00:00 [Archival]: Well her argument next to number 84-6075, Ricky Wayne Tison and Raymond Curtis Tison v Arizona.

[music]

00:11 Leon Neyfakh: Hey everyone, this is Leon Neyfakh, host of Fiasco and co-creator of Slow Burn. On today's episode of 5-4 Peter, Rhiannon, and Michael are talking about the concept of felony murder, which allows prosecutors to bring murder charges if a death occurs during the commission of a felony, even if the defendant doesn't kill anyone.

00:30 [Archival]: If you are engaged in a felony and someone is killed, it can be a co-defendant, it can be a suspect, it can be a witness, it can be someone else, you are still culpable for that murder, that homicide, that unlawful killing.

00:44 Leon Neyfakh: In 1987, felony murder came up before the Supreme Court in the context of capital punishment in a case called Tison v Arizona. The court held that two brothers, who did not commit or even plan a murder, could nonetheless be sentenced to death. This is 5-4, a podcast about how much the Supreme Court sucks.

01:09 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that hover over America like vultures over a dying man in the desert.

[laughter]

01:23 Rhiannon: Perfect.

01:23 Peter: I am Peter, Twitter's @thelawboy, I'm here with Michael.

01:28 Michael: Hey everybody.

01:29 Peter: And Rhiannon.

01:30 Rhiannon: Hi everyone.

01:31 Peter: And today we are talking about Tison v. Arizona. This is a case about the death penalty, but more specifically and more importantly, it's a case about the felony murder rule. Felony murder is a rule whereby a person can be charged with murder if they commit a felony and someone else dies during the commission of that felony, even if they didn't actually kill them. So if person A steals a car, person B witnesses it and dies from a heart attack, person A could be charged with murdering them, and in some states, potentially sentenced to death. And the question here is whether sentencing someone to death under this rule violates the Eighth Amendment, which prohibits cruel and unusual punishment. The Eighth Amendment has long been a battlefield, mostly because the term cruel and unusual punishment doesn't have any clear meaning, and conservatives have had interesting approaches to this. Originalists, and we're not dealing with an originalist interpretation here today, but originalists, like Scalia, have interpreted it to mean what would have been cruel and unusual at the time of the constitution's passing.

[chuckle]

02:50 Rhiannon: God.

02:50 Peter: And, you know...

02:51 Michael: Bring back the iron cross or whatever, right?

02:53 Peter: Yeah.

02:53 Rhiannon: Yeah, yeah, yeah.

02:55 Peter: And other conservatives have just taken all these other sort of wishy-washy approaches that we'll get into that sort of are designed to protect reactionary laws and reactionary institutions. So Rhi, wanna give us some background here?

03:12 Rhiannon: Sure thing.

03:14 Peter: Cause it's a juicy one.

[chuckle]

03:16 Rhiannon: Yeah, it definitely is. Just starting off with a little bit of legal background before, so obviously there's a long and fucked up history of the death penalty in general being litigated at the Supreme Court. And in fact, this isn't the only case where felony murder was at issue. So in 1982, actually just four years before this case, Tison goes up to the Supreme Court. The justice is held in Enmund v Florida that the death penalty can't be imposed on someone who did not kill, attempt to kill, or intend to kill another person. So that was in the case of a getaway driver, somebody was just in a car while other people went and robbed somebody, somebody died in the commission of the robbery and the getaway driver, the Supreme Court said, "That's not a murder that warrants eligibility for the death penalty." Now, the court that decides Enmund, those justices, it's basically the same court that, in 1986, Tison v Arizona comes to. Now, there is one difference in that Justice Scalia is now on the court, but it's basically... They traded out a conservative for a conservative, right? But all that said, the three justices who dissented in Enmund, which is to say these three justices would have wanted somebody who "participated" in a murder by just being a getaway driver, they would have wanted that person to be executed. Those three justices are now in the majority here.

04:43 Michael: Right.

04:44 Rhiannon: So the point of my saying this is that, at the time this comes to the Supreme Court, the rule is that you cannot be executed if you did not intentionally kill anyone. And this comes out of principles of proportionality, which is the general idea that the punishment should fit the crime, and an idea that you should only be eligible for the death penalty if you are "the worst of the worst," meaning you've committed the worst crime, murder, but committed it in the worst way, something that's especially heinous or cruel, etcetera. So moving into the factual background of this case. Just to set it up, when we're talking about why the result comes down differently here, just a few years after the Enmund case, up top got a say, this isn't just a getaway driver case, okay. This case comes out of a prison break. So a man named Gary Tison is incarcerated in Arizona, and he, along with his wife and three sons, make plans to break him out of prison. Along with his cellmate. So in July 1978, his three sons, Donald, Ricky and Raymond enter the State Prison where Gary is, and they bring with them a cooler, a large ice chest, filled with guns.

[laughter]

06:00 Rhiannon: This is the late '70s, I guess you can take coolers with guns into prisons at the time.

06:06 Peter: No one's checking the cooler.

[chuckle]

06:08 Rhiannon: Right.

06:08 Michael: The late 1970s were apparently completely indistinguishable from the 1870s, 1770s. It's just like the fucking wild west.

06:17 Rhiannon: Exactly. Yup.

06:18 Peter: Right.

06:18 Rhiannon: Yep.

06:18 Peter: In our DC v Heller case we talked about bank robberies in the '30s, how like... They were just an epidemic, right, everyone's getting away with it, and apparently it was like that with prison breaks until like 1985.

[chuckle]

06:30 Rhiannon: Right, right. So they have their cooler filled with guns, the Tison brothers arm their dad and the cellmate, and the whole group basically locks up the prison guards in a closet and they make a run for it. No shots are fired at the prison, no one is killed there, but their getaway plan basically blows up a few days later. That's where things get really messy. After a couple of days, they get a flat tire out in the desert and they flag down a passing motorist with the intent of stealing their car. The car that stops to help them has a family of four in it, it's a husband, a wife, their young daughter and their very young niece. After kidnapping the four people and taking them out into the desert, Gary Tison, so the dad, and his cellmate, so the two men that just escaped from prison, murder the family by gun shot.

07:21 Michael: Right.

07:22 Rhiannon: Now, the three brothers, Donald, Ricky, and Raymond Tison, they are present and they witness the murders, but they do not kill the family. They don't fire any shots.

07:31 Michael: Right. They were like getting a jug of water for them or something right?

07:34 Rhiannon: Right.

07:34 Peter: Yeah, they were... They represented that they were getting water for the family, so pretty clear that they, at the very least, did not think that the family was going to be murdered.

07:43 Michael: Right.

07:43 Rhiannon: Right, yes. Now eventually this group is apprehended by police and there's a shoot out at that time. One of the sons, Donald, is killed at the shoot out. Gary Tison, the dad, he escapes into the desert and he eventually dies of exposure... And is exposure a real thing? Do we just say that because it's the '70s or whatever?

[chuckle]

08:01 Michael: No, it's a real thing.

08:03 Peter: It's a real thing.

08:05 Michael: It's like the thing... The elements.

08:06 Rhiannon: All right. Well, I have a JD not an MD, excuse me.

08:08 Peter: Yeah, the elements, it's like... You can't...

08:09 Michael: Yeah, it's like, the desert... It's really hot during the day, and then really cold at night. Either of those are hard on the body.

08:17 Rhiannon: Okay Mr. Meteorologist.

08:18 Peter: I think that... I see what you're saying though, 'cause it's not like a specific thing, and I... My guess...

08:23 Michael: It's not like consumption. No. If that's what you're saying.

08:25 Rhiannon: That's what I was thinking of, consumption.

08:28 Michael: It's not like that, no. No. You can definitely still die of exposure.

08:34 Rhiannon: Okay. So Gary Tison dies of exposure in the middle of the desert. Gary's cellmate then, and the two remaining sons, Ricky and Raymond, are arrested. Now, the two brothers are charged under Arizona's felony murder rule, which provides that a killing that occurs during perpetuation of a robbery or a kidnapping is capital murder. So you're eligible for the death penalty for that. The State of Arizona also has an accomplice liability provision that states that each participant in a kidnapping or robbery is legally responsible for the acts of his accomplices. So in the end, this isn't just a getaway driver case, right? All of the people involved here have a higher degree of participation in the alleged offenses than sort of just waiting in a car for somebody, right? The fact of the murder are horrific, but also important to remember, I think that some of the worst rules that we get in criminal law, some of the worst trends in punishment that we have in the United States, come out of cases like this where the particular instance is particularly hard to defend.

09:43 Michael: There's like a saying for that in law, right? Like hard cases make bad law, right. If you try to make the law fit the most extreme cases, you're gonna end up with a shitty rule overall.

09:53 Rhiannon: Exactly, but I think that's all the more reason to have clear bright line standards...

09:57 Michael: Absolutely.

09:58 Rhiannon: And a Supreme Court that's not so deferential to Law and Order legislators, to a public that's influenced by sensationalist media, and that kind of thing.

10:08 Michael: Absolutely. Yeah, and on top of that, very early, I think one of the first two paragraphs of the opinion, Sandra Day O'Connor, it mentions that a lot of the information they have comes from a plea allocution from the brothers.

10:21 Rhiannon: Yeah.

10:22 Michael: But the plea ultimately was thrown out. And as it turns out, the brothers were willing to plea to basically life without parole, but they weren't willing to implicate their mother. And the state wanted them to implicate the mom.

