Dressler, Joshua 4/6/2016 For Educational Use Only THE JURISPRUDENCE OF DEATH BY ANOTHER:..., 51 U. Colo. L. Rev. 17 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 51 U. Colo. L. Rev. 17 University of Colorado Law Review Fall, 1979 Article THE JURISPRUDENCE OF DEATH BY ANOTHER: ACCESSORIES AND CAPITAL PUNISHMENT Joshua Dressler a1 Copyright © 1979 by the University of Colorado Law Review, Inc.; Joshua Dressler The United States Supreme Court has wrestled in recent years with various aspects of the constitutionality of the death penalty. 1 Two particularly vital and interrelated questions remain unanswered: 2 whether the death penalty may constitutionally be inflicted upon those who unintentionally kill another; and whether it may be inflicted upon those who assist in, but do not perpetrate murders. This article will attempt to answer the latter question; 3 the Supreme Court will doubtlessly have to do so in the near future. The question of non-perpetrator liability will be the most difficult death penalty issue to confront the United States Supreme Court. In resolving this question the justices will not only need to apply various commonly used Court-approved tools for death penalty analysis, but will have to tackle difficult, theoretically undeveloped, and sophisticated substantive criminal law concepts. The predominant focus of this article is on these criminal law concepts. The author will develop a jurisprudential construct by which the accessory-death penalty question can be analyzed, and will place the non-perpetrator case within that construct. The author will also look at more traditional tools for resolution of the issue, and pay particular attention to a statistical analysis of the frequency of past accessorial executions. The author will demonstrate that it is unconstitutional to apply the death penalty in most, 4 though not all, cases where the defendant has been convicted of accessory murder. Regardless of eventual high-court resolution, however, the author believes it essential that most legislatures seriously rework their capital murder laws in the accessory *18 field, to ensure fairness to all persons accused of murder. Reform of these laws may also serve to clarify the particularly confused field of accessory law. 5 The author will indicate how such law should be rewritten. THE DOCTRINE OF PROPORTIONALITY The common law of crimes demands that punishment be proportional to the crime committed. This common law doctrine has been held constitutionally mandated by the eighth amendment proscription against cruel and unusual punishment. 6 Significantly, then, any legislation which violates this basic concept will be held prohibited by the eighth amendment. Origin of Proportionality Doctrine at Common Law For centuries philosophers have debated whether a human possesses volitional control over the functions of his mind and body, 7 or whether human conduct is determined by factors beyond the influence of the actor. 8 Although the philosophers have not