§ 31.06 Murder: Felony-Murder Rule
[A] The Rule
"The classic formulation of the felony-murder doctrine declares that one is guilty of murder if a death results from conduct during the commission or attempted commission of any felony."106 This so-called "felony-murder rule" was abolished by statute in England in 1957.107 It never existed in France or Germany. The rule is richly criticized in this country.108 Nonetheless, the rule, at least in limited form, "still thrives"109 in the United States, and is retained in some manner in the great majority of states.
Most modern murder statutes provide that a death that results from the commission of a specifically listed felony (such as arson, rape, robbery, or burglary) constitutes first-degree murder for which the maximum penalty is death or life imprisonment. If a death results from the commission of an unspecified felony, it is typically second-degree murder.
The felony-murder rule facially applies whether a felon kills the victim intentionally, recklessly, negligently, or accidentally and unforeseeably. Thus, the felony-murder rule potentially authorizes strict liability for a death that results from commission of a felony, although the defendant must possess the mental state required for commission of the underlying ("predicate") felony.110 Although some courts have candidly suggested that the felony-murder rule dispenses with the requirement of malice,111 the more usual explanation is that the intent to commit the felony—itself frequently a dangerous, life-threatening act—constitutes the implied malice required for common law murder.
In light of the potential strict-liability nature of the rule, D1, a robber, is guilty of murder if V1 dies from fright caused by the robbery.112 Similarly, D2 is guilty of felony-murder if she accidentally shoots V2 in the chest during the commission of a felony, and V2 dies years later from a heart attack during a backyard basketball game, as the result of permanent damage to the heart produced by the original wound.113 And, since the rule in its classically stated form applies to a homicide that occurs during the commission of any felony, in the absence of any special limitation,114 D3 is guilty of murder if she attempts to steal V3's watch from V3's purse and a gun concealed in it discharges, killing V3. Furthermore, the felony-murder rule extends implicitly (and frequently expressly by statute) to accomplices in the commission of felonies. Therefore, if S were an accomplice in any of the hypothesized felonies listed above, she would also be guilty of murder, without regard to her own state of mind relating to the death.
[B] Rationale of the Rule
[1] Initial Observations
Consider these observations: (1) a "[p]rincipled argument in favor of the felony-murder doctrine is hard to find";115 (2) the "ancient rule . . . has been bombarded by intense criticism and constitutional attack";116 and (3) "[c]riticism of the rule constitutes a lexicon of everything that scholars and jurists can find wrong with a legal doctrine."117 What follows are the most common arguments in defense of the much-condemned rule.
[2] Deterrence
The most common defense of the felony-murder rule is that it is intended to deter negligent and accidental killings during the commission of felonies.118 As Holmes explained this theory, the law ought to throw on the felon the peril that if a death results, even an unforeseeable one, she will be punished as a murderer.119 This enhanced risk, the argument proceeds, will cause a felon to be more careful, i.e., she may commit the felony,120 but she will do so in a manner less likely to result in death.
Critics of the felony-murder rule reject the deterrence argument. They ask, "[q]uite simply, how does one deter an unintended act?"121 Of course, the act of committing the felony is intended, but the result of the death is unintended, and may even be unforeseeable to the most rational and far-sighted felon.
Advocates of the felony-murder rule cannot provide empirical evidence to support the deterrence thesis. Although there is little recent data on point, homicides during the commission of most felonies seemingly are rare. According to old data, for example, only one-half of one percent of all robberies resulted in a homicide.122 Even this figure presumably overstates the case because it does not differentiate between homicides intentionally or recklessly caused during the commission of robberies (cases in which murder convictions would be possible without the need for the felony-murder rule) and ones that accidentally or negligently occur. In short, it is hard to make the case for the need for the felony-murder rule on deterrence grounds.