10:35 Rhiannon: Right.

10:36 Michael: Apparently she helped in the planning and procurement of the weapons and maybe at one point was supposed to find them a plane to get to Mexico.

10:44 Rhiannon: What a badass.

10:45 Peter: I'm sure she would've pulled that off.

[laughter]

10:47 Michael: Yeah, yeah. She ultimately was tried and convicted and sentenced to I think a year of prison for her role in this, and then was released on parole I think in less than a year.

11:00 Peter: More sexism against men, but go on.

[chuckle]

11:02 Michael: Right, there you go.

[laughter]

11:02 Peter: Yeah.

11:04 Michael: But so, the whole reason this entire case exists is literally leverage against the mom. The only reason the Supreme Court case exists, this entire body of law, is because Arizona wanted to put this woman away for longer who had nothing to do with anything after, at most, the purchase of the weapons, right?

11:25 Rhiannon: Yeah.

11:26 Michael: She wasn't intimately involved in any of this, least of all the murders, but they wanted to put her in jail for a long time, and the kids wouldn't cooperate with that. They were willing to go to prison for life, but they weren't willing to put their mom away as well. And the only reason the State is seeking the death penalty here is because it's all they have above what the brothers were already willing to accept. And so here we are, litigating what's the most outside extreme case where you can put someone to death.

11:57 Peter: Right.

11:57 Rhiannon: That's a really good point.

11:58 Michael: So to give some color about the defendants here, they're 19 and 20 at the time of the crimes. Their dad is a career criminal, he was in prison for killing a prison guard in a previous prison escape attempt, which at least [chuckle] some people had speculated his wife aided and abetted in that, and slipping him a hand gun, although that is...

12:21 Rhiannon: The guy has an MO.

12:22 Michael: Right. So he's in and out of prison multiple times, the wife is very devoted to him and very religious, apparently.

12:31 Peter: I gotta say, this makes the cooler thing even crazier because this guy already broke out, killed a fucking guard, and they're like, "I guess it's just Coca-Cola in that cooler."

[laughter]

12:45 Peter: Just a colorful anecdote about this family here. When the kids were visiting...

12:51 Rhiannon: No, let Michael do it.

12:53 Peter: Oh, okay, yeah, yeah, yeah, that's fair.

12:53 Michael: This is an important fact that I brought to this case, so. Dorothy did regularly visit her husband in prison with her children every Sunday in order to maintain not only her relationship with her husband but also the children, those two ideas were sometimes in tension because she wants the kids there, like getting to know their dad and knowing sort of an idealized version of the dad where she told them he was innocent and he's a good guy and all this too, but she also wanted to maintain their relationship, which meant that she would perform sexual favors for him. While the kids held up a newspaper so that they wouldn't have to watch their mom going down on the dad right in the middle of the prison yard, a privilege she was granted because he was apparently quite liked by the guards in the prison, some of them.

13:48 Peter: And I have to say, so those kids grew up to commit this crime, and I feel like if you had to hold a newspaper up while your mom sucked your dad's dick as a child, you're allowed to commit a couple of murders.

[laughter]

14:06 Michael: They didn't even do that. So I think they came out all right, personally.

14:13 Peter: So to reiterate a little bit, the felony murder rule says that if person A is committing a felony and person B dies as a result, person A can be charged with their murder even if they didn't intend to kill them. And the question is not whether this rule is constitutional, but whether is sentencing someone to death under this rule is constitutional. And Rhiannon mentioned the Enmund case, where the court had previously held that you couldn't execute someone without them having an intent to kill, and despite that precedent, the court in this case holds that the Tison brothers can be executed because although they didn't plan to kill or participate in the killing, they could have anticipated the use of lethal force. And there are a few items to discuss here, but I think we need to talk initially about the absurdity of the felony murder rule itself.

15:10 Peter: The felony murder rule flips the core principles of criminal law on their head. Maybe the most foundational element of criminal law is that you prosecute criminals based on their intent, that's the difference between, for example, classic first degree and second degree murder, whether the murder is premeditated, the law is making a judgment about the morality and dangerous-ness of the person based on what they were intending to do. Felony murder does away with that entirely saying that even if you had no intent to kill someone, you can still be charged with murder because you were already being a very bad boy, and it's taking something that is literally not murder and saying, "No, we're gonna call it murder though."

15:54 Rhiannon: Yeah, right, exactly. And typically, in criminal law, you need two things to have what is legally a crime. You need mens rea, which means a state of mind and actus reus, which is the act of committing the crime. And the idea is that you don't just prosecute someone for a crime if they only thought about a crime but didn't commit it, and by the same token, you prosecute crimes more harshly if someone planned it, really meant it, that kind of thing as opposed to not meaning it and just doing something negligently or recklessly. And so here in the case of the Tison brothers, you have neither one in this case. They didn't intend for anybody to die, they didn't intend to murder anybody, and they also didn't commit the act of murdering someone.

