Criticism and Reform

Criticism and Reform

The limits taught in the preceding sections all respond to one discomfort: the felony-murder rule makes an accidental death murder by treating the intent to commit a felony as the malice that murder requires.¹ Because the prosecution proves only the felony and a killing connected to it, the defendant's state of mind toward the death is never examined. Defenders and critics describe that mechanism in the same way and disagree about whether it can be justified. The disagreement matters here because each criticism has a matching limit, so a reader who knows the reason behind a limit can see how far it should reach on unfamiliar facts. What follows sets out the defense of the rule, the main lines of attack, and the reforms those attacks produced.

The defense of the rule rests on deterrence and on ease of proof. On the deterrence account, holding felons strictly responsible for every killing they commit during the crime gives them a reason to guard against negligent or accidental deaths, since a felon who knows that any death will be charged as murder has an incentive to leave the loaded weapon at home or to use less force.² A broader version holds that the prospect of murder liability discourages violent felonies in the first place.³ The policy argument behind both is that a legislature may conclude that deaths that look accidental occur disproportionately often alongside certain felonies, and may therefore put the actor at risk for deaths the actor did not foresee.⁴ The rule also removes a practical burden, because the prosecution need not prove what the defendant was thinking about the victim's life when the death occurred. Each of these advantages carries a weakness, and the weaknesses are what drive the limits.

Deterrence is the first weak point, because strict responsibility can influence only conduct the felon controls, and a felon controls very little of what a victim does in response. In People v. Washington the court observed that every robbery carries some chance that the victim will resist and kill, that the robber has little power over that response, and that punishing the robber for it would distinguish robbers solely by how others happened to react to them. Deterrence of that kind works haphazardly, much like trying to prevent theft by hanging one thief in a thousand chosen by lot.⁵ That reasoning produced the agency limit, and State v. Canola reached the same result for a tavern robbery in which the bartender's shot killed one of the robbers.⁶ The objection reaches minor felonies as well. If a statute makes it a felony to sell liquor, the seller would be a murderer when a purchaser fell asleep on the way home and died of exposure, and a taxpayer who filed a false return would be a murderer when the revenue agent slipped on the front steps; no incentive to take care could have prevented either death.⁷

The second criticism goes to the mechanism itself. The rule is usually explained as imputing malice from the felony, yet malice describes a state of mind toward a killing, and the rule makes the defendant's state of mind about the death irrelevant. A concurring opinion in People v. Aaron called the imputation a useless fiction, reasoning that courts keep it alive out of loyalty to the axiom that murder requires malice and satisfy the axiom by enlarging the definition of malice to include an intent to commit a dangerous felony, which is circular.⁸ The Massachusetts court in Commonwealth v. Matchett framed the objection as a principle: criminal liability for causing a result is not justified without some culpable mental state toward that result, and applying the rule to every felony erodes the link between liability and moral culpability.⁹ The same opinion showed where the fiction is most strained. The theory is credible only when the felony itself displays conscious disregard for human life, so a felony with no natural tendency to cause death cannot supply the missing state of mind.¹⁰ That is the reason for the inherently-dangerous-felony limit. A related objection is that the rule ties murder liability to luck: when an accidental shooting occurs during a felony, the defendant is guilty of felony murder if the victim dies and of the felony alone if the victim survives, so liability follows the victim's survival rather than anything the defendant did.¹¹

The history gives critics a third argument. When the rule took shape there were few felonies, all of them serious and most of them dangerous to life, and all were punishable by death, so it made little difference whether the felon was hanged for the felony or for the death. As legislatures created many comparatively minor felonies, malice came to be imputed from crimes far less severe than murder.¹² A concurring opinion in People v. Burroughs collects doubts about the rule's lineage, including the view that it began with a mistranslation of an early authority that said only that a killing resulting from an unlawful act is itself unlawful, not that it is murder, and the view that its main early work was to make a death in a failed attempt capital, since an attempt was only a misdