Reconsidering the felony murder rule in light of modern criticisms: doesn't the conclusion depend upon the particular rule at issue?

• Author: Crump, David

1. FOR AND AGAINST THE FELONY MURDER RULE: THE WELL-WORN ARGUMENTS A. Traditional Arguments in Opposition B. Traditional Arguments Supporting the Rule II. WHAT KIND OF FELONY MURDER STATUTE? GOOD ONES AND BAD ONES A. "Good" Felony Murder Definition (Although "Good" Is Always in the Eye of the Beholder) B. "Bad" Felony Murder Definition (Although "Bad" Is in the Eye of the Beholder, Too) III. EVALUATING THE NEWER ARGUMENTS AGAINST THE FELONY MURDER RULE A. Restatements of Traditional Arguments B. Newer Arguments Against the Rule CONCLUSION The felony murder doctrine has long been a target for detractors. (1) In some instances, the criticisms have had merit, or at least they have had merit when aimed at certain ill-considered formulations of the rule. (2) In other cases, however, the critics have articulated poorly reasoned arguments. Surprisingly, this group includes the drafters of the Model Penal Code (MPC) (3) and the Michigan Supreme Court, (4) which saw no arguments whatsoever for the rule. There was a time when virtually no commentator could find anything to say in favor of retaining the rule, even though it had proven extraordinarily durable over time and almost every state had chosen to retain it. (5) That history ought to have prompted scholars to consider whether there might be valid reasons for the near-universal retention of the felony murder doctrine, but for most of the rule's existence, few scholars did so.

   In 1985, my co-author and I attempted to do what had been neglected up until that time: describe the policies that are arguably served by the felony murder rule. (6) The resulting article, In Defense of the Felony Murder Rule, appeared in the Harvard Journal of Law and Public Policy, has been cited by a wide variety of courts, and appears in almost every criminal law casebook. (7) Our conclusion was that the question whether to retain the felony murder rule could be argued either way, but that the decision should not be made with a blind eye toward the reasons for retaining the rule. Since that time, the debate has changed. Opponents of the rule still exist, and they should. But with relatively few exceptions, academics no longer argue that the felony murder rule is without any support. (8)

   The debate continues, of course. It largely--although not entirely--consists of arguments that detract from the felony murder rule. But there are two remaining questions. First, what arguments, if any, can furnish answers to the newer criticisms of the rule? As was the case years ago, many of the criticisms are subject to answers or counter-criticisms, but the answers have not been uniformly developed. Second, given that most jurisdictions still retain the felony murder doctrine in some form, how should a statute expressing the rule be designed? As is the case with any other legal principle, there are both good and bad versions of the felony murder doctrine.

   This Article is an attempted reply to the rule's opponents, including the newest critics. It also contains an appraisal of different types of felony murder laws. Part I briefly summarizes the older rationales for and against the felony murder doctrine, including the arguments contained in the earlier article referred to above. Part II describes various forms that the felony murder rule takes in different states and under a variety of statutes today. Some of the versions are sound; others are not. Part III considers some of the most salient new criticisms of the rule. This discussion illustrates that the relative merit of the criticisms depends heavily upon which version of the rule is at issue.

   The Conclusion recognizes that retaining the felony murder rule is a policy decision that can be argued either way, but contends that the decision should not be made with a one-sided bias. In addition, the Conclusion includes the observation that when evaluating the criticisms, a great deal depends upon which version of the felony murder doctrine the critics choose to denounce. The better versions are responsive to, and can withstand, the critics' assaults, whereas the less acceptable formulations give ammunition to the rule's opponents.

