Origins and Purpose

Origins and Purpose

The previous section showed what the felony-murder rule does: the intent to commit a felony stands in for the malice the prosecution would otherwise have to prove.¹ A substitution of that kind needs a justification. Murder ordinarily punishes a defendant for an attitude toward the victim's life, such as an intent to kill or a conscious disregard for the risk of death. A felon who kills by accident has neither attitude, so the rule locates the felon's culpability somewhere else, and the reason given for that location decides how far the rule should reach. If the reason holds for some killings and fails for others, the rule ought to stop where the reason stops. Courts have in fact drawn limits around the rule, and the explanations they give for those limits are the same explanations they give for the rule itself.

Two accounts of that reason matter, and they look in opposite directions. The older account looks backward at the felon's character: a person who kills while committing a felony was treated as having revealed a malicious disposition, so the felonious purpose was taken as a sign of malice toward the person killed. The modern account looks forward at the rule's effect on future conduct: holding felons strictly responsible for the deaths they cause is meant to give them a reason to avoid killing negligently or accidentally. The first account says the felon already deserves the label of murderer. The second treats the label as a tool for shaping behavior. That difference matters because only the second supplies a way to predict where the rule ends. A rule justified by deterrence cannot easily support punishment for a killing that the threat of murder liability could never have discouraged, and it adds little for a felony that carries no special danger to life.

The next two sections therefore take the history first and the purpose second. The historical account explains why the substitution exists at all, and the deterrence account then supplies the standard the later sections use to judge which felonies, which killers, and which deaths the rule should cover.

Common-Law Origins

The oldest explanation for the felony-murder rule is an inference about the felon's character. Murder requires malice, and a felon who kills by accident has formed no intent to kill, so the traditional account supplied the missing mental state by reasoning from the felony itself. In People v. Burroughs, a concurring opinion quotes the early formulation: a thief who kills a man he meant only to rob commits murder in the judgment of law, which implies “a former malicious disposition in him rather to kill the man than not to have his money from him.”² The reasoning treats the thief as having decided in advance that the money matters more than the victim's life if the two collide. On that view the fatal act only reveals a malice that already existed, and the law merely recognizes it. Critics were never persuaded. The same opinion records the objection that this was an attempt to justify the rule as an inference of fact so that it would fit the definition of malice then in use, and that the inference carries little conviction when a thief who trips a man in order to rob him happens to kill him.³

A second explanation looks at the way felonies were punished rather than at the felon's mind. At common law an attempt to commit a felony was only a misdemeanor, while the completed felony was a capital crime. A robber whose plan misfired and who killed in the struggle would therefore have faced far less than a robber who succeeded, and the felony-murder rule closed that gap by placing the defendant in the position he would have occupied had the felony succeeded, which in either case was a capital one.⁴ A third explanation adds the felon's presumed willingness to kill. Because a felony could be resisted to the point of killing the felon, the law presumed that a felon intended to kill if that was necessary to protect his own life.⁵

The rule drew little protest in its early centuries because the circumstances of the time hid its weakness. In the Minnesota Supreme Court's account, few felonies existed at common law, all of them were wrong in themselves and most endangered life, and all were punishable by death, so it made little difference whether the felon was hanged for the felony or for the murder.⁶ Justice Brennan's dissent in Tison v. Arizona calls the doctrine a “living fossil” from a legal era in which all felonies were capital, when the felon's state of mind about the death was superfluous.⁷ That background explains why the substitution of felony intent for malice felt harmless then, and it also shows what changed. As the number of felonies grew and many comparatively minor offenses were classified as felonies, malice came to be imputed from crimes far less serious than murder.⁸

The old authorities also mark where the rule stops. The passage from Bracton that is sometimes cited for it suggests only that a killing resulting from an unlawful act is itself unlawful, and its example of throwing a stone toward a commonly used walkway resembles what would today be a reckless state of mind that independently establishes actual malice.⁹ A death from such a stone is murder, if at all, because of the thrower's recklessness, and the felony-murder substitution plays no part. One account quoted in the same opinion even traces the rule's genesis to a blunder in translating that passage.¹⁰

The premise that a felon who kills reveals a malicious disposition is therefore a legal fiction, a conclusion the law adopts about every felon rather than a finding about the particular defendant. The California Supreme Court in People v. Phillips called the doctrine a “highly artificial concept” that deserves no extension beyond its required application, and observed that England, where it began, had abandoned it.¹¹ The rule was a fixture of English common law until 1957, when Parliament declared that an unintended killing during a felony would be manslaughter.¹² Courts that keep the rule have responded to its fictional footing by confining it, and the limits taught in the sections that follow, on which felonies qualify and which killings count, are that response.¹³