16:37 Michael: Right, and I think there's a good comparison here, which is drunk driving, which is something where you don't intend to kill someone, maybe you understand there's a risk that once you're drunk and you get behind the wheel that you're less inhibited and you might loose control and you might hit someone and that's pretty accepted, but you're not going out thinking, "Well, now that I've tied one on, I'm gonna go fucking run someone down in my car." But you actually do the act, right, you drive the car, you hit someone, and you kill someone, and that's not considered an intentional homicide. It's considered a reckless one, under law, it's like a manslaughter basically, and treated much less seriously than felony murder, even though in neither case do you have an intent to kill, and in only one case do you have the person being tried here actually committing the act that kills someone and that's the drunk driver and they're getting off with a few years in prison.

17:44 Peter: Yeah, and maybe we're getting a little ahead of ourselves here, but perhaps that discrepancy can be explained by the types of people that find themselves at the mercy of these laws. If you look at the people who are being targeted by the legislatures by felony murder laws, it's obviously people who are involved in crimes and maybe engaged in robberies, etcetera. Drunk driving, however much more likely to be perpetrated by a judge's child, if I had to guess or by...

18:11 Michael: Justice Kavanaugh himself.

18:13 Rhiannon: Or Georgia.

[laughter]

18:18 Michael: I'm not saying he has. I don't know. It seems possible though. He's fucking driven drunk, let's be real.

18:27 Peter: Look, I don't want to sit here and say that Brett Kavanaugh is a serial drunk driver. I can't say whether every Friday he gets shit-faced and whips around his neighborhood just ramming over mail boxes and saying, "What are you gonna do? Sue me?" I don't know what he does on Fridays.

[laughter]

18:54 Peter: To be clear about what we're saying about people like the Tison brothers, we're not saying that there should be zero liability for something like what they did. What they did was probably aiding and abetting murder, there's a good chance. They could be charged with that. They could be charged with any of the other unbelievably numerous crimes that they committed in the process of breaking their father out of prison and jacking a car.

19:20 Michael: Right.

19:21 Peter: So, we're not suggesting that they could avoid responsibility for their actions here, we're simply saying what I think is obvious, which is they didn't commit murder. They didn't intend to kill anyone, they didn't try to kill anyone, and they didn't actually kill anyone.

19:35 Rhiannon: Right, exactly. And in Enmund, the case that came before this one, the recognition that you don't get the death penalty without intending to kill someone, that's trying to put this important proportionality principle into practice, meaning that if there's lower culpability in death, that means you should not be eligible to receive the death penalty because it's not the worst kind of murder that can happen.

20:04 Peter: Right. So the question here again, is whether this violates the Eighth Amendment and its prohibition against cruel and unusual punishment. And what the court does, cruel and unusual is such a vague term that the court has tried to use it, but it's basically a different standard and thought about whether it's proportional to the crime.

20:26 Michael: Right.

20:26 Peter: And so, this inquiry is where conservatives tend to go off the rails. And in determining what is cruel and unusual or what's proportional to the crime, one of the main inquiries that they do is trying to figure out whether society finds this acceptable. That's how you know if something's cruel and unusual, and O'Connor basically surveys the state laws to see how many states allow for the execution of someone for similar felony murders. She says that a bit under half of the states would allow for execution in these more severe felony murder cases, and only 11 states that otherwise execute criminals would forbid it.

21:09 Peter: And she essentially says that, that that suggests that it's not cruel and unusual, because it shows that there are a bunch of states that would do this, and that shows that the society accepts the death penalty in the situation. And this is a very common conservative tactic in these cases where they look at the state laws and say, "Well look, lots of states do it, and if it's widely used, it can't be cruel and unusual punishment." And this argument is absurd. First of all, it's an abdication of the court's role here. The court serves as a check on the states, and its role is to determine whether the state here is violating the Constitution. So why is it functionally deferring to the states on the question of whether something is cruel and unusual punishment. Second, whether something is constitutional, can't really be a matter of how popular it is. I'm sorry.

22:00 Rhiannon: Exactly, right, right.

22:02 Peter: It just can't. And how can it be that whether a punishment is proportionate to the crime is somehow dependent upon what other states are doing, or what anyone anywhere else is doing? If you're getting drawn and cornered for stealing a DVD, does it matter that someone else is experiencing the same thing one state over?

22:25 Rhiannon: Right.