1. FOR AND AGAINST THE FELONY MURDER RULE: THE WELL-WORN ARGUMENTS

   1. Traditional Arguments in Opposition

      The classic arguments against the felony murder rule have been asserted for many years, and they are partially collected in commentary to the MPC. (9) The most frequent assertion seems to be that the doctrine divorces criminal liability from blameworthiness. (10) If this criticism were found to have merit, it would represent a serious concern, because relationship to blameworthiness is an important criterion in shaping the criminal law. (11) A second point in opposition is the assertion that the rule serves no positive purposes. (12) For reasons described below, this argument is dubious. (13) Third is the argument that the felony murder rule is encumbered with so many limitations that its own exceptions undermine it. (14) This is probably the weakest of the traditional arguments, (15) although at least one court has accepted it. (16) Each of these contentions warrants discussion. Examination will show that, although the critics generally do not specify which version of the rule they are attacking, each argument depends on precisely which kind of felony murder doctrine is under discussion.

      The chief complaint of the MPC drafters appears to be that the felony murder doctrine results in convictions unrelated to individual blameworthiness. (17) Unfortunately, the commentary to this part of the MPC is not well developed. The underpinnings of the argument seem to include an assumption that the rule inevitably will be written to avoid any connection to individual blameworthiness, which is not true. (18) The argument also seems to assume that felony murders are not, as a class, more blameworthy than felonies that do not result in death. This assumption is debatable, (19) and it further presupposes that differences in moral blameworthiness cannot be addressed appropriately in sentencing laws. (20) Ultimately, the drafters seem to be saying that mens rea is the only legitimate determinant of blameworthiness, (21) that the traditional determinants of mens rea for murder are the only way to describe the appropriate mental states for murder, (22) and that the felony murder rule cannot be crafted to create an equivalent requirement of moral blameworthiness. (23) Again, the argument rests upon debatable propositions.

      The classic arguments also assert that the felony murder rule cannot advance other goals of the criminal law, including those founded on utilitarian concepts such as deterrence. (24) This criticism sometimes asserts that the felony murder rule cannot deter accidental killings that occur during felonies because felons will not know the law and cannot conform their conduct to the goal of minimizing accidental killings. (25) The argument is dubious because the same reasoning could be applied to many rules aimed at avoiding accidents, including those penalizing negligence or creating strict liability. No one advocates rescission of those laws because actors may not know the law. Finally, some critics argue that the exceptions or limits to the felony murder rule somehow undermine the rule in its entirety. (26) This position seems to be grounded in an assumption that no rule should have exceptions, and that the existence of any such limits shows the rule itself to be illegitimate, even if the limits produce results consistent with the policy of the rule by avoiding its application when the rule could not carry out its purposes. (27) These arguments, too, are subject to criticism.

      It should be immediately added, however, that these arguments might have more currency for certain formulations of the felony murder rule than for others. The California jurisprudence on felony murder, for example, is poorly designed. (28) The California version of felony murder produces arbitrary distinctions that excuse from murder some individuals with greater moral blameworthiness than other individuals found liable for murder. (29) This is not the same thing, however, as detaching felony murder from considerations of moral blameworthiness, because the California decisions resulting in murder convictions do reflect moral blameworthiness; the problem is that California uses odd distinctions to exonerate others who also are blameworthy. (30) This is the perennial condition of the criminal law, which is written to minimize errors of conviction and which therefore creates anomalies of exoneration. But there is no doubt that the California rule is badly designed, and that the moral blameworthiness rationale has something to do with the reasons why. In any event, California's approach is not the only way to formulate the felony murder rule. There are other types of felony murder statutes that do not reflect the disadvantages of California's law, as Part II of this Article will show.

   2. Traditional Arguments Supporting the Rule

      Are there any defensible rationales for the felony murder rule? Yes, there are, and developing these arguments was one purpose of my earlier article. (31) As the present Article will ex plain, the rule's most important purpose is enhancing the connection between moral blameworthiness and the imposition of criminal liability. Also, the idea that deterrence is impossible may be overstated; it seems probable that at least some meaningful deterrence may result from the felony murder rule. In addition, the rule may serve some subordinate purposes that might not suffice alone to support it: decreasing the utility of perjury, (32) preserving fine calibration of adjudication for cases in which it is most appropriate, (33) condemning the taking of human life, (34) and providing clear, unambiguous definitions of crimes. (35) Finally, the exceptions to the rule arguably do not undermine it; every rule requires limits, and the...