Unusual: The death penalty for inadvertent killing

Can a burglar who frightens the occupant ofa house, causing afatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority ofAmerican jurisdictions that permit capital punishment forfelony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the actual killer. In this Article, we urge the recognition of a new Eighth Amendment norm against executing even actual killers who lack a culpable mental state of at least recklessness, with respect to the victim's death. Using the methods employed by the Supreme Court for determining "evolving standards of decency, " we survey the pertinent homicide and sentencing laws of the fifty-three criminal law jurisdictions in the United States. Second, we evaluate the facts of the cases that resulted in the nearly five hundred executions that have taken place since 1973, when the post-Furman statutes became operative, and 2016, in those jurisdictions permitting execution for inadvertent killing. We did the samefor thefacts ofthe 1755 cases of all death row inmates convicted in those jurisdictions and alive at the time of the study (2016). This analysis shows that capital punishment for inadvertent killing has become "truly unusual, " and therefore, unconstitutional.