Amicus Brief — Enmund v. Florida

J..

11.5

IAN 26 1982

No. 81-5321

sev.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

EARL ENMUND,

.. Petitioner,

STATE OF FLORIDA,

Respondent.

On Writ of Certiorari to the Supreme Court of Florida

BRIEF OF AMICUS CURIAE

THE WASHINGTON LEGAL FOUNDATION

DANIEL J. POPEO

PAUL D. KAMENAR

NICHOLAS E. CALIO

1812 K Street, N.W.

Suite 502

Washington, D.C. 20006

(202) 857-0240

Attorneys for Amicus Curiae,

Washington Legal Foundation

January 25, 1982

o>

WILSON - Eres Printinc Co. Inc. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Whether the Eighth and Fourteenth Amendments

allow a criminal to avoid a capital sentence imposed under

constitutionally valid State laws when he has planned

and participated in a violent crime, supplied at least one

of the deadly weapons used to execute the crime, and

disposed of the weapons in an attempt to avoid detection

after two brutal murders occurred as the natural and

probable consequence of his criminal plan?

(i)

TABLE OF CONTENTS

QUESTION PRESENTEDPEBE.

TABLE OF AUTHORI TIE

INTERESTS OF AMICUS CURA

STATEMENT OF CASE —————.——u

SUMMARY OF ARGUMENT ...0

„

I. A CAPITAL SENTENCE MAY BE PROP-

ERLY IMPOSED FOR FELONY MURDER

UNDER THE EIGHTH AND FOURTEENTH

AMENDMENTS WITHOUT BEING DISPRO-

PORTIONATE OR EXCESSIVE |... 0...

A. Reading A Specific Intent Requirement Into

The Eighth Amendment Is Inconsistent With

Previous Decisions Of This Court

B. Accepting Petitioner’s Characterization Of

His Conduct And The Kerseys’ Murders Re-

quires The Nullification Of Common Law

Principles Of Criminal Responsibility De-

veloped Over Hundreds Of Years ................

C. Petitioner’s Sentence Accords With Societal

Standards Of Decency —........0.000000000.....

1. The phrase “evolving standards of de-

cency” does not automatically imply a de-

parture from imposing capital sentences..

2. Objective indicia indicate that society ac-

cepts capital punishment for felony mur-

der in appropriate cases

(iii)

Page

5

14

16

17

17

iv

TABLE OF CONTENTS—Continued

Page

3. Legal authority relied upon by Petitioner

buttresses the conclusion that his sentence

is constitutionally valid aaa le 20

D. Deterrence And Retributive Justice Are

Measurably Served By The Imposition Of

Capital Punishment For Felony Murders 24

1. Imposing capital punishment for felony

murders will have a deterrent effect on

the commission of both felonies and

1E 24

2. Retributive justice is served by punishing

Petitioner’s felony-murder with death 27

II. RECOGNITION OF THIS COURT’S PROPER

ROLE AND A RESPECT FOR THE VALUE

OF HUMAN LIFE DICTATES THAT PETI-

TIONER’S SENTENCE BE AFFIRMED ... .. 29

CONCLUSI ON 8 —ͤ—̃ä X— 30

*

TABLE OF AUTHORITIES

Cases: Page

Coker v. Georgia, 433 U.S. 584 (1977) 7, 13, 15, 16, 17

Eddings v. Oklahoma, No. 80-5727, slip op. (U.S.

I acne 7, 9, 29

En mund v. Florida, 399 So. 2d 1362 (Fla. 1981)... 3. 9

Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170 (1917) 23, 24

Furman v. Georgia, 408 U.S, 238 (1972277 18, 22

Gregg v. Georgia, 428 U.S. 153 (1976) —................ 7,16

Hutto v. Davis, No. 81-23, slip op. (U.S. Sup. Ct.

r. 9

Lockett v. Ohio, 438 U.S. 586 (1979) passim

Powell v. Texas, 392 U.S. 514 (1968) 8, 11

Proffitt v. Florida, 428 U.S. 424 (1976) 13

Roberts v. Louisiana, 431 U.S. 633 (197777 13

State v. Hall, 176 Neb. 295, 125 N.W.2d 918

% ———T—T—T—T—T—T—T——————— 23

Trop v. Dulles, 356 U.S. 86 (195) 16

Wesley v. State, 112 Neb. 360, 199 N.W. 719

e en ES aE ET pel Se 23

Witherspoon v. Illinois, 391 U.S. 510 (1968 16

Woodson v. North Carolina, 428 U.S. 280 (1976). 13

Constitutional Provisions:

UNITED STATES CONST. amend. VIII. ...passim

UNITED SrarESs Const. amend. XV passim

Statutes:

Se PO 8 5,9

Miscellaneous:

ALI, Mopet PENAL CobR § 210.2 (Official Draft

and Revised Comments 19800) 20, 21, 22

ALI, MopeEL PENAL CobR § 210.6 (Official Draft

and Revised Comments 1980) 20, 21, 22

Brudner, Retributivism and the Death Penalty, 30

U. TORONTO L. J. 337 (1980) 28

Cavanaugh, The Justification for Punishment, 16

ALBERTA L. REV. 48 (1978) 27

vi

TABLE OF AUTHORITIES—Continued

Erlich, The Deterrent Effect of Capital Punish-

ment: A Question of Life and Death, 65 AMERI-

CAN ECONOMIC REV. 397 (1975) ........................

Erskine, The Polls: Capital Punishment, 34 Public

Opinion Quarterly 290 (1970) .............. RSE:

Field Newspaper Syndicate, “The Gallup Poll:

Support For Death Penalty Greatest In 28

err, soscccetsneenicotsnstuiduleciemncesinsiedditiae

National Law Journal, “Death Row Census Grow-

ing As Legal Challenges Continue,” January 18,

r Reena ae

North and Miller, THE ECONOMICS OF PUBLIC

r REE SECIS S BNC s Toe SATB

Time, June 1, 1981 at 13, col. ................................

U.S. Dept. OF JUSTICE, BUREAU OF JUSTICE STA-

TISTICS, SOURCEBOOK OF CRIMINAL JUSTICE Sta-

TISTICS (1980)

U.S. DEPT. OF JUSTICE, UNIFORM CRIME

REPORTS: CRIME IN THE UNITED

STATES~1980 (1981 ⸗;);)

-

Page

26

19

20

18

25

19, 20

. 19,06

26

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-5321

EARL ENMUND,

7 Petitioner,

STATE OF FLORIDA,

Respondent.

On Writ of Certiorari to the Supreme Court of Florida

BRIEF OF AMICUS CURIAE

THE WASHINGTON LEGAL FOUNDATION

INTERESTS OF AMICUS CURIAE

WASHINGTON LEGAL FOUNDATION

The Washington Legal Foundation (WLF or Founda-

tion) is a non-profit corporation organized and existing

under the laws of the District of Columbia for the pur-

pose of engaging in matters affecting the broad public

interest. WLF has more than 80,000 members and sup-

porters throughout the United States whose interests the

Foundation represents.