22:25 Peter: Fuck no, of course not. We've talked before about how reactionaries weaponize history, and this is another example. They are using the past to rationalize and vindicate the injustices of the present. Yes, many states allow for execution for felony murder, but that can't possibly answer the question of whether the punishment fits the crime. And the dissent points out a couple of key things. First, the majority ignores that many states have abolished the death penalty entirely.

22:55 Rhiannon: Right.

22:56 Peter: Second, as the dissent points out, the proper question isn't, which states allow for the death penalty in these circumstances? The proper question is whether those states actually impose it. And between 1954 and 1982, there were 362 felony murder cases, only six executions, all of which took place in 1955. So at this point, there hadn't been an execution of a felony murderer in decades. So even by the standards the court claims to adhere to, the court's wrong. Execution for felony murder is exceedingly rare and antiquated at this point in time.

23:34 Michael: And that's felony murder, period, right?

23:37 Peter: Yeah.

23:37 Michael: This case is doing all these fine distinctions about types of felony murder and your proximity to the physical location of the murder and all this shit, and this is just like felony murder, overall.

23:51 Rhiannon: Right, yeah, any of them, yeah.

23:54 Michael: Any of them. It's worth highlighting that they're trying to really fucking slice and dice this as narrow as possible to come up with an excuse to kill these kids.

24:04 Rhiannon: Yeah.

24:04 Peter: Right. So, related to the dissentt's point, even if you're trying to measure what society deems acceptable, this is a haphazard way to do it. There are a thousand different metrics you could utilize to figure this out. It's not just which states do it. It's also not just how often it's imposed, but let's say how often prosecutors bring it? What polling shows? What experts on criminal law say? On and on and on, right? The conservative approach here is acting as if there is some sort of objective answer to the question of, does society find this acceptable? And of course, there's not. That's not a question that can be objectively answered.

24:43 Michael: No.

24:44 Peter: Okay, so next, O'Connor turns to the fact that this is, as we mentioned, seemingly cutting against how criminal law treats the question of a criminal's intent. If the person doesn't intend to kill, how can they be prosecuted, let alone executed from murder? And she goes on like a morality rant about how indifference to human life is arguably just as bad as wanting someone to die.

25:12 Michael: Right.

[laughter]

25:14 Peter: And I gotta say, no. [laughter] It's freaking not the same. A little thought experiment here. You have to enter one of two rooms. One has a person who wants to kill you and plans to do it when you enter the room. The other has someone who is indifferent to whether or not you die.

25:34 Rhiannon: Okay.

25:35 Peter: In my mind, this is not a hard decision. [laughter] You've probably been in a room with someone who's indifferent to whether or not you die. I think we probably all have.

25:48 Rhiannon: I'm on a podcast with a couple of people right now.

[laughter]

25:51 Michael: I was gonna say, Peter. I've been in the recording studio with Peter and that guy doesn't care about anyone.

[laughter]

26:00 Peter: Look, I don't know, 'cause I haven't done the research on what do we do to our listeners.

[laughter]

26:10 Peter: Look, anyone who pretends this is a hard decision is a fucking moron. Not caring about death or human suffering is obviously like the sign of a sociopath. But clearly, actively wanting it is clearly worse. What else can you say about it? It's apparent on its face and to just sort of like fucking positive, as if it's like this fascinating thought experiment that no one can possibly answer. It's just such bullshit.

26:39 Rhiannon: Yeah, clearly, indifference to somebody dying is not as bad as actively wanting somebody to die. And for death penalty jurisprudence, you can't just start muddying the waters like O'Connor is doing in this opinion. In order to reduce arbitrariness and discrimination in the death penalty, the Supreme Court has required, there'd be aggravating circumstances that make a murder particularly bad. Plus, the Supreme Court requires employing this proportionality doctrine, all in order to say that this class of people, these kinds of murders, they should not be death penalty eligible. And so, you don't have a non-arbitrary and non-discriminatory death penalty framework without clear standards. So you can't just start injecting into that framework, stuff like, "Maybe indifference is kind of like intentionality. Don't you think?" That doesn't work.

27:33 Michael: Right. And there's a little bit of a rhetorical sleight of hand here, because the majority opinion, they point to someone who tortures someone without intending to kill them, and then the person dies, or someone who opens fire into a crowded bar, not intending to kill someone, but obviously, very well, could or does kill someone, and those are kind of classic depraved heart murders. And the idea is if you have such a reckless indifference to other people's lives, that your actions cause someone else's death that even if you didn't intend it, that can still be murder.

28:09 Rhiannon: Yeah.

28:09 Michael: But the important thing is that your actions...

28:12 Rhiannon: It's the act.

28:13 Michael: Still directly cause someone's death.

28:16 Rhiannon: Exactly.

