Intentional Killing Without Intending to Kill: Knobe's Theory as a Rational Limit on Felony Murder

Author:Joseph C. Mauro
Position:Associate, Arent Fox LLP
Pages:1011-1047
SUMMARY

Felony murder authorizes maximum criminal punishment, the kind typically reserved for the most ruthless and calculating killers, for defendants who did not even intend to kill. Many retributivist scholars therefore criticize felony murder for abandoning the traditional notion that intent determines culpability and the appropriate degree of punishment. Despite widespread agreement with this... (see full summary)

 
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Intentional Killing Without Intending to Kill: Knobe’s
Theory as a Rational Limit on Felony Murder
Joseph C. Mauro*
ABSTRACT
Felony murder authorizes maximum criminal punishment, the
kind typically reserved for the most ruthless and calculating killers,
for defendants who did not even intend to kill. Many retributivist
scholars therefore criticize felony murder for abandoning the
traditional notion that intent determines culpability and the
appropriate degree of punishment. Despite widespread agreement
with this criticism, however, felony murder persists in most
jurisdictions.
Joshua Knobe’s empirical research turns this problem on its
head by suggesting that intent is not just a mental state. Numerous
experiments have shown, in fact, that people are more likely to call
an action intentional, regardless of what the actor is thinking, when
it involves morally bad conduct and outcomes. Knobe thus argues
that intent refers not only to a mental state but also to the morality
(good or bad) of conduct and the outcomes it causes.
Under Knobe’s theory, some instances of felony murder are
actually intentional, even if the defendant did not subjectively intend
to kill or recklessly endanger. That is, when the defendant’s conduct
(a dangerous felony), mental state (willingness to risk death) and the
outcome (death) are sufficiently bad, the action, as a whole, is
intentional. Restricting felony murder to such “intentional” killings,
I propose, would not only re-couple punishment to intent, satisfying
retributive theory, but also eliminate the most troublesome
applications of the rule.
Copyright 2013, by JOSEPH C. MAURO.
* Associate, Arent Fox LLP. I owe many thanks to Thomas A. Green,
Lawrence Ngo, Walter Sinnott-Armstrong, Samuel R. Gross, and Phoebe C.
Ellsworth for their invaluable guidance and comment s. I would also like to thank
the Louisiana Law Review staff for its hard work editing this article. Finall y and as
always, I am exceed ingly grateful to my family and friend s for their constant love
and support.
1012 LOUISIANA LAW REVIEW [Vol. 73
TABLE OF CONTENTS
Abstract ........................................................................... 1011
I. Introduction ..................................................................... 1012
II. The Retributivist Criticism: Felony Murder Ignores
Gradations of Culpability ............................................... 1015
III. Argument: Felony Murder Can Be Limited to Intentional
Killings and Thus Justified Under Retributive
Theory ............................................................................. 1018
A. Knobe’s Theory: Intent Describes Morality ............ 1019
B. Retributive Theory: Intent Justifies
Murder-Level Punishment ........................................ 1025
C. Restricting Felony Murder to Intentional
Killings ...................................................................... 1029
IV. Counterarguments ........................................................... 1034
A. Felony Murder Is Especially Corrupt and Unfai r .... 1034
B. Knobe’s Theory Does Not Apply to Unforeseen
Outcomes .................................................................. 1036
C. The Knobe Effect R epresents a Mistaken
Perception ................................................................. 1039
1. Hindsight Bias .................................................... 1040
2. Motivational Bias ............................................... 1042
3. Outcome Bias ..................................................... 1044
V. Conclusion ....................................................................... 1047
I. INTRODUCTION
Consider this scenario. The CEO of a major corporation has
developed a new business plan. Her only goal is to make money,
and the plan is going to make lots of it. Before the plan is
implemented, one of her advisors comes to her looking distressed.
“Your plan is going to destroy 200,000 acres of rainforest,” says the
advisor.
2013] INTENTIONAL KILLING 1013
“I’ve never cared about the environment,” says the CEO. “I only
care about money. Now go ahead with the plan.”
The CEO of a second corporation has developed a new plan as
well. Like the first CEO, her only goal is to make money, and her
plan is going to make lots of it. Before the plan is implemented, one
of her advisors comes to her looking excited. “Not only is your plan
going to make lots of money,” he says, “it’s also going to save
200,000 acres of rainforest that otherwise would have been
destroyed.”
“I’ve never cared about the environment,” says the CEO. “I only
care about money. Now go ahead with the plan.”
Did the CEOs intentionally affect the environment? In a sense,
neither of them did. They only cared about money and had no
feelings about the environment. On the other hand, both CEOs
intentionally affected the environment. They knew that their actions
would affect the environment and decided to act. Yet whether they
intentionally affected the environment or not, the answer must be the
same for each CEO, right?
Surprisingly, most people give a different answer for each CEO.
When asked about these scenarios, 87% of people said the first CEO
intentionally harmed the environment, while only 20% said the
second CEO intentionally helped the environment.1 Numerous
studies have obtained similar results, and one trend among the
studies is that when people perceive an action to be morally bad,
they are more likely to call it intentional. This phenomenon, broadly
speaking, is called the Knobe Effect.2
According to some experts, this research suggests that intent
refers not only to a person’s mental state but also to the morality of
her conduct and the outcomes it causes.3 Under this theory, when
conduct, outcomes, and the person’s mental state are sufficiently
bad, the action is intentional.4 Some experts disagree, maintaining
1. Joshua Knobe & Arudra Burra, The Folk Concepts of Intention and
Intentional Action: A Cross-Cultural Study, 6 J. COGNITION & CULTURE 113, 117–
18 (2006).
2. Some researchers define the Knobe Effect more narrowly, applying it
only to Joshua Knobe’s 2003 study. Research involving the phenomenon has
expanded since 2003, however, and this Article uses the term Knobe Effect to refer
to the broader phenomenon that the morality of an action affects people’s
perceptions of whether it was intentional. See infra Part II.A.
3. Knobe & Burra, supra note 1, at 123–25. The same is true of words such
as intention, intentionally, and intend.
4. Id. See also Thomas Nadelhoffer, Skill, Luck, Control, and Intentional
Action, 18 PHIL. PSYCHOL. 341, 351 (2005) (“[B]y surveying the folk, I hoped to
find out which conceptual analyses of intentional actio n actually settle with their
intuitions, so that philosophers will no longer be able to align their analyses with
common sense unless their views empirically merit such support. Of course, that

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