WLF participates and devotes a substantial portion of

its resources to matters raising criminal justice and re-

lated constitutional issues. The Foundation’s concern for

2

the physical, psychological, and financial impact crime has

on its victims, their families, and society has led to the

establishment of a Crime Victims Program. This pro-

gram is designed to advance the rights of crime victims

and to help reduce the alarming crime rate in America.

Among other activities, WLF provides educational ma-

terials, legal guidance, and assistance to the victims of

violent crime, participates in rulemaking proceedings be-

fore such agencies as the United States Parole Commis-

sion, and monitors criminal cases in which the courts

have been too lenient in sentencing violent criminals or

otherwise exhibited an insensitivity to the rights of vic-

tims and the general public.

In the instant case, the Washington Legal Foundation

seeks to advance the interests of its members and the

public by urging this Court to consider the right and the

need of the States and their elected representatives to

protect law-abiding citizens from murders and other acts

of violence which often lead to murder. The States have

a paramount right to determine their individual criminal

justice needs and how to best meet those needs without

undue interference from Federal Courts.

The Washington Legal Foundation has appeared before

this Court as amicus curiae on numerous occasions. Briefs

amicus curiae have been filed with and accepted by the

Supreme Court in the following recent cases: Zant v.

Stephens, No. 81-89 (brief filed November 19, 1981);

Murphy v. Hunt, No. 80-2165 (brief filed November 19,

1981) ; General Bldg. Contractors Assn. v. Commonwealth

of Pennsylvania, No. 81-280, 330-33 (brief filed December

3, 1981; Eddings v. Oklahoma, No. 80-5727 (brief filed

August 12, 1981) ; Edwards v. United States, No. 81-5017

(brief filed September 2, 1981); Williams v. Zbharaz, 448

U.S. 358 (1980); Consolidated Edison Co. of New York

v. Public Service Commission of the State of New York,

447 U.S. 530 (1980); United Steel Workers v. Weber,

3

443 U.S. 193 (1979); Carbon Fuels Company v. United

Mine Workers, 442 U.S. 939 (1979) ; Personnel Adminis-

trator of Mass. v. Feeney, 442 U.S. 322 (1979) ; Parklane

Hosiery Co. v. Shore, 439 U.S. 323 (1979) ; Federal Trade

Commission v. Standard Oil Co. of California, 449 U.S.

232 (1980); San Diego Gas and Electric Co. v. City of

San Diego, —— U.S. ——, 101 S.Ct. 1287 (1981); Rost-

ker v. Goldberg, —— U.S. ——, 101 S.Ct. 2646 (1981);

Moody v. Forresster, —— U.S. ——, 101 S.Ct. 1733

(1981) ; First National Maintenance Corp v. NLRB, ——

U.S. ——, 101 S.Ct. 1510 (1981).

The Washington Legal Foundation can bring a per-

spective to this case which will assist the Court in ob-

taining full consideration of the public interest issues.

WLF seeks to insure that the arguments in favor of

capital punishment—which we submit more accurately

reflect the real public interest since they consider the

rights of all citizens, not just criminals—are advanced

before this Court. Such a function is particularly im-

portant when, as here, a criminal who was a prime mover

in a violent crime which foreseeably resulted in a brutal

double murder seeks to avoid moral culpability and crim-

inal responsibility. Petitioner asks this Court to override

the authority of the State to determine the appropriate

punishment for his crime as well as to substitute its

personal judgment on factual matters for that of the

courts and jury below. Such interference will only serve

to undermine the rightful authority of the States and the

confidence of the public in the criminal justice system.

STATEMENT OF THE CASE

In the interests of judicial economy, amicus curiae,

Washington Legal Foundation, adopts for the inost part

the recitation of facts in the Florida Supreme Court’s

decision in Enmund v. Florida, 399 So.2d 1362, 1363-67

(1981). However, it is useful to briefly recount the facts

4

which are particularly material to the substantive issue

at bar.

On the morning of April 1, 1975, the bullet-riddled

bodies of Thomas and Eunice Kersey were found on the

floor of their Florida home by their daughter. Mr. Kersey

had been shot twice, while Mrs. Kersey had been shot

six times.

A chain of evidence linked Petitioner, Earl Enmund,

his common law wife, his son-in-law and his daughter-in-

law to the crime. The evidence indicated that shortly be-

fore the murders, Petitioner and a friend bought a calf

from Mr. Kersey who indiscriminately showed his wallet

to Earl Enmund. According to testimony by Petitioner’s

wife, Enmund decided to plan to rob Mr. Kersey after

seeing his money.

Further evidence adduced at trial demonstrated that a

careful ruse for gaining access to the Kerseys’ home was

devised. It included the use of two deadly firearms. While

the trial court found that it was reasonable to conclude

that Enmund had fired into the bodies of the Kerseys, the

Supreme Court of Florida ruled that no direct evidence

was introduced at trial to show that Enmund had done so.

After the murders, Enmund instructed his wife to re-

move a .22 caliber pistol from a hiding place in their

house. The pistol had formerly been in the glove com-

partment of the car identified as that driven to the rob-

bery by Petitioner. Petitioner and his son-in-law in-

structed Enmund’s wife to get rid of the guns since they

had been used to kill Mr. and Mrs. Kersey.

At trial, Petitioner claimed he was innocent of robbing

and murdering the Kerseys. Nonetheless, he and his son-

in-law were tried and convicted of first degree murder

and robbery. Pursuant to Florida law, evidence was heard

on the sentencing issue and a sentence of death was rec-

ommended. The trial court specifically considered seven

5

mitigating circumstances, including Petitioner’s degree of

participation in the crime, and concluded they were out-

weighed by the aggravating circumstances present in the

case.

The Florida Supreme Court reviewed a variety of claims

advanced by Petitioner on appeal. The court concluded

after independently examining all of the evidence that

Petitioner’s participation in the crime was “major” and

that his conviction and sentence were correct under well-

established Florida law.

SUMMARY OF ARGUMENT

Petitioner’s capital sentence is neither excessive nor

disproportionate under the Eighth and Fourteenth Amend-

ments. Nothing in this Court’s prior jurisprudence sup-

ports Petitioner’s argument that a death sentence may

not be constitutionally imposed in any felony murder case

absent a finding of specific intent to kill. Since the jury

and courts below considered all of the circumstances of

the homicidal act and of Enmund’s role in the felony in

making their sentencing decision, Petitioner was treated

as a unique individual in accordance with this Court’s

prior mandates. Thus, Petitioner’s sentence must be af-

firmed even if individual members of this Court disagree

with the assessment of the evidence reached below.

Petitioner would have this Court believe that an affirm-

ance of the Florida court’s decision would automatically

mean that all participants in a felony murder, regardless

of their intent or role in the crime, would receive capital

punishment. The fact is that the Florida law expressly

allows as a mitigating factor for capital punishment an

accomplice’s “relatively minor” participation in the felony.

Fla. Stat. Ann. § 921.141(6) (d).