28:17 Michael: And Brennan in dissent calls this out, he's like, "Look, you don't have either here. You don't have the intent to kill, but you also don't have the act of killing someone, which is what's required in depraved heart murders." So this is just defining murder down to the point where it's indistinguishable from other crimes.

28:37 Peter: And almost imposing a sort of bystander liability.

28:41 Rhiannon: Yes.

28:42 Peter: The only thing that you could do in the Tison brothers shoes is try to actively stop a murder, which it's pretty clear cut in criminal law, you don't have a real affirmative obligation to go out and stop crimes because they might happen or even if they're likely to happen.

28:57 Michael: Right. You can't be held criminally liable for failing to prevent someone else from committing a crime.

29:03 Peter: Right. So O'Connor wraps up by saying, Look, the Tisons had a "High level of participation in these crimes," but that sort of varies the key point, which is, that they didn't have a high level of participation in the actual murders.

29:20 Michael: Right.

29:21 Peter: The crimes that they participated in, are separate and they can be charged with them.

29:26 Rhiannon: Right.

29:27 Peter: She also says, "We will not attempt to precisely delineate the particular types of conduct and states of mind, warranting imposition of the death penalty here." Except, she sort of did, right?

29:38 Michael: Yes.

29:38 Peter: She went on about how you don't need explicit intent to kill, and I think what she really means is, when it comes to what crimes you can impose the death penalty for, "Let's not rule anything out. Let's keep everything on the table." The idea that anticipation that something might occur is the same morally or even logistically as wanting it to happen and willing it to happen is bullshit on its face. If you're going 10 over the speed limit, I think you understand that you are more likely to cause a car accident than if you were obeying it, but that's not the same thing as intentionally causing an accident.

30:17 Rhiannon: Right.

30:17 Peter: No one would even pose it that that's a possibility. It's inherently ridiculous.

30:21 Rhiannon: Yeah, I think that's right. So turning to the dissent, the dissent here is written by Justice William Brennan, classic, strong, liberal Justice, and the dissent is pretty good. He starts off by noting that this doctrine is a relic from eras where every felony was punishable by death. It didn't have to be murder. And he also points out that in most American states and across Europe, you cannot punish felony murder by death. He also says, like we said earlier, that in Enmund versus Florida, back in 1982, the Supreme Court held that a person couldn't be executed absent the intent to kill. And if you read Enmund, it's hard to understand how you could possibly allow the sentence of death for the Tison brothers here, and Brennan says that this is inconsistent, and the court has invented a new rule here where you don't need the intent to kill as long as you were a major participant in a felony and acted with disregard for human life.

31:19 Michael: Right.

31:19 Rhiannon: And he also points out something important, which is that while Justice O'Connor takes for granted that the Tison brothers were indifferent to the lives of the victims, there is evidence that the brothers had gone, like we mentioned, to get the family water to drink when they were murdered by their dad, and they testified to being both unable to stop the murder and also regretful that the murders happened. Now that doesn't make the Tison brothers heroes, but it does cut against the court's conclusion that they were just indifferent about it all, they didn't care, and that's really an issue for a jury.

31:56 Michael: Yeah, this is like fact finding the court is engaged in, which is the last thing the Supreme Court's supposed to be doing.

32:02 Rhiannon: Yup.

32:02 Peter: Right. I think it's important to contextualize the felony murder rule in the context of a broader criminal justice system that is simultaneously arbitrary and merciless. There is a history of legislation where the goal is to do nothing but give increasingly severe sentences to decreasingly severe offenses and felony murder has a strong place in that tradition. But you also have mandatory minimum sentences, three strike laws, things like that. There's countless examples of these types of laws. If you ask a conservative why those laws exist, they might say, to deter crime or to punish criminals, but research really shows that it doesn't deter crime. Obviously, these laws are not driven by social science, right?

32:52 Rhiannon: Yeah.

32:52 Peter: And I think the only way to really understand them is being driven by pure blood lust. It's the desire to believe that they are an entirely different class of human being than the people who commit these crimes and that the weight of the system should fall upon the people who do, because they could never contextualize themselves as ever being in this sort of position.

33:11 Rhiannon: Yeah, that's right.

33:12 Peter: And Sandra Day O'Connor is not interested in proportionality here. The defendants here didn't kill anyone, didn't try to kill anyone, seemed to regret that people have died. So how can Sandra Day O'Connor and the other conservatives say that execution is proportionate to the crime here? I think there's only one explanation that makes sense. They have decided that whether or not they intended to kill is not relevant. What's relevant is that they think that these people are bad people, and they belong to a class of people whose lives these Justices are ironically enough completely indifferent to. They just have no regard for whether or not they live. And so, they dance through a bunch of fucking hoops to find themselves in a situation where they can tell the state, "Yeah, you can kill these guys. Fuck 'em."