Deterrence Rationale

The older inference that a felon who kills reveals a malicious disposition has largely given way to a justification that looks forward instead of back. In People v. Washington, the California Supreme Court stated the purpose of the felony-murder rule as deterring felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit.¹⁵ Strict responsibility here means that the felon cannot defend a death by showing it was unintended, because the intent to commit the felony supplies the implied malice that an accident would otherwise lack.¹⁶ The target is therefore the careless or accidental killing, the very kind that ordinary murder doctrine leaves outside its reach for want of an intent to kill or a conscious disregard for life. The theory is that a felon who knows in advance that any death he causes will be treated as murder has a reason to take care that he would otherwise lack, and that reason attaches to choices within his own control: whether to carry a weapon, whether it is loaded, and how much force to use.

The same purpose explains why courts accept a rule that dispenses with any inquiry into the individual killer's state of mind. In People v. Burton, the California Supreme Court reasoned that the Legislature had judged the deterrent purpose to outweigh the usual policy of examining each person's mental state to decide whether a killing was malicious or accidental.¹⁷ On that reasoning, a person who embarks on a listed felony such as robbery is within a clear legislative warning that any resulting death will be first-degree murder, and the warning is how deterrence reaches the felon. A threat can change conduct only if the person it addresses knows of it beforehand and can act to avoid the outcome it describes. The felon who decides how to carry a weapon into a store is exactly such a person.

In State v. Martin the New Jersey Supreme Court reproduced a passage that states the underlying logic in general terms: when deaths that look accidental occur disproportionately often alongside certain felonies, a lawmaker may treat those felonies as carrying a special danger and may place on the felon the risk of consequences the felon did not foresee.¹⁸ The same opinion concedes the cost, since holding an actor liable for a death regardless of mental state cuts across the ordinary rule that criminal liability follows what was intended, contemplated, or foreseeable, a tension that returns in the closing sections of this chapter.¹⁹ Martin also records a broader account of the rule's historical justification, as a general deterrent against violent felonies, on the theory that would-be felons who foresee murder liability for any death will be less likely to commit the felony at all.²⁰ That broader aim is the one Washington declined to adopt.

Washington itself marks where the rationale stops. The killing there was committed by the victim of the robbery, to thwart it, and the court held that malice aforethought is not attributable to the robber in that situation, because the killing was not committed by the robber or an accomplice in perpetrating the robbery.²¹ It was argued that the rule also serves to prevent robberies in general, but the court found no support for that purpose in the common-law rationale or in the Penal Code.²² In every robbery there is some possibility that the victim will resist and kill, and the robber has little control over that once the robbery is underway. An added penalty for such a killing would separate one robber from another by how others happened to respond, with no difference in the robbers' own conduct, so it would deter robbery only haphazardly, much as punishing thieves picked by lot would.²³ Students often reach for foreseeability here, but the court held that it is not enough that a killing was a reasonably foreseeable risk and that the robbery might therefore be regarded as a proximate cause of it when the victim, not the felon or an accomplice, did the killing.²⁴

Burton and Washington therefore apply one purpose in opposite directions. In Burton the purpose supported a first-degree felony-murder instruction for a death directly resulting from the defendant's own armed robbery, a death the felon had been warned about and could have guarded against.²⁵ In Washington the same purpose defeated liability, because the victim's act intervened between the robbery and the death and the felon could not control it.²⁶

The purpose also supplies the measuring stick for the limits taught in the sections that follow. People v. Gilbert repeated Washington's reasoning to hold that malice cannot be imputed under the felony-murder rule unless a felon commits the killing, while recognizing that malice may be established apart from the rule when a defendant initiates a gun battle.²⁷ California courts also describe the doctrine as a highly artificial concept that should receive the narrowest application consistent with its purpose of deterring negligent or accidental killing.²⁸ A dissent in People v. Howard, which would have applied the rule more broadly than the majority, starts from the same purpose and adds that a felony's inherent danger to life is what makes it logical to impute malice to everyone who commits it.²⁹ Those threads point to the questions the next sections take up: which felonies are dangerous enough that deterrence and implied malice make sense together, and who must do the killing.