Petitioner, however, played a major role in the deaths

of the Kerseys. His attorneys’ characterization of his

6

conduct (“unintentional” and “lacking moral culpabil-

ity”) and the Kerseys’ deaths (“spontaneous” and “for-

tuitous”) are merely false premises for a syllogism de-

signed to remove Petitioner’s sentence from the bounds of

constitutionality. No doubt, the squeezing of a trigger

and the resulting high velocity of the bullet takes only a

fraction of a second. But to so characterize the physics

of a shooting as “spontaneous”—a characterization upon

which so much of Petitioner’s argument hinges—would be

to remove all killings by guns and other highly efficient

weapons which produce spontaneous deaths from the im-

position of capital punishment for any felony murder. It

would also ignore the underlying calculations made by

Enmund and other such participants which clearly evi-

dence an intent to allow a killing to occur or to facili-

tate such a foreseeable outcome. In essence, acceptance

of Petitioner’s argument requires a_ nullification of

common law principles of criminal] responsibility devel-

oped over hundreds of years and forces this Court to don

the mantle of both legislature and jury in reaching that

decision.

Moreover, Petitioner’s sentence accords with present

societal standards of decency. “Decency” is not synon-

omous with leniency and the imposition of a capital sen-

tence is not an indication of societal deterioration. All

objective indicia demonstrate that society accepts the im-

position of capital punishment in appropriate cases of

felony murder. Even the legal authority relied upon by

Petitioner indicates that his sentence is constitutionally

valid. In addition, imposition of capital punishment in

appropriate felony murder cases serves both a deterrent

and retributive function.

Accordingly, Petitioner’s arguments must be rejected.

7

ARGUMENT

I. A CAPITAL SENTENCE MAY BE PROPERLY

IMPOSED FOR FELONY MURDER UNDER THE

EIGHTH AND FOURTEENTH AMENDMENTS

WITHOUT BEING DISPROPORTIONATE OR

EXCESSIVE.

Petitioner’s elaborately constructed argument for avoid-

ing his properly imposed capital sentence lacks merit.

Under the Eighth and Fourteenth Amendments, “a pun-

ishment is ‘excessive’ and unconstitutional if it (1) makes

no measurable contribution to acceptable goals of punish-

ment and hence is nothing more than the purposeless and

needless imposition of pain and suffering, or (2) is grossly

out of proportion to the severity of the crime.” Coker v.

Georgia, 433 U.S. 584, 592 (1977). Accord, Gregg v.

Georgia, 428 U.S. 153, 173 (1976). The essence of Peti-

tioner’s argument is that a capital sentence is unconstitu-

tionally excessive and disproportionate for any felony

murder conviction absent a finding of specific intent (in

the literal sense) to kill. He further contends that he

bears no greater moral culpability for his crime in which

two deaths occurred than does any other violent criminal

in a case in which no death occurred. Petitioner’s argu-

ment does not withstand analysis.

Nothing in this Court’s prior jurisprudence supports

reading a specific intent requirement into the Eighth

Amendment. The jury and courts below considered all

of the evidence of the circumstances of the homicidal act

and of Petitioner’s character in making their sentencing

decision. Therefore, Petitioner was treated as a “unique”

individual in accordance with the principles previously

announced by this Court. See Lockett v. Ohio, 438 U.S.

586 (1978); Eddings v. Oklahoma, No. 80-5727, slip op.,

(U.S. Sup. Ct. Jan. 19, 1982). Petitioner’s characteriza-

tion of his conduct and the Kerseys’ murders are merely

premises for a syllogism designed to remove this case

from the ambit of principles previously announced by this

8

Court. Petitioner had a guiding hand in the murder of

Thomas and Eunice Kersey. Accordingly, he bears moral

and legal responsibility for his criminal actions. His sen-

tence is neither disproportionate nor excessive; it accords

with societal standards of decency and serves acceptable

criminal punishment goals of society. Hence, the sentence

imposed upon Earl Enmund by the Florida jury and courts

must be affirmed.

A. Reading A Specific Intent Requirement Into The

Eighth Amendment Is Inconsistent With Prevoius

Decisions Of This Court.

The State of Florida’s felony murder-capital punish-

ment statutory scheme is constitutional as applied to Peti-

tioner, Earl Enmund. His argument—that a capital sen-

tence is always unconstitutionally disproportionate to a

felony murder conviction, absent a finding of active pre-

meditated specific intent to kill—is not supportable.

Rather, an examination of the pertinent decisions demon-

strates that the Florida sentencing procedure, which pro-

vided for particularized consideration of the circumstances

of the homicidal act and the character of the accused,

comported with all of the requirements for imposing a

valid capital sentence mandated by this Court.

This Court has recognized that it “has never articu-

lated a general constitutional doctrine of mens rea.”

Powell v. Texas, 392 U.S. 514, 535 (1968). Rather, it has

relied upon “[t]raditional common-law concepts of per-

sonal accountability . . .” on the grounds that “[wle

cannot, cast aside the centuries-long evolution of the col-

lection of interlocking and overlapping concepts which the

common law has utilized to assess the moral accountabil-

ity of an individual for his anti-social deeds.” [footnote

omitted] Jd. at 535-36.

In Lockett v. Ohio, supra, this Court considered the

validity of a capital sentence for an accomplice in an

armed robbery which resulted in a death. Without reach-

ing the question presently at bar, a plurality of this Court

held that:

9

[T]he Eighth and Fourteenth Amendments require

that the sentencer . . . not be precluded from con-

sidering, as a mitigating factor, any aspect of a

defendant’s character or record and any circum-

stances of the offense that the defendant proffers as

a basis for a sentence less than death.

438 U.S. at 604 (emphasis in original).

Since the Ohio statute under review permitted considera-

tion of only three mitigating circumstances, the statute

was unconstitutional. Significantly, the Ohio statute, un-

like the Florida statute here, did not permit considera-

tion of individualized circumstances such as the defend-

ant’s minor or major role in the offense or age. Id. at

606-608. Consideration of those and other mitigating

factors are mandated in Florida, see Fla. Stat. Ann.

§ 921.141(6) (a)-(g), and were in fact considered in the

instant case. Enmund v. Florida, supra, 399 So.2d at

1372-73.

The result is that Petitioner’s sentence is not flawed by

any of the “constitutional infirmities” found to exist in

the sentences in Lockett, 438 U.S. at 606-07, or in Eddings

v. Oklahoma, No. 80-5727, supra, slip op. at 8-10. The

Florida sentencing authority fully explored the record and

weighed any mitigating circumstances. That individual

members of this Court might disagree with the weight

given the evidence by the courts below does not justify

overturning a valid sentence. As Chief Justice Burger

recently stated:

[T]he Constitution does not authorize us to determine

whether sentences imposed by state courts are sen-

tences we consider “appropriate”; our only authority

is to decide whether they are constitutional under

the Eighth Amendment.

Eddings, supra, slip op. at 9 (Burger, C.J., dissenting).

See Hutto v. Davis, No. 81-23 (U.S. Sup. Ct. Jan. 11,

1982).

Justice White filed a separate opinion in Lockett in

which he urged “that it violates the Eighth Amendment

to impose the penalty of death without a finding that the

10

defendant possessed a purpose to cause the death of the

victim.” 438 U.S. at 624 (White, J., concurring in part,

concurring in judgment, dissenting in part). While the

opinion of the plurality in Lockett did not find it neces-

sary to reach that question, id. at 609 n.16, both Justice

Rehnquist and Justice Blackmun addressed the same issue

and rejected the proposition advanced by Justice White

and by Petitioner here.

