Killing those who don’t kill: Felony Murder and the Death Penalty

Felony Murder: the legal concept that provides for one individual to be punished for a homicide committed by another.  Of the thirty-five states which currently have the death penalty, twenty-one of them have laws allowing prosecutors to seek death in cases where the accused was a “non-triggerman” or didn’t actually kill anyone but was part of the underlying felony in which someone was killed.  In order to fulfill the requisite element of intent for first degree murder, the defendant’s intent to commit the underlying crime is transferred to an intent to commit murder.  Supporters argue that in theory this will deter people from acting in groups when committing dangerous felonies, which in turn will reduce the number of felonies committed.  However, in actual application, the injustice of such laws is glaringly apparent.

This week Amnesty International sent out an email urging readers to sign a clemency petition for Reggie Clemons, a Missouri man on death row.  While the case is fraught with many other errors as well as his possible complete innocence for the crimes alleged, Mr. Clemons is not even accused of intending to, or being responsible for the murders which led to his death sentence.  Instead, Mr Clemons was sentenced to death for being an accomplice to the murder of two women after he was convicted for their rapes. Although the evidence that he participated in their rapes is circumstantial at best, there was no evidence that he participated in or intended for their murders to occur.  Yet, Mr. Clemons now faces execution after exhausting his legal appeals.

Another notable felony murder case which could have resulted in the death of a non-triggerman is that of Kenneth Foster.  Mr. Foster, who was driving his friend to a party when the friend got into an altercation and killed someone, barely escaped his own death in 2007 after being convicted of first degree murder.  Thankfully, after the case received international attention, Gov. Rick Perry commuted Mr. Foster’s sentence.

Perhaps more disturbing, are the cases in which the actual triggerman, the person who is directly responsible for the victim’s death, receives a life sentence but the non-triggerman is executed.  In 2009, Texas executed Robert Thompson while his more culpable co-defendant Sammy Butler received a life sentence.  In 1996 Steven Hatch was executed by Oklahoma while the man responsible for killing two people also received a life sentence.  These are just two of dozens of cases in which actual killers received a lesser sentence.

While some of the underlying crimes committed by non-triggermen are indeed horrendous – rape, burglary, robbery, etc. – they are not murder.  If we live in a society where it has been decided to reserve the death penalty for the worst of the worst crime, murder, then how can the execution of  those who have never murdered be justified?