The origins of American felony murder rules.

AuthorBinder, Guyora

INTRODUCTION: THE MYTH OF THE COMMON LAW FELONY MURDER RULE I. THE COMMON LAW OF HOMICIDE IN THE COURSE OF CRIME A. Homicide in the Course of Crime in Early English Law B. Distinguishing Murder and Manslaughter in Sixteenth-Century England. C. Rejecting an Unlawful Act Murder Rule in Seventeenth-Century England D. Proposing a Felony Murder Rule in Eighteenth-Century England II. THE BELATED EMERGENCE OF FELONY MURDER LIABILITY IN ENGLAND III. SOURCES OF AMERICAN HOMICIDE LAW A. Homicide in the Course Crime in Colonial America B. Common Law and Statute in the New Republic C. Legislative Reform of Homicide Law IV. JURISDICTIONS WITHOUT FELONY MURDER LEGISLATION A. American Views on Felony Murder as Common Law B. Jurisdictions Leaving Murder Undefined V. FELONY AGGRAVATOR STATUTES A. Felony Murder in Pennsylvania B. The Pennsylvania Model in Other States C. The Pennsylvania Model Modified: Felony Aggravator Statutes with Culpability D. Summary VI. FELONY MURDER STATUTES A. Implied Malice Felony Murder Statutes 1. The Illinois model: "Abandoned and malignant heart" 2. The California model: Implied malice with enumerated felonies 3. The Texas "transferred intent" statute B. Felony Murder Statutes Without Malice C. Third Degree Felony Murder Statutes D. Dangerous Felonies Statutes E. Summary VII. THE ORIGINAL LIMITS OF AMERICAN FELONY MURDER RULES A. Predicate Felonies B. Means of Killing C. Accomplice Liability CONCLUSION: THE CHANGING FUNCTIONS OF FELONY MURDER RULES INTRODUCTION: THE MYTH OF THE COMMON LAW FELONY MURDER RULE

Felony murder liability is one of the most persistently and widely criticized features of American criminal law. (1) Much of the criticism is directed at a sweeping doctrine holding felons strictly liable for any death resulting from any felony. (2) Many commentators and courts assert or assume that this harsh doctrine long prevailed as the common law rule in England, was received into American law upon independence, and remains the law except where modified by enlightened legislation or judicial decision. William Clark and William Marshall summed up this prevailing view on the origin of American felony murder rules in their early twentieth-century treatise on crimes:

At common law, malice was implied as a matter of law in every case of homicide while engaged in the commission of some other felony, and such a killing was murder whether death was intended or not.... On this principle, it was murder at common law to unintentionally kill another in committing, or attempting to commit, burglary, arson, rape, robbery, or larceny. The doctrine has repeatedly been recognized and applied in this country, and is to be regarded as still in force, except where it has been expressly abrogated by statute. The decisions at common law do not require that the act done shall have been of such a nature as to endanger life, or threaten great bodily harm.... If it had been otherwise, the doctrine would have been altogether unnecessary, because the killing would be murder because of the tendency of the act, without regard to its being done in the commission of a felony. (3) Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. According to Wayne LaFave's treatise,

At one time the English common law felony-murder rule was that one who, in the commission or attempted commission of a felony, caused another's death, was guilty of murder, without regard to the dangerous nature of the felony involved or to the likelihood that death might result from the defendant's manner of committing or attempting the felony. (4) Similarly, the American Law Institute's Model Penal Code Commentaries refer to "the common-law felony-murder doctrine" (5) and explain that the "classic formulation of the felony-murder doctrine declares that one is guilty of murder if death results from conduct during the commission or attempted commission of any felony.... As thus conceived, the rule operated to impose liability for murder based on ... strict liability." (6) According to Joshua Dressler's textbook, "At common law, a person is guilty of murder if she kills another person during the commission or attempted commission of any felony. This is the so-called 'felony murder rule.' ... The felony-murder rule applies whether a felon kills the victim intentionally, recklessly, negligently, or accidentally and unforeseeably." (7) Arnold Loewy's Criminal Law in a Nutshell informs students that "[a]t early common law, felony murder was a simple proposition: any death resulting from a felony is murder. Thus a totally unforeseeable death resulting from an apparently non-dangerous felony would be murder." (8)

All of these texts imply that this harsh common law rule was incorporated into American law at independence, where it persists to this day, except where mitigated by judicial or legislative reforms. Similar accounts of the development of American felony murder rules appear in other treatises and texts, (9) in court opinions, (10) in scholarly articles, (11) and in law review comments. (12) Based on such accounts, critics attack modern rules as "anachronistic" legacies of a morally regressive age. (13)

Yet none of these accounts manages to identify when this supposed common law rule of strict liability for all deaths resulting from felonies became the law in England. None identifies a single case in which it was applied in England before American independence. LaFave, for example, explains that as felonies proliferated, the English felony murder rule became broader in scope and harsher in effect, until it was finally thought necessary to restrict it. (14) Yet he does not identify any examples of harsh applications of the rule. Indeed, he does not demonstrate that the rule was ever applied before it was thus "restricted." These accounts are equally hazy about early American law. None of them documents application of such a rule in colonial America, or in the early American republic. None of them troubles to show that such a rule ever led to the conviction of felons who had caused death truly accidentally, that is, without culpability.

In short, there is something suspicious about our received account of the origins of American felony murder rules. (15) This Article vindicates such suspicion and exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules in order to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law.

Americans did not receive any felony murder rules from England, for the simple reason that there was no common law felony murder rule at the time of the American Revolution. English law traditionally imposed murder liability for most deaths caused by the intentional infliction of injury. Such killings were murders whether or not they occurred in the context of a felony, while a felony could not transform an accidental death into a murder. While a broad felony murder rule was proposed in some eighteenth-century, English treatises, and discussed favorably in some eighteenth-century English cases, it was not applied. Such a rule might have made sense in a legal system that defined a limited number of felonies, considered all these felonies dangerous and punishable with death, and contained no significant liability for attempts. In such a context, a broad felony murder rule could provide an alternative way of seriously punishing failed attempts to commit capital crimes that caused unintended but substantial harm. (16) Yet only the last of these three conditions, the unavailability of serious attempt liability, held in the eighteenth century. Felonies were proliferating, and while they were all potentially punishable by death, most were not actually punished capitally. Perhaps for this reason, no English court ever applied the broad felony murder rule proposed in the eighteenth century. That rule was anachronistic before anyone even proposed it.

Prior to the American Revolution, English courts had gone no further than to impose murder liability on persons who (1) mistakenly killed one person in an attempt to kill or wound another: (2) killed while defending themselves against resistance to a crime: or (3) agreed with others to kill or wound for a criminal purpose, one of whom then killed for that purpose. The distinction between felonies and other offenses was of no particular significance in these cases. In the last decades of the eighteenth century, a few English courts extended accomplice liability for murders committed in the course of crime to those who had agreed only to the crime and not to the fatal wounding. But others disagreed, and this did not become the general rule.

By the time English courts did apply a felony murder rule, in the last half of the nineteenth century, attempts were punishable, felonies were numerous, and only a very few felonies were capitally punishable. Accordingly, the felony murder rule that actually became law in England was much narrower than the one proposed a century and a half before. It did not apply to all felons, and it did not hold felons strictly liable for purely accidental deaths. Instead, English law conditioned felony murder liability on causing death through an act of violence or an act manifestly dangerous to human life, in the perpetration or attempt of a felony. This felony murder rule added little to the traditional rules transferring an intent to kill or wound to unintended victims, barring justification and mitigation for killing persons resisting crime, and attributing a killing to accomplices sharing in a conditional...

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