Justice Rehnquist stated that:

I finally reject the proposition urged by my Brother

White in his separate opinion, which the plurality

finds it unnecessary to reach. That claim is that the

death penalty, as applied to one who participated in

this murder as Lockett did, is “disproportionate” and

therefore violative of the Eighth and Fourteenth

Amendments. I know of no principle embodied in

those Amendments, other than perhaps one’s personal

notion of what is a fitting punishment for a crime,

which would allow this Court to hold the death pen-

alty imposed upon her unconstitutional because under

the judge’s charge to the jury the latter were not re-

quired to find that she intended to cause the death

of her victim. As my Brother White needes, ap-

proximately half of the States “have not iegislatively

foreclosed the possibility of imposing the death pen-

alty upon those who do not intend to cause death.”

Ante, at 625, 57 L.Ed.2d, at 1002. Centuries of com-

mon law dectrine establishing the felony-murder doc-

trine, dealing with the relationship between aiders

and abettors and principals, would have to be re-

jected to adopt this view. Just as surely as many

thoughtful moralists and penologists would reject the

Biblical notion of “an eye for an eye, a tooth for a

tooth,” as a guide for minimum sentencing, there is

nothing in the prohibition against cruel and unusual

punishments contained in the Eighth Amendment

which sets that injunction as a limitation on the

maximum sentence which society may impose.

Id. at 635-36 (Rehnquist, J., dissenting).

Similarly, Justice Blackmun, concurring in part and in

the judgment, refused to embrace in Lockett the “bright

11

line” argument now urged by Petitioner. Rather, in terms

which are consistent with Powell, supra, and instructive

here, Justice Blackmun rejected the proposition that capi-

tal punishment may never be imposed for felony murder

after examining the jurisprudential and practical diffi-

culties of such a rule:

I do not find entirely convincing the disproportion-

ality rule embraced by my Brother White. The rule

that a defendant must have had actual intent to kill,

in order to be capitally sentenced, does not explain

why such intent is the sole criterion of culpability

for Eighth Amendment purposes. What if a defend-

ant personally commits the act proximately causing

death by pointing a loaded gun at the robbery vic-

tim, verbally threatens to use fatal force, admittedly

does not intend to cause a death, yet knowingly cre-

ates a high probability that the gun will discharge

accidentally? What if a robbery participant, in order

to avoid capture or even for wanton sport, personally

and deliberately uses grave physical force with con-

scious intent to inflict serious bodily harm, but not to

kill, and a death results? May we as judges say that

for Eighth Amendment purposes the absence of a

“conscious purpose of producing death” [citation

omitted] transforms the culpability of those defend-

ants’ actions?

Applying a requirement of actual intent to kill to

defendants not immediately involved in the physical

act causing death, moreover, would run aground on

intricate definitional problems attending a felony

murder. What intention may a State attribute to a

robbery participant who sits in the getaway car,

knows that a loaded gun will be brandished by his

companion in the robbery inside the store, is willing

to have the gun fired if necessary to make an escape

but not to accomplish the robbery, when the victim

is shot by the companion even though not necessary

for escape? What if the unarmed participant stands

immediately inside the store as a lookout, intends

that a loaded gun merely be brandished, but never

bothered to discuss with the triggerman what lim-

12

itations were appropriate for the firing of the gun?

What if the same lookout personally intended that

the gun never be fired, but, after his companion fires

a fatal shot to prevent the victim from sounding an

alarm, approves and takes off?

The requirement of the actual intent to kill in

order to inflict the death penalty would require this

Court to impose upon the States an elaborate “con-

stitutionalized” definition of the requisite mens rea,

involving myriad problems of line drawing that nor-

mally are left to jury discretion but that, in dis-

proportionality analysis, have to be decided as issues

of law, and interfering with the substantive cate-

gories of the States’ criminal law. And such a rule,

even if workable, is an incomplete method of ascer-

taining culpability for Eighth Amendment purposes,

which necessarily is a more subtle mixture of action,

inaction, and degrees of mens rea.

438 U.S. at 614-15 n.2 (Blackmun, J., concurring in part

and concurring in judgment) (emphasis added).

Justice Blackmun’s assessment of the difficulties of a

bright line rule requiring specific intent led him to the

conclusion, also reached implicitly by the plurality, that:

The more manageable alternative, in my view, is

to follow a proceduralist tack, and require, as Ohio

does not, in the case of a nontrigger man such as

Lockett, that the sentencing authority have discre-

tion to consider the degree of the defendant’s partici-

pation in the acts leading to the homicide and the

character of the defendant’s mens rea. That ap-

proach does not interfere with the State’s individual

statutory categories for assessing legal liability but

merely requires that the sentencing authority be per-

mitted to weigh any available evidence, adduced at

trial or at the sentencing hearing, concerning the de-

fendant’s degree of participation in the homicide and

the nature of his mens rea in regard to the commis-

sion of the homicidal act. A defendant would be per-

mitted to adduce evidence, if any be available, that

he had little or no reason to anticipate that a gun

would be fired, or that he played only a minor part

13

in the course of events leading to the use of fatal

force.

438 U.S. at 615-16 (emphasis added).

Thus, it is implicit in the various opinions in Lockett

that a capital sentence is constitutionally valid in felony

murder cases as long as any mitigating factors related to

the crime itself or the individual defendant may be ad-

mitted for consideration of the appropriate sentence. Such

a conclusion comports with this Court’s Eighth Amend-

ment jurisprudence which has consistently focused upon

individual culpability as demonstrated by the character-

istics of the particular offense and the particular offender.

See e.g., Woodson v. North Carolina, 428 U.S. 280 (1976) ;

Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977);

Coker v. Georgia, 433 U.S. 584 (1977).

Florida’s felony murder-capital punishment statutory

scheme fits within this constitutional framework. As

stated by the Lockett Court:

That states have authority to make aiders and abet-

tors equally responsible, as a matter of law, with

principals, or to enact felony murder statutes is be-

yond constitutional challenge.

438 U.S. at 602.

Moreover the constitutional validity of Florida’s proce-

dure for imposing capital punishment was approved in

Proffit v. Florida, 428 U.S. 424 (1976). In the context

of the case at bar, the procedure employed in sen-

tencing Petitioner passes constitutional muster since it

provides for particularized consideration of the homicidal

act and of Earl Enmund’s character. Both channels of

inquiry were explored below thereby assuring that Peti-

tioner’s sentence was not arbitrarily or harshly imposed.

Petitioner’s sentence is constitutionally valid notwith-

standing his attempt to read a specific intent require-

ment into the Eighth Amendment. Any other conclusion

intimates a rejection of the capital sentencing principles

previously laid down by this Court.

14

B. Accepting Petitioner's Characterization Of His

Conduct And The Kerseys’ Murders Requires The

Nullification Of Common Law Principles Of Crim-

inal Responsibility Developed Over Hundreds Of

Years.