[3] Reaffirming the Sanctity of Human Life
Two authors123 defend the felony-murder rule on the ground that it reaffirms the sanctity of human life. The rule reflects society's judgment that the commission of a felony resulting in death is more serious—and, therefore, deserves greater punishment—than the commission of a felony not resulting in death. If a criminal is required to "pay her debt" to society, the felony-murderer surely has a greater debt to pay than the felon who does not take a life.124
This argument arguably proves too much. Even if a felony that results in a death should be punished more severely than one that does not result in a homicide, it need not follow that a felon who accidentally takes a life should be subject to the severe penalties, including death or life imprisonment, reserved for intentional murderers. Moreover, in order to properly calculate a wrongdoer's debt to society, and thus to set an appropriate punishment for an offense, legislators must also consider the actor's culpability, and not simply the harm that she has caused.125 In the context of felony-murder, it must be kept in mind that the offense involves two different social harms: the harm from the felony and the harm from the homicide. The actor's culpability should be analyzed separately for each. The penalty for the felony serves to punish for the intentional social harm of that crime. The real issue, therefore, is whether it is fair to increase the felon's punishment for the social harm of a death that may have been caused unintentionally, non-recklessly, or even non-negligently.
Consider two pickpockets, P1 and P2. P1 puts her hand in V1's pocket and finds a wallet containing $200. P2 puts her hand in V2's pocket and discovers a wallet with the same amount of money, but V2 dies of shock from the experience. The property harm caused is the same—the loss of $200. And the culpability of P1 and P2 as to the thefts is identical. Therefore, as to the larcenies, they should be punished alike.
As for the social harm of the death, P2 is no more culpable than P1 if the death was unforeseeable. It is true, of course, that P2 caused a death, but in terms of mens rea, her culpability (as that of P1) is that of an intentional thief, and no more. Even if it were concluded that P2 should pay some debt for the unforeseeable death, it surely violates ordinary concepts of just deserts, and proportional punishment, to treat the unlucky pickpocket as deserving of punishment sometimes equal to that of an intentional killer.126
[4] Transferred Intent
The felony-murder rule is sometimes defended on the basis of the transferred-intent doctrine. The argument is that the felon's intent to commit a felony is transferred to the homicide.127 Thus, the offense is not one of strict liability but one of intent.
This is a misuse of the transferred intent doctrine. That doctrine provides that an actor's intention to commit a particular social harm (call it Social Harm X) relating to a particular victim (call her Victim A) may be transferred to a different, unintended victim (Victim B) of the same social harm (Social Harm X).128 Ordinarily, however, the law does not recognize a transference of intent to cause one social harm (Social Harm X) to a different and greater harm (Social Harm Y), involving the same victim. Thus, when D intends to steal rum on a boat (Social Harm X), and in the process accidentally sets fire to the boat (Social Harm Y), she is not guilty of intentionally burning the boat.129 Yet, this is precisely what occurs with felony-murder: The felon's intent to commit a felony (Social Harm X) is transferred to the different, and more serious, social harm of a homicide (Social Harm Y).
[5] Easing the Prosecutor's Burden of Proof
Many felony-murder convictions do not involve non-culpable homicides. For example, a robber may intentionally shoot the victim or a police officer during commission of the crime. In such a case, one may infer that the felon intended to kill or, at least, seriously injure the victim. Thus, malice aforethought can be proven independently of the felony. The felony-murder rule is unnecessary in these circumstances. Even when a felon does not intend to kill or seriously injure another person, her felonious conduct will often manifest a depraved heart, i.e., extreme recklessness. For example, an arsonist may burn down a house knowing that the building is probably occupied, or a rapist may beat the victim in order to overcome her resistance.
However, even in felony cases involving one of these alternative forms of malice, prosecutors often charge the defendant on the basis of felony-murder. The effect of the doctrine, if not its explicit rationale, is to ease the prosecutor's burden of proof regarding malice aforethought, by dispensing with the requirement that she prove beyond a reasonable doubt that the felon intended to kill or injure the victim grievously, or that the felon was aware that her conduct was highly dangerous to human life.130 All that the prosecutor must do with felony-murder is prove that the defendant committed the felony and that the death occurred during its commission.
[C] Limits on the Rule
Many courts, critical of the felony-murder rule, have engrafted one or more...
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