In Gregg v. Georgia, the Supreme Court held that the death penalty was constitutional so long as it provided a non-arbitrary statutory mechanism for determining who are the worst of the worst, and therefore, deserving of the death penalty. As a general matter, this process of narrowing the class of death eligible offenders is done through the codification of aggravating factors. If the jury finds beyond a reasonable doubt that one or more aggravating factors exists, then a defendant convicted of murder is eligible for the ultimate sentence. There is, however, a critical, unanswered, and under-theorized issue raised by the use of aggravating factors to serve this constitutionally mandated filtering function. Can death eligibility be predicated on vicarious aggravating factor liability—is there vicarious death penalty liability?
A pair of cases, collectively known as the Supreme Court’s Enmund/Tison doctrine, recognize that there is no per se bar on the imposition of the death penalty for non-killing accomplices. But these cases considered only felony murder liability and did not address the question of whether a non-killer can be rendered death eligible on the basis of vicariously imposed aggravating factors. Presently, many state statutes allow aggravating factors to be proven vicariously (or are silent on the question); under such a rule, the existence or absence of one or more aggravating factors will often bear little relation to the defendant’s individual culpability. Because a defendant can be made eligible for capital murder through his participation in the crime with others—he is liable for murder as an accomplice, under a theory of co-conspirator or Pinkerton liability, or felony murder—in many cases we can have little confidence that a statute’s aggravating factors are serving their constitutional function of rationally determining who will live and who will die. This article is the first to identify this constitutional problem and to provide a framework for resolving it. After parsing a variety of capital sentencing statutes we propose a framework for determining the legislative intent behind an aggravating factor and for ensuring a sufficient level of culpability before a non-killing defendant may be sentenced to death.