Acceptance of Petitioner’s claims would not only require

another reinterpretation or rejection of the principles

previously announced by this Court in death penalty cases,

but the nullification of common law principles of criminal

responsibility developed over hundreds of years. Since

such a decision would place this Court in the position of

both a super-legislature and a super-jury as well as deny

the States the practical ability to decide criminal matters

of State concern, the public interest demands that Peti-

tioner’s attempts to avoid his sentence be rejected.

Petitioner’s characterization of the Kerseys’ murders

and his role in them has a surreal quality. Throughout

his brief, Petitioner repeatedly denies “individual and

personal culpability” for the deaths of the Kerseys which

are characterized as a mere “spontaneous” “fortuity”.

Brief of Pet. at 9, 14, 37.' Petitioner argues that “he

did not . . . intend to take life, or contemplate that it

would be taken by another.” Hence, his guilt is “techni-

cal” and he cannot be subject to a capital sentence.

The Washington Legal Foundation submits that Peti-

tioner’s contentions have no merit and only serve to high-

light the moral frame of reference he brings to this case.

To say that one may conspire with others to rob an elderly

couple, go about the commission of thai robbery armed

with deadly weapons, and yet escape liability for any

1 Note that Petitioner does reluctantly admit at one point in his

comparison of the enormity of his crime to that of Ehrlich Coker’s

that:

Coker and petitioner both committed serious felonies that do

not contemplate the taking of human life. Both thereby cre-

ated a risk ... that by setting in train a series of events, the

death of another person might result. Fortunately, in Coker’s

case the risk did not materialize. In petitioner’s case it did.

Brief of Pet. at 17 (emphasis added).

15

ensuing deaths is to view the victims as mere “objects to

be toyed with and discarded.” Coker v. Georgia, 433 U.S.

at 616 (Burger, C.J., dissenting).

Our system of justice has always been grounded in in-

dividual responsibility. Responsibility and moral culpa-

bility extend to situations in which an individual has

played an integral role in creating a situation in which

violence may occur, supplied the means for the violence

to occur, and then enjoyed the illegal fruits of the violence

once it has occurred. In brief, one is presumed to intend

the natural, reasonable, and probable consequences of his

voluntary acts including a criminal] enterprise in which

he is the guiding hand.

To claim, then, as Petitioner does, that such an indi-

vidual bears no moral culpability for the foreseeable re-

sult of his conduct turns our traditional concepts of crim-

inal responsibility on their head. Petitioner fails to dif-

ferentiate legal intent and legal causation from their

literal and physical meanings.

Even a superficial examination of his arguments dem-

onstrates that they are merely the necessary premises for

a syllogism designed to bring his case within the consti-

tutional ambit of Coker v. Georgia, supra. In essence,

Petitioner is stating: “Since I did not physically cause

death, I cannot be sentenced to death myself.” However,

Petitioner ignores the fundamental difference between his

case and Coker’s; death occurred here. That it does not

always occur when a risk is created is not constitutionally

significant in cases in which it does.

Enmund’s repeated reference to the murders of Thomas

and Eunice Kersey as a mere “fortuity” is a ghoulish

insult to their memory. The murders of Mr. and Mrs.

Kersey were no “fortuity”; they were the direct and fore-

seeable result of a plan to commit robbery with loaded

firearms. Petitioner decided to rob Mr. Kersey at the time

he purchased the calf from him. All he needed was help

in carrying out his plan. Earl Enmund wanted Tom

Kersey’s money and was prepared to get it at any cost.

16

Any cost, that is, short of bearing legal responsibility for

his illegal conduct.

The fact of the matter is that the Kerseys are dead.

The State of Florida may therefore sentence Petitioner to

death since it complied with the guidelines set forth by

this Court in its previous capital decisions. That the State

has discretion to include capital punishment as a potential

penalty for felony murder should be beyond question. If

the question is open at all, it is only open to the legisla-

tures of the various States as this Court has repeatedly

recognized. A bright line distinction to the contrary by

this Court will deny the States their rightful authority

and ability to protect their citizens.

C. Petitioner’s Sentence Accords With Societal Stand-

ards Of Decency.

Petitioner’s sentence accords with “the evolving stand-

ards of decency which mark the progress of a maturing

society.” Gregg v. Georgia, 428 U.S. 153, 190 (1976);

quoting Witherspoon v. Illinois, 391 U.S. 510 n.15 (1968),

and Trop v. Dulles, 356 U.S. 86, 101 (1958) ; Coker, supra,

433 U.S. at 603 (Powell, J., concurring). As an initial

matter, it must be noted that invocation of the phrase

“evolving standards of decency” does not automatically

imply a departure from utilizing capital punishment. An

examination of a number of relevant factors indicates that

societal standards comprehend the imposition of capital

punishment for felony murder. Capital punishment has

been traditionally available in all appropriate cases in-

cluding felony murder cases. Surprisingly, the authority

cited by Petitioner to support his case buttresses the con-

clusion that his sentence is constitutionally valid. Hence,

prohibiting capital punishment in all felony murder cases

does not accord with society’s evolving standards of de-

cency.

17

1. The phrase “evolving standards of decency”

does not automatically imply a departure from

imposing capital sentences.

It is important to state at the outset, however obvious

the proposition may seem, that invocation of the concept

of “evolving standards of decency” does not automatically

imply a departure from imposing capital sentences. De-

cency” is not synonomous with leniency and an increased

use of capital sentences is not synonomous with societal

deterioration. In fact, the Washington Legal Foundation

submits the opposite is true.

In his brief, Petitioner adopts a tone of moral superi-

ority that admits no doubt that the standards of our

mature society have evolved such that the only “decent”

course available is to prohibit capital sentences for crimi-

nals like Enmund. WLF is not surprised that Petitioner

strikes this false note of “victimization,” but this Court

should reject that notion. It has become increasingly

common in our society for criminals to reverse the roles

and claim themselves the “victim” and society the “crimi-

nal” responsible for their illegal acts. That Petitioner can

make such a claim at all with a reasonable hope that it

will be favorably received by this or any other court

demonstrates the extent to which the focus of the crimi-

nal justice system has been distorted. WLF submits that

while our society may not believe that all major felonies,

standing alone, justify a capital sentence, it is not true

that our society will become “more decent” if this Court

abolishes the potential for a death sentence in all cases in

which a felony results in death.

2. Objective indicia indicate that society accepts

capital punishment for felony murder in appro-

priate cases.

Objective indicia of societal standards do not reveal a

rejection of capital sentences for all cases of felony mur-

der. Rather, they indicate that a large segment of society

has concluded that capital punishment is necessary under

certain circumstances.

18

Amicus submits that contemporary attitudes toward

capital punishment clearly support the affirmance of Peti-

tioner’s sentence. Thirty-seven (37) State legislatures, the

bodies “constituted to respond to the will and consequently

the moral values of the people,” have enacted capital pun-

ishment statutes since this Court’s decision in Furman v.