34:00 Rhiannon: Yeah.

34:00 Michael: Yeah, I think it's like pure retributive justice here where they wanted to punish someone and the person most directly responsible died in the fucking desert. And so, they needed to punish someone else. So it's like, "Why not his fucking kids, they're right there," right?

34:16 Peter: Yes.

34:16 Michael: Right and the cellmate was executed, and eventually these kids, their death sentences were commuted.

34:25 Peter: Yeah, yeah, worth noting they don't die.

34:27 Michael: Right.

34:27 Rhiannon: Yeah.

34:28 Peter: So look, the case here is about someone being executed for felony murder, but the real fundamental absurdity is someone being prosecuted at all for a murder that they did not in any real sense commit, and there are a bunch of examples of just how outlandish felony murder rules can get.

34:46 Rhiannon: It's an absurd rule, and in some states, you can fucking get executed for it.

34:51 Michael: Right, yeah.

34:52 Peter: The Tison case, you've got someone who is participating in a crime and obviously didn't participate in the murder itself, but they are creating a situation where there are life and death stakes, without a question.

35:05 Michael: It's not hard to understand the desire to see them punished heavily.

35:09 Peter: Yeah, but the felony murder rule itself gets applied to all sorts of situations where the death is so far detached from the actions of the felon that it becomes just hard to believe that this is actually a rule applied consistently across the American States.

35:27 Rhiannon: Yes.

35:28 Peter: And I think it would be useful to go through a few of those scenarios. And we wanna focus on a particular aspect of felony murder that has sort of started to crop up more and more, which is that cops will, in trying to stop a crime, kill someone, and then the perpetrator of the crime will get charged with that person's murder.

35:52 Rhiannon: Yeah.

35:52 Michael: Yeah.

35:54 Rhiannon: So one example is a girl named Masonique Saunders in Ohio. She was arrested at the age of 16 for the death of her boyfriend Julius Tate. Now, Saunders and Tate had planned a robbery, and Tate ended up being shot by an undercover police officer, but the result was that Saunders was charged with that murder. Another case, another 16-year-old, actually, Blake Layman. He was prosecuted under the felony murder rule in Indiana after participating in a spur-of-the-moment group robbery. He and his friends in that case thought that their neighbor's house across the street was empty. They went in to grab a wallet and see if they could find anything else that they could steal and sell, but the neighbor ended up being home. The neighbor opened fire on the teenagers. Layman himself was shot. He survived. But his friend that was with him was shot and killed, and Layman got charged in the murder of his friend. He was sentenced to 55 years in prison under the felony murder rule in Indiana. And we should note that that sentence eventually got reduced and he was released.

[laughter]

37:07 Rhiannon: Another 16-year-old in New York City this time, Marcell Dockery. He set fire to a mattress in his apartment in Brooklyn back in 2014, and an NYPD officer who responded to the fire later died of smoke inhalation.

37:25 Michael: Jesus Christ.

37:26 Rhiannon: Dockery is charged in murdering that police officer and was sentenced to 19 years in prison in 2017.

37:35 Peter: Obviously, that is horrific.

37:36 Michael: So fucking sneaky.

37:36 Rhiannon: It's fucking insane.

37:37 Peter: How fucking ass-backwards does a cop need to fall into his own death? [laughter] You're some shitty 16-year-old. This isn't like a fucking breaking and entering situation, right?

37:47 Rhiannon: Right, right.

37:47 Peter: You're a 16-year-old lighting a mattress on fire. I can readily see myself doing this at 16.

37:55 Michael: Absolutely.

37:57 Peter: 80% of the 16-year-old population, you see a mattress, you got matches or something, and you're gonna light that shit on fire. Some moron fucking cop manages to turn a mattress fire into his own death.

[laughter]

38:11 Peter: And you get a fucking funeral with a 21 gun salute, the mayor tweets about your service, and the fucking kid gets charged with murder.

38:22 Rhiannon: It's fucking wild. Another one, last year, an NYPD detective was shot and killed by a fellow officer while responding to a robbery. Both men who committed the robbery, Christopher Ransom and Jagger Freeman were charged with the murder of that officer, even though it was another police officer who killed him. And by the way, Freeman, one of the participants in the robbery, his participation in the robbery was only as a look out, important to note that, also charged with murder.

38:54 Peter: It is so wild that cops have figured out that not only do you not get in trouble when you kill someone.

39:01 Michael: Other people do.

39:01 Peter: But you can get some other person charged with the murder, it's fucking crazy.

