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the Felony Murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of Felony Murder flows from its general disapproval of strict liability, the adoption of the default rules and the retention of Felony Murder liability are inconsistent at the level of principle. This article explores this tension by examining the applicability of culpability default rules to Felony Murder provisions in the jurisdictions with both. It concludes that in many of these jurisdictions, default rules should be understood to condition Felony Murder on negligence or recklessness.
Martin Lijtmaer - One of the best experts on this subject based on the ideXlab platform.
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the Felony Murder rule in illinois the injustice of the proximate cause theory explored via research in cognitive psychology
Journal of Criminal Law & Criminology, 2008Co-Authors: Martin LijtmaerAbstract:The Felony Murder rule has long been the subject of intense criticism by the legal scholar community. Illinois abides by the proximate cause theory of the Felony Murder rule. The proximate cause theory holds felons accountable for any foreseeable deaths that occur during the commission or attempted commission of a Felony. This includes deaths of innocent bystanders caused by third parties, and even, as in two recently decided Illinois Supreme Court cases, the deaths of co-felons at the hands of police officers. Illinois courts have justified using proximate cause, a concept borrowed from tort law, on the grounds that the foreseeability requirement would temper the innate harshness of the Felony Murder rule. However, in practice, instead of placing a restriction on the Felony Murder rule, it has been applied expansively, extending liability even to those defendants whose actions appeared attenuated from their co-felon's death. This Comment explores why the proximate cause theory has failed in its purported purpose to limit the Felony Murder rule, and employs cognitive psychology as a means to explain the rule's expansive application.
William C Bailey - One of the best experts on this subject based on the ideXlab platform.
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Felony Murder and capital punishment an examination of the deterrence question
Criminology, 1991Co-Authors: Ruth D Peterson, William C BaileyAbstract:A proper test of the deterrent effect of the death penalty must consider capital homicides. However, the criterion variable in most investigations has been total homicides—most of which bear no legal or theoretical relationship to capital punishment. To address this fundamental data problem, this investigation used Federal Bureau of Investigation data for 1976–1987 to examine the relationship between capital punishment and Felony Murder, the most common type of capital homicide. We conducted time series analyses of monthly Felony Murder rates, the frequency of executions, and the amount and type of television coverage of executions over the period. The analyses revealed occasional departures (for vehicle theft and narcotics killings) from the null hypotheses. However, on balance, and in line with the vast majority of capital punishment studies, this investigation found no consistent evidence that executions and the television coverage they receive are associated significantly with rates for total, index, or different types of Felony Murder.