Georgia, 408 U.S. 238, 383 (Burger, C.J., dissenting)

(1972). See National Law Journal, “Death Row Census

Growing as Legal Challenges Continue,” January 18, 1982

at 4, col. 2. While Petitioner contends that only eight

(8) jurisdictions join Florida in expressly permitting a

capital sentence in cases such as the instant one, Justices

White, Blackmun, and Rehnquist all noted in Lockett,

supra, that “approximately half of the States ‘have not

legislatively foreclosed the possibility of imposing the

death penalty upon one who did not intend to cause

death.’” 438 U.S. at 635. Yet, there are indications that

twenty-six (26) States by actual count allow a capital

sentence for an aider and abettor without proof of specific

intent to cause the murder. See Brief of Respondent at

——. Thus, contemporary legislative judgments do not

demonstrate the type of mass rejection of capital punish-

ment for felony murder which would justify this Court’s

interference.

Similarly, Petitioner’s reliance on a variety of statistics

relating to jury determinations is sorely misplaced. The

statistics submitted by Petitioner bring to mind a state-

ment attributed to Benjamin Disraeli: “There are three

kinds of lies in this world: lies, damned lies and statis-

ties.“

Like Justice Blackmun in Lockett, supra, Amicus

must question the data relied upon by my Brother

White [and offered again in the instant case, as it

was in Lockett, by Counsel for Petitioner, Pet. Brief

at 33-34] that only extremely rare[ly] has the death

penalty been used when a defendant did not spe-

cifically intend the death of the victim. The repre-

sentation made by petitioner Lockett, even if accept-

19

ed uncritically, was merely that of 363 reported cases

involving executions from 1954 to 1976, in 347 the

defendant “personally committed a homicidal as-

— that the defendant had actual intention

to kill.

438 U.S. at 615 n.2

Other statisties relied upon by Petitioner are also sus-

pect. His accounting of the statistics available for the

criminals on death row as of October 21, 1980 can be read

to support the arguments of Respondent as well. Brief of

Pet. at 35. For example, Petitioner states that “[o]f the

739 for whom sufficient data are available. . only 41

did not personally participate in the fatal assault upon

the victim.” Jd. In the first instance, the statistics seem

to represent a rejection of capital punishment for those

who do not actually pull the trigger. But yet they can

also be read to represent society’s willingness, when cir-

cumstances warrant, to impose capital punishment in a

substantial number of cases on criminals who did not

“pull the trigger,” but who are nonetheless responsible

for the deaths which result from their illegal acts.

WLF reads those statistics in the latter fashion and

finds support for its conclusion in public opinion surveys.

Public opinion polls not only demonstrate that a broad

segment of our society supports capital punishment for

murder, but for various other crimes as well. A 1966 poll

found that 42 percent of those polled favored capital pun-

ishment while 11 percent had no opinion and 47 percent

opposed it. A 1969 poll, however, indicated 51 percent in

favor, 9 percent with no opinion, and 40 percent opposed.

Erskine, The Polls: Capital Punishment, 34 Public Opin-

ion Quarterly 290 (1970). By 1973, 59 percent favored

the death penalty with 31 percent opposed, while by 1977,

67 percent were in favor and only 25 percent opposed.

U.S. DEPT. OF JUSTICE, BUREAU OF JUSTICE STATISTICS,

SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS at 199

(1980).

More importantly for present purposes, a 1981 survey

conducted by Time magazine indicates that 73 percent of

20

the American public “approve the wider use of the death

penalty for such crimes as hijacking or killing a police

officer.” Time, June 1, 1981 at 13, col. 3 (emphasis

added). It is particularly telling that approval was voiced

for employing capital punishment as a possible penalty

for hijacking, a crime which does not usually result in

any one’s death or injury. See also, Field Newspaper

Syndicate, “The Gallup Poll: Support for Death Penalty

Greatest In 28 Years,” (March 1, 1981).

WLF believes that the poll reflects society’s recognition

of the high degree of risk created by some crimes in

which death does not always result and the concomitant

need to have severe penalties available for them. Thus,

objective evidence demonstrates that our mature society

believes that capital punishment should at least be avail-

able as a sanction in felony murder cases.

3. Legal authority relied upon by Petitioner but-

resses the conclusion that his sentence is consti-

tutionally valid.

An objective examination of the legal authority relied

upon by Petitioner supports the conclusion that Earl En-

mund’s sentence is constitutionally valid. In arguing that

society rejects capital punishment for felony murder, Pe-

titioner relies in part on the American Law Institute’s

Model Penal Code (MPC) and a number of State cases.

However, Petitioner’s sentence weuld be affirmed under

the reasoning of the MPC or the State cases.

Petitioner’s brief is peppered with references to the

1980 Official Draft and Revised Comments of the MPC,

particularly the “murder” provision, § 210. His argu-

ments would lead this Court to believe that the drafters

of the Model Penal Code have rejected capital punishment

for felony murder. Such a belief would be mistaken.

In laboring to adapt the traditional common law doc-

trine of felony-murder to the realities of contemporary

American society, the drafters of the MPC attempted to

advance a “new approach” to the problem of homicide

21

occurring in the course of a felony. They formulated the

following language to prevent an accomplice to a crime of

the kind usually included in first degree felony-murder

from escaping a murder conviction:

(1) Except as provided in Section 210.3 (1) (b),

criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circum-

stances manifesting extreme indifference to the

value of human life. Such recklessness and in-

difference are presumed if the actor is engaged

or is an accomplice in the commission of, or an

attempt to commit, or flight after committing or

attempting to commit robbery, rape or deviate

sexual intercourse by force or threat of force,

arson, burglary, kidnapping or felonious escape.

(2) Murder is a felony of the first degree [but a

person convicted of murder may be sentenced to

death, as provided in Section 210.6].

ALI, MODEL PENAL Cope, § 210.2.

In the drafters’ own words:

Subsection (1) (b) creates a presumption of the re-

quired recklessness [which will constitute murder]

. . if a homicide occurs during the commission or

attempted commission of robbery, . ... The pre-

sumption also arises .. . if he is an accomplice to the

commission of one of the specified crimes when the

killing takes place.

ALI, MoDEL PENAL CODE, § 210.2, Comments, at 29-30

(1980) (emphasis added).

The effect of the MPC, therefore, is to abandon felony

murder as a separate basis for establishing liability for

homicide and to retain the presumption described above

as a means of facilitating proof.

The drafters conclude that under the felony murder

doctrine:

. it remains indefensible in principle to use the

sanctions that the law employs to deal with murder

unless there is at least a finding that the actor’s con-

22

duct manifested an extreme indifference to the value

of human life. [Nevertheless] [t]he fact that the

actor was engaged in a crime of the kind that is

included in the usual first-degree felony-murder

enumeration, will frequently justify such a finding.

The result may not differ often under such a formu-

lation from that which would be reached under some

form of the felony-murder rule.

ALI, MopEL PENAL CODE, § 210.2, Comments, at 38-39

(1980) (emphasis added).

Assuming, arguendo, that the MPC had been in place

in lieu of the Florida statutory scheme under which En-

mund was sentenced, there is no reason to believe that

Petitioner would not have been guilty of first degree mur-

der. On the contrary, given the jury’s findings as well

as those of the Florida Supreme Court that Petitioner’s

participation in the crime was “major,” the conclusion is

equally inescapable that the jury would also have found

that Enmund perceived and consciously disregarded the

risk of death of the Kerseys and was “reckless” within

the meaning of 210.2(1)(b). A finding of murder in the

first degree would therefore not be anomalous under the

MPC.

