Courts

It Looks Like Sotomayor Is 1 Of 3 Supreme Court Justices Who Actually Believes The Whole 'Do The Crime, Do The Time' Thing

Person A: What are you in for? Person B: A cop shot my best friend and I got blamed for it.

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On the death row

(image via Getty)

American law is rife with heuristics that act as touchstones for how we think about accountability and guilt. Take “avoiding even the appearance of impropriety,” for example. It is a classic — judges shouldn’t even be caught doing a thing that looks like it could put them in a compromising position. It hasn’t appeared to stick very well at the Supreme Court, what with one of the judges being so improprietous over the last 20 years that his mom got a new landlord out of it. There are other aphorisms too. “Do the crime, do the time,” for example. That doesn’t fare much better at the Supreme Court either — again, I don’t know what counts as less than a slap on the wrist, but that’s been Justice Thomas’s consequence for not abiding with federal reporting laws for the last 20 years or so. But not all of the Supreme Court justices take these time-tested sayings for granted. One of them is Sonia Sotomayor. From Law & Crime:

Justice Sonia Sotomayor lamented the U.S. Supreme Court majority’s refusal to correct an “egregious error” that now means a murder defendant will be executed “despite a very robust possibility” that he did not actually shoot the victims as the jury believed he had.

Sotomayor penned a lengthy dissent, joined by Justices Elena Kagan and Kentanji [sic] Brown Jackson, to the Court’s denial of certiorari in the appeal of Kevin Burns, a man who was sentenced to death after being convicted of murder in the 1992 shooting deaths of Damon Dawson and Tracy Johnson.
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As Sotomayor put it in her dissent: “No definitive narrative emerged regarding who had shot the victims.”…Burns’s murder conviction was based on the felony murder rule, which allows prosecutors to charge defendants with murder even when a defendant did not directly cause a victim’s death. In this case, because Burns was found to have participated in the robbery, the jury never had to decide who actually killed the victims. The felony murder rule has come under increasing fire in progressive criminal justice reform circles in recent years, particularly in the context of capital convictions.

Damn right the felony murder rule “has come under increasing fire” in recent years — it makes no damned sense. In practice, it looks like if some drunk madlibber switched out mens rea for major abuses of the transitive property. You wanna know how ridiculous it is? The Onion effect kicks in — it is really hard to tell if someone is making a detailed joke about a felony murder case, or is actually reporting a time somebody got convicted on it. Look for yourself:

Haha, that’s funny, right? It is too ridiculous to actually be a thing. Like, gut check-ly so. Do the crime, do the time. The person that was charged for the death of someone in this hypothetical didn’t actually kill or shoot someone — hell, they could have been unarmed for all we know. There is no way that a civilized country would sentence that person to death as if they shot the gun themselves when the facts show that they did not.

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That’s got to be a one-off right? Think about it, there’s no way prosecutors make a habit of blaming other people for when cops cause a death.

That’s one of the problems about felony murder. Sotomayor could be completely right that “no definitive narrative emerged regarding who had shot the victims” such that there was no ground to think that Burns was any more responsible than the other five men with him, or rather, had an iota of responsibility with regard to the shootings. Burns raised the issue that his lawyer failed to introduce mitigating evidence showing that he did not shoot anyone. The majority didn’t care because, even if it were 100% provable that Burns didn’t do the shooting (see the cops committing the murder example above), he could have still been on the hook for the crime by transitive property.

Although Burns would still have been guilty of the underlying felony murder, the fact that he did not personally pull the trigger “was plainly relevant to the jury’s determination whether to sentence him to death,” according to the dissenting justices.

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In case you were curious, the doctrine is applied disproportionately. Even when the crimes are similar, White defendants are less likely to be charged with felony murder and accomplice liability than Black and Latino defendants. If you want to learn more about this god awful bit of criminal law, here is a good place to start. Canada found the doctrine unconstitutional in 1990, deciding that it “breached the principles of fundamental justice.” In the meantime, I look forward to the day that American criminal jurisprudence looks a bit to the North.

Sotomayor Slams SCOTUS Majority’s ‘Indefensible’ Move To Uphold Death Sentence, Chastising Justices For A Decision That ‘Will Be The Last’ For Condemned Man [Law & Crime]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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