NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.7  Requisite Mental State at Time of Offense for Imposition of Judgment of Death
               1.7.1  Retroactivity Of Enmund

In Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court held that the Eighth Amendment forbids the execution of “one who neither took life, attempted to take life, nor intended to take life.” Specifically, a person who aids and abets a felony in the course of which a murder is committed by another cannot be executed absent a finding that he or she killed, attempted to kill, or intended or contemplated that life would be taken or that lethal force would be employed. In Tison v. Arizona, 481 U.S. 137 (1987), the Supreme Court held that a capital sentence does not violate the Eighth Amendment where a defendant both possesses a mental state of “reckless indifference to the value of human life” and is a major participant in the felony that resulted in murder.

In Cabana v. Bullock, 474 U.S. 376 (1986), the Court resolved a split of authority between the Fifth and Eleventh Circuits and held that a determination of Enmund culpability need not be made by a jury or even by the trial court. Under Cabana, Enmund is satisfied if the factual culpability determination is made at any time in the state proceedings by the jury, the trial judge, or the appellate court. This state court finding is entitled to a presumption of correctness in federal court, pursuant to 28 USC 2254(e)(1) (2000).

In Hopkins v. Reeves, 524 U.S. 88 (1998), the Supreme Court refused to extend the Enmund holding to require that a second degree murder instruction that includes a mens rea element be given to juries in capital felony murder cases. The Court held that the Enmund rationale applies only when determining the propriety of a capital sentence, not when deciding whether a defendant is guilty of a particular charge.

Hopkins v. Reeves, 524 U.S. 88 (1998) (holding that the Enmund rationale applies only when determining the propriety of a capital sentence, not when deciding whether a defendant is guilty of a particular charge).

Tison v. Arizona, 481 U.S. 137 (1987) (holding death penalty not cruel and unusual punishment for major participant in felony that resulted in murder and who had mental state of reckless indifference to human life).

Cabana v. Bullock, 474 U.S. 376 (1986) (holding states may make Enmund determination of culpable intent at any point in state trial or appellate proceedings; where state court failed to make any Enmund finding, federal court should require state’s own judicial system to make intent findings in first instance).

Enmund v. Florida, 458 U.S. 782 (1982) (holding death penalty unconstitutional for one who aids and abets a felony involving a murder but did not himself kill, attempt to kill, intend to kill or to use lethal force; objective societal evidence, disproportionality, and lack of deterrent or retributive effect indicates death penalty is excessive punishment for “nontriggerman” who lacks intent).

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) (holding, even where trial court never specifically found Enmund intent, death penalty permissible because jury instructed on both premeditation and felony murder, and sufficient evidence of petitioner’s intent to participate in murder was presented), rev’d on other grounds, 506 U.S. 40 (1992).

Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991) (holding state findings that petitioner was active participant and knowingly created a grave risk of death is sufficient to satisfy Enmund requisite culpability), cert. denied, 506 U.S. 888 (1992).

McKenzie v. Risley, 801 F.2d 1519, 1530-31 (9th Cir. 1986) (holding, pursuant to Cabana, trial judge’s factual findings of intent sufficient to satisfy Enmund culpability, even if jury made no specific finding of intent), vacated on other grounds, 842 F.2d 1525 (9th Cir.) (en banc), cert. denied, 488 U.S. 901 (1988).

State v. Roberts, 142 Wash. 2d 471, 17 P.3d 713 (2001) (affording condemned defendant great right under Washington Constitution than federal constitution and holding that major participation in the act giving rise to a homicide is required to convict capital defendant under an accomplice theory).

Roy Conn III, Note, Constitutional Law–Imposition of the Death Penalty is Violative of the Eighth and Fourteenth Amendments Where One Neither Took Life, Attempted to Take Life, nor Intended to Take Life: Enmund v. Florida, 26 How. L.J. 1679 (1983) (reviewing Supreme Court cases before Enmund, analyzing and supporting Enmund conclusion).

Andrew H. Friedman, Note, Tison v. Arizona: The Death Penalty and the Non-Triggerman: The Scales of Justice are Broken, 75 Cornell L. Rev. 123 (1989) (analyzing Tison, arguing that it reverses Enmund’s requirement of intent to kill, arguing Court fails to provide clear guidance, and proposes absolute prohibition of death penalty for all “nontriggermen”).

Margaret C. Jenkins, Comment, Intent After Enmund v. Florida: Not Just Another Aggravating Circumstance, 65 B.U. L. Rev. 809 (1985) (analyzing implications of Enmund on state capital sentencing schemes, reviewing existing constitutional constraints on state sentencing proceedings, and explaining additional constraints necessitated by constitutional status of Enmund intent determination).

Nancy A. McKerrow, Note, Mens Rea as an Element Necessary for Capital Punishment, 48 Mo. L. Rev. 1063 (1983) (reviewing Enmund in light of recent pre-Enmund cases and role of mens rea).

Deborah Sachs, Note, Cabana v. Bullock: The Proper Tribunal–The Supreme Court Revisits Enmund v. Florida, 40 U. Miami L. Rev. 1023 (1986) (analyzing Cabana, reviewing felony-murder rule, and focusing on differing interpretations of Enmund resolved in Cabana).

Douglas W. Schwartz, Note, Imposing the Death Sentence for Felony Murder on a Non-Trigger Man, 37 Stan. L. Rev. 857 (1985) (reviewing Enmund, criticizing Court’s language and reasoning, and proposing mens rea standard to relieve confusion caused by Enmund in lower courts).

John L. Wickert, Note, Eighth Amendment–The Death Penalty and Vicarious Felony Murder: Nontriggerman May Not Be Executed Absent a Finding of an Intent to Kill, 73 J. Crim. L. & Criminology 1553 (1982) (summarizing and analyzing Enmund in light of Supreme Court cases recent to Enmund, showing that Enmund involves divergent approaches of Court on death penalty constitutional issues and that Enmund represents attempt by Court to provide clear, definitive sentencing guidelines).

Lynn D. Wittenbrink, Note, Overstepping Precedent? Tison v. Arizona Imposes the Death Penalty on Felony Murder Accomplices, 66 N.C. L. Rev. 817 (1988) (reviewing death penalty history in Supreme Court, focusing on death penalty of felony murder defendants, suggesting Tison inconsistent with Enmund, and arguing Tison “reckless indifference” standard too arbitrary).

The Supreme Court has not ruled on the retroactive application of Enmund. Prior to Teague v. Lane, 489 U.S. 288 (1989), the Fifth Circuit, in Jones v. Thigpen, 741 F.2d 805 (5th Cir. 1984), held that Enmund does apply retroactively. The Ninth Circuit, however, has addressed the issue in light of Teague with language to the contrary. In Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991), the Ninth Circuit acknowledged the Fifth Circuit’s position but indicated that the intent culpability requirement of Enmund may constitute a new rule under Teague because it could not have been reasonably anticipated before it was announced. The court did not conclusively decide the issue, however, because it found that Enmund did not affect the outcome of that case.

Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991) (discussing whether Enmund should be applied retroactively, despite Jones, because, consistent with intent of Teague, Enmund holding could not have been reasonably anticipated before announced, but ultimately not deciding the question since Enmund did not apply to petitioner’s claims), cert. denied, 506 U.S. 888 (1992).

Jones v. Thigpen, 741 F.2d 805 (5th Cir. 1984) (holding, prior to Teague, that Enmund applies retroactively), vacated on other grounds, 475 U.S. 1003 (1986).