On Tuesday, Alabama Gov. Kay Ivey commuted the death sentence of 75-year-old Charles Lee Burton to life in prison without the possibility of parole, just two days before the date he was scheduled to be executed by nitrogen gas.
Even in the death penalty hotbed of Alabama, the plan to execute Burton provoked outrage. But until Tuesday, Alabama seemed determined to get its pound of flesh from Burton, who not only didn’t murder anyone but is old, infirm, and poses no danger to anyone. He has a severe case of rheumatoid arthritis and uses a wheelchair. A column by a former federal public defender in the state notes that Burton “has to wear a protective helmet issued by Alabama’s Department of Corrections due to frequent falls.”
Burton would have been the eighth person in the U.S. put to death via nitrogen gas, six of whom have died in Alabama.
During a 1991 store robbery that Burton participated in, a 34-year-old customer named Doug Battle was killed. As the Alabama Reflector says of Burton, “He did not pull the trigger that killed Doug Battle during a 1991 robbery at a Talladega AutoZone, and was not in the store when Battle was shot.” However, Burton had a gun and pointed it at the cashier, asking him about the safe where the cash was kept. But he was not on the scene when one of his accomplices shot and killed Battle, who unwittingly walked into the store during the robbery.
The person who did the killing, Derrick DeBruce, was sentenced to death but had that sentence overturned on appeal. He died in prison while serving a life sentence.
Burton was not as lucky. He was convicted of a capital crime under the so-called felony murder rule. The rule holds all participants in a dangerous felony liable for first-degree murder when a death occurs during the course of that crime, even if a participant had no intent to kill.
Burton would have been the eighth person in the U.S. put to death via nitrogen gas, six of whom have died in Alabama.
Death penalty supporters argue that the penalty is just and effective and not just simple vengeance. They argue that it is an appropriate punishment for the worst of the worst and makes us safer than we would otherwise be.
But putting Burton to death wouldn’t have made us safer and wouldn’t have punished the worst of the worst. It would have been bloodlust, pure and simple.
And because it would have served no other purpose, it would have been cruel. As former Supreme Court Justice Byron White noted more than 50 years ago, the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”
“Pointless” and “needless” aptly describe Alabama’s earlier plan to execute Burton.
Some scholars trace the origin of the felony murder rule to English common law. In England, felons were held to account for any death that resulted from felonious activity.
Before the American Revolution, the version of the felony murder rule adopted in the colonies almost always, as law professor Guyora Binder writes, “conditioned murder liability on causing death with fault.” But over time, the requirement that someone be at fault for the murder came to mean that if anyone committing a felony was at fault for the killing, then everyone was treated as if they were at fault.
While Binder notes that England abolished its felony murder rule in 1957, it “remains alive and well in the United States — an outlier among common law countries — with some version of the law in place in more than 40 states.”
In 14 of those states, as The Appeal explained in 2021, a person can be convicted of first-degree murder for any death “set in motion by the commission of a murder felony.” In those states, “if … a store owner pulls out a gun and the owner … accidentally shoots and kills a customer (during a robbery), all participants in the underlying felony can be charged with murder.”
About 14% of people on death row in the U.S. are 65 or older. And in some circumstances, participants in the underlying felony can be executed for a killing that they did not commit. Doesn’t seem like the kind of justice that any American, regardless of their views about capital punishment, should endorse. In addition, across the nation, according to the Duke Center for Firearms Law, “Black people are both arrested and sentenced for felony murder at exponentially higher rates than are whites.” In Alabama, according to the Felony Murder Reporting Project, “you are 13.0775 times more likely to be charged with felony murder if you are Black than if you are white.” Burton is a Black man. He is also old and sick. But that doesn’t necessarily make him unique. About 14% of people on death row in the U.S. are 65 or older. The Death Penalty Information Center notes that on April 19, 2018, Alabama “executed 83-year-old Walter Moody, the oldest person and only octogenarian put to death in the United States since executions resumed in 1977.” Alabama will no longer go through with Burton’s execution, avoiding an undignified example of what professor Elizabeth Rapaport describes as “the elderly being carried or wheeled to the execution chamber after decades of growing old in death row confinement in the name of American justice.” We have been spared this state-sponsored spectacle of cruelty, and more importantly, Burton has been spared his life. But the question of whether this country should ever execute someone convicted under the felony murder rule or put to death the elderly and infirm remains an open one. It is time to answer no, so that no one else will ever again be in Burton’s position.
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