Similarly, Petitioner could be sentenced to death under

the MPC, § 210.2(2), as long as the requirements of

§ 210.6 of the MPC were satisfied. A comparison of § 210.6

with the procedures employed in the Florida court reveal

that they are nearly identical; a separate proceeding was

conducted and both mitigating and aggravating circum-

stances were examined.

The State court decisions cited by Petitioner also dem-

onstrate that his sentence should be affirmed. For exam-

ple, he relies upon three cases drawn from “jurisdic-

tions .. . with well-established pre-Furman traditions of

appellate review of capital sentences” for the proposition

that even these courts recognized that “death sentences

should be reduced in cases in which (i) there was not a

strong showing of premeditation, or (ii) the offender was

not the actual perpetrator of the homicide.” Brief of Pet.

23

at 24 n.37, citing, Staie v. Hall, 176 Neb. 295, 125 N.W.

2d 918 (1964) ; Wesley v. State, 112 Neb. 360, 199 N. W.

719 (1924) ; Fritz v. State, 8 Okla. Cir. 342, 128 Pac. 170

(1917). See also, cases cited in Brief of Pet. at 36-37

n.55. Even a cursory reading of these cases reveals that

they do not support the broad proposition advanced.

While space considerations prohibit a case-by-case ac-

counting of all these decisions, it is instructive to examine

a few. In State v. Hall, supra, the court reduced a capital

sentence based upon:

Consideration of all of the circumstances, that is, the

age of the defendant, that he is a feebleminded per-

son, a low-grade moron or a high-grade imbecile,

passive in nature, possessed of a disposition to follow

the lead of others, and who previously had no offense

charged against him

125 N.W.2d at 927.

Similarly, the court in Wesley v. State, supra, found that

the defendant was younger than his co-felons, had pre-

viously been a law-abiding citizen, and the robbery had

been the suggestion of another.

The instant case is entirely different. The idea to rob

the Kerseys was Earl Enmund’s. He was the prime mover

in the conspiracy that carried out that idea. At 44 years

of age, Petitioner was older than his co-felons. He had

a prior record of violent crime. A reasonable inference

may be drawn from the record that he supplied at least

one of the murder weapons and it was proven that he

ordered the disposal of the weapons to avoid detection.

In short, the Florida courts, like the courts in the cases

cited by Petitioner, considered a wide range of circum-

stances which are unique to Petitioner’s case and charac-

ter. Nonetheless, they concluded that in Petitioner’s case

a capital sentence was warranted. This Court can only

overturn that judgment by substituting its personal view

of the facts for the factual determination of the jury

and lower courts.

Finally, it is worth noting that in Fritz v. State, supra,

the court reduced the sentence to life at hard labor. The

24

court’s statement in reaching that decision is even more

noteworthy, however:

[We do not wish to be understood as being in favor

of abolishing capital punishment as a penalty for

murder. We think that capital punishment, at the

discretion of the jury, as the penalty of murder, is

essential, to the security of society, and we have no

sympathy with that sentimental humanitarianism

which in the exercise of a mawkish sympathy for a

heartless, unfeeling felonious assassin forgets and

wholly ignores the innocent murdered victim and the

necessary safeguards of society. If capital punish-

ment should be abolished without some limitation of

the pardoning power in convictions of murder and

manslaughter, and the indiscriminate exercise of the

pardoning power in this character of conviction

should continue, it cannot be doubted that convictions

of murder and manslaughter in this state would

then in many cases be but a mere mockery of law

and justice.

128 Pac. at 171.

Amen!

D. Deterrence And Retributive Justice Are Measurably

Served By The Imposition Of Capital Punishment

For Felony Murders.

Petitioner also argues that capital punishment does not

serve the well-recognized social goals of deterrence and

retribution. Brief of Pet. at 38-45. Amicus strongly re-

jects that argument and submits that deterrence and

retributive justice are advanced by the imposition of capi-

tal punishment on felony murderers.

1. Imposing capital punishment for felony murders

will have a deterrent effect on the commission

of both felonies and murder.

Amicus submits that the imposition of the death penalty

will actually have a deterrent effect on the commission of

future felonies and hence, felony murders, and thus re-

sult in a saving of innocent lives. Because of the break-

down of our current criminal] justice system, a reasonable

25

perception exists that the costs of engaging in criminal

conduct is low when compared to the benefits derived from

the criminal activity. When the benefits outweigh the

costs, or even appear to, one can fairly predict a rise in

criminal conduct. In short, crime does pay. See North &

Miller, THE ECONOMICS OF PUBLIC IssUES 163 (1980).

However, calculating criminals like Enmund would

think twice about aiding or abetting the commission of a

felony if this Court were to uphold the death penalty for

cases such as this. They would know that if one of their

group were to kill the victim in the commission of the

crime, all could suffer the dire consequences of their col-

lective action, even if a specific intent to kill were not

actually formulated. Consequently, there would be a

marked decrease in the commission of all underlying

felonies since a felony murder situation usually contem-

plates the participation of two or more persons for the

successful completion of the underlying felony (e.9., a

person to serve as a lookout, get-away driver, etc.). With-

out the necessary participants in the felony, the original

organizer is likely to abandon his plans.* Thus, not only

will the commission of all such felonies decrease, but also

2 Felony murder is also possible where a felon, acting alone,

accidentally kills someone during the course of the felony. Even if

he did not specifically intend to kill, capital punishment would no

doubt deter criminals from carrying lethal weapons during the

commission of a felony or from committing the felony at all.

If two or more persons are contemplated for the commission

of a felony, the organizer of a felony may try to convince his

co-conspirators to help him carry out his felonious plans by not

using lethal weapons, thereby offering his accomplice or accomplices

some assurance that a felony murder will not occur. In such a case,

society benefits because less victims will be killed. If the organizer

fails to convince his potential abettors to help him commit the

felony, and if he decides instead to “go it alone” or with a reduced

number of accomplices, the likelihood of detection and apprehension

by law inforcement authorities increases because of the missing

“lookout” accomplice or other person vital to the felonious plan.

Again, society benefits from the deterrent effect of the threat of

capital punishment.

26

there will be a net saving of innocent lives in those per-

centage of felonies where someone is killed.* For an ex-

cellent analysis of the deterrent effect of capital punish-

ment on murder and felony murder, see Isaac Ehrlich,

The Deterrent Effect of Capital Punishment: A Question

of Life and Death, 65 AMERICAN ECONOMIC REVIEW 397,

400 (1975).

Amicus also takes exception to Petitioner’s argument

that only a small percentage (approximately . ö percent)

of all felonies actually result in murder. Pet. Brief at

40-41, n.G0. Petitioner’s statistics are wocfully outdated

and undervalued by 3-5,000 percent. The percentage of

murders committed during the course of a felony for 1980

was 17.7 percent of the 21,860 total murders committed;

16.9 percent of 20,591 murders in 1979; 16.7 percent of

18,714 in 1978; 16.7 percent of 18,033 in 1977; and 17.7

percent of 16,605 in 1976. U.S. Dept. or JUSTICE, UNIFORM

CRIME REPORTS: CRIME IN THE UNITED STATES-.