39:06 Rhiannon: Just to highlight the arbitrariness with once you are applying the felony murder rule, how it ends in different outcomes of case to case. So back in 2009, Robert Thompson was executed in Texas after being charged with felony murder. And what happened in his case was during a joint robbery of a convenience store, Thompson and his co-defendant Sammy Butler, they both fired shots at two employees, but it was actually Butler's bullet that ultimately killed one of the employees. Both shooters were eligible for the death penalty, but they had two separate trials and those came to two separate conclusions. Thompson is sentenced to death while Sammy Butler was not and...

39:49 Peter: The guy whose bullet actually killed him was not sentenced to death.

39:54 Rhiannon: Right. Right. Exactly. So just a highlight that when you're using arbitrary and vague rules and you don't have clear standards, this is exactly what it leads to.

40:01 Michael: Right, and Brennan kinda makes this point that's then the conclusion of his dissent, which is like, he doesn't think it's possible to create real bright line standards for the death penalty and that it's always gonna be arbitrary, and that's why the death penalty in general should be considered cruel and unusual and I think that's a pretty good example.

40:21 Peter: Right, absolutely.

40:22 Michael: But at the very least, in the felony murder context.

40:25 Rhiannon: Yeah, exactly.

40:26 Peter: And a lot of these cases, we mentioned a lot of 16-year-olds here, there are a lot of situations where you have sort of these mass crimes where peer pressure is a huge part of it, and you have these kids getting drawn into a robbery or a fight, where someone dies and these kids who were just sort of pulled into it due to peer pressure, get charged with murder despite not being involved with it really at all, and if any part of you believes that our criminal justice system is targeting the rehabilitation of the people it prosecutes, you have to believe that people like that are the most likely to be rehabilitated, and the exact opposite approach is being taken by the system right now where they're getting charged with murder for what is basically a combination of two things, one, committing a crime and two, being in close proximity to a murder.

41:20 Rhiannon: Yeah, yeah, I think that's a really good point, Peter. And studies show that felony murder rules end up getting applied disproportionately to teenagers, and that's because of the things that we know about child psychology and development, that teenagers are more likely to be caught up in group crimes and group think that ends with unintended consequences.

41:42 Peter: And so, as we wrap up, I wanna bring up one thing, this is a death penalty case, and the question is whether the death penalty for felony murder is constitutional, but I think that there's a case to be made that felony murder as a concept is cruel and unusual punishment. It is prosecuting someone for a crime they did not commit, it is manufacturing a murder charge, it's saying that your proximity to a murder can result in you being charged with murder regardless of your intent. I think if there were a coherent Eighth Amendment, something that was really designed to target injustices in our criminal justice system, it's not crazy to think that it would forbid the rule all together, let alone the death penalty for it.

42:29 Rhiannon: Yeah, I think that's right. When I think about felony murder and particularly the states where it's possible to be executed for committing a felony murder, the big concern in my mind with the rule is that if we allow someone to be executed for felony murder, how much state violence logically can flow from that. And this is a point about the effects of the death penalty in general, not just felony murder, death penalty on sort of broader understandings of the relationship between state and individual, but if we accept that the state can murder someone who committed a felony without intending to kill somebody, we can accept much easier, the other ways that the state kills people, where we accept that a cop can shoot a black man in the street, and that's okay. And when the standards are unclear, when there aren't bright line rules for who gets put into death penalty eligibility, the standards end up being unclear elsewhere.

43:23 Peter: Right, it's a great point. And I think to take a step back and look at the way that conservatives view the Eighth Amendment and similar circumstances, conservatives claim that you can't have judges determining by themselves what is cruel and unusual punishment. It's too arbitrary, right? And what they do instead is replace it with a calculus that is designed to feel less arbitrary, but in fact is not. O'Connor does a survey of state laws as if that can quantifiably answer the question of whether society approves of this practice. This is one of the big themes of formalistic reasoning, pretending as if you are almost mathematically reaching objective outcomes, when in fact your reasoning is built on a foundation of completely arbitrary rules and metrics, and that's how courts take a question as simple as, should we execute people for murder if they haven't murdered anyone and distort into something needlessly unrecognizable.

44:21 Rhiannon: Yeah.

44:22 Michael: Yeah.

[music]

44:26 Peter: Next week is Buck v. Bell.

44:29 Rhiannon: Hell yeah.

44:30 Peter: It is a case from the 1920s. We're going way back.

44:32 Rhiannon: Taking it way back.

44:34 Michael: Retro.

44:34 Peter: And it's about eugenics.

44:36 Rhiannon: 'Cause if you thought the Supreme Court only dabbled in racism, they also dabbled in all this shit too.

44:43 Peter: Yeah, and if you can imagine the modern court uninhibited by the last century of social progress.

44:54 Michael: A sneak preview of what the court will look like in 10 years if there are two or more conservatives. [laughter] 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song as by Spatial Relations.

45:23 Leon: From the Westwood One podcast network.