1980 at 13 (1981). Ik you add to that percentage

‘the additional 6 or 7 percent of murders committed in the

course of a suspected felony, the result is that approxi-

mately 25 percent of all murders ure felony murders. Id.

Even if one were to use the conservative 17 percent

figure, we are still talking about over 3,000 felony mur-

ders annually. How many of those 3,000 lives would be

saved if capital punishment for felony murders was not

only authorized, but carried out, is hard to say. But the

Washington Legal Foundation believes that the deterrent

effect argument is a valid one and, indeed, a humanitarian

one because its purpose is to save lives. If capital punish-

ment has no deterrent effect, it would be interesting to

see what the felony murder rate would be if the punish-

ment were reduced to a fine or brief incarceration.

It must be remembered that these felony murder type situa-

tions are not sponteneous “crimes of passion” where one might

question the deterrent value of the death penalty.

27

2. Retributive justice is served by punishing peti-

tioner’s felony murder with death.

Petitioner Enmund’s participation in the brutal killing

and robbery of Mr. and Mrs. Kersey was major. Enmund

planned the crime, was aware that dangerous weapons

would be used in its commission, drove the get-away vehi-

cle immediately following the murders, and directed the

attempt to avoid detection by disposing of the murder

weapons. To argue, therefore, that the death sentence

imposed upon him by the Florida jury lacks any “retribu-

tive justification” wilfully misconceives both the nature

of retribution and Petitioner’s own high degree of moral

culpability in the murders.

Petitioner is correct when he cites several authorities

for the proposition that: “[t]he retributive theory pre-

supposes moral guilt”, and “rests on the idea that

because man is responsible for his acts, he ought to receive

his just deserts.” Brief of Pet. at 42. Rather than develop

these vague generalities, however, Petitioner is content

to leave the Court with an incomplete understanding of

what the purpose of retributive justice is in a case such

as the one at bar. Instead, he immediately shifts his

focus to a discussion of mens rea and tells us his precise

subjective state of mind at the time of the slayings. Re-

tribution, however, entails much more in addition to one’s

moral culpability or lack thereof.

The retributive theory of justice is unquestionably the

view most prevalently adhered to by the general public

and its representatives. “To say that support for this

view of punishment is widespread among leaders in the

judiciary and in government is almost an understate-

ment.” B. Cavanaugh, “The Justification for Punish-

ment,” 16 Alberta Law Review 43 (1978).

Retribution is properly described as punishment in its

purest form: “[t]he principal end of punishment in a

retributionary scheme is to annul wrong and thereby vin-

dicate right . . . The injury to be annulled by punish-

ment is not the determinate injury done to the victim but

28

the noumenal injury done to the moral order. Hence the

measure of punishment is properly derived not from the

qualitative or quantitative aspects of the crime (as in

revenge) but from its moral significance” with “the

severity of punishment . . . depend[ing] upon the per-

ceived magnitude of the threat that the crime poses to the

reality of human dignity.” A. Brudner, “Retributivism

and the Death Penalty,” 30 UNIV. Toronto L. J. 337, 350,

354 (1980). In the present instance, the wrong sought to

be annulled through the imposition of the death sentence

is obvious. Enmund is being punished for having planned

and participated in the robbery of vo elderly people

whom he had reason to believe might resist and as to

whose anticipated resistance he made allowance by having

his co-conspirators come armed with deadly weapons.

Let us be clear on this point: Enmund planned the

violent robbery of the Kerseys and thereby created the

situation which led to their deaths. To argue, therefore,

that Petitioner had no intent to kil] because he was the

driver of the get-away car flies in the face of the uncon-

troverted facts and is an insult to this Court. Determin-

ing the state of mind of any individual is always difficult.

To do so, one cannot rely merely upon a defendant’s after-

the-fact statements. The jury, of course, considers those

statements as they did in the instant case. More im-

portantly, however, the jury views the facts and what one

may be presumed to intend given the probable conse-

quence of one’s voluntary acts. In this case, the intent to

kill was found not merely through a “strict liability”

application of the Florida felony murder statute as Peti-

tioner would have this Court believe, but from the fact

that the killing was a natural and probable consequence

of the conspiratorial acts which Enmund initiated and

orchestrated.

Retribution is indeed that which is deserved. It led the

Florida jury to the inexorable conclusion that the funda-

mental respect for human dignity, the dignity of the Ker-

seys as well as Petitioner, must lead to the death of the

man who pulled the strings of the criminals who killed

them.

29

II. RECOGNITION OF THIS COURT’S PROPER ROLE

AND A RESPECT FOR THE VALUE OF HUMAN

LIFE DICTATE THAT PETITIONER’S SENTENCE

BE AFFIRMED.

Throughout its brief, amicus curiae Washington Legal

Foundation has addressed the subject of this Court’s

proper role in death penalty cases and the dignity of

human life. Nonetheless, the history of death penalty

jurisprudence, including very recent history, suggests

that further discussion is in order.

The Court’s acknowledgements that capital punishment

is constitutional and that its imposition is a factual mat-

ter properly left to legislatures and juries are too numer-

ous to require repetitive citation here. Mere repetition of

a principle cannot endow it with substance when its prac-

tical application is not forthcoming. While this Court

continues to voice a recognition of its proper role in capi-

tal cases in print, it continues to carve out exceptions to

imposing death sentences in practice.

Amicus suggests that in doing so, this Court is too

often merely substituting its judgment for that of a legis-

lature, a jury, or both. For example, the statement of

the majority in Eddings v. Oklahoma, supra, slip op. at

12, that “We do not weigh the evidence for [the state

courts]” is belied by the lengthy proceeding evaluation

of the evidence which leaves little doubt as to the manner

in which the Court expects the case to be decided on

remand. This Court should not follow a similar course

in the case at bar.

Even aside from the obvious impact that such judicial

action has on public confidence in this Court and the

criminal justice system, another more important effect

must be considered. The acceptance of heinous violent

crime by social authority anesthetizes all of society to its

brutality. As social authority becomes less willing to pass

any irrevocable judgment in cases in which the lives of

law-abiding citizens are taken, respect for the value of

human life itself is diminished. In essence, life becomes

30

less valuable as authority becomes less willing to severely

sanction criminal conduct.

This Court bears an obvious and heavy responsibility in

capital cases. Yet it is society that suffers the conse-

quences of the failure to meet that responsibility. The

Washington Legal Foundation submits that the respect

for human dignity so often referred to by this Court

should be extended to the victims of crime and the law-

abiding public.

CONCLUSION

For all of the reasons stated above, the Washington

Legal Foundation submits that Petitioner’s sentence is

constitutional and must be affirmed.

Respectfully submitted,

DANIEL J. POPEO

General Counsel

PAUL D. KAMENAR

Director of Litigation

NICHOLAS E. CALIO

Litigation Counsel

WASHINGTON LEGAL FOUNDATION *

1612 K Street, N.W.

Suite 502

Washington, D.C. 20006

(202) 857-0240

January 25, 1982

* Amicus wishes to express its appreciation to Michael P. Mc-

Donald, legal intern, for his valuable assistance in the preparation

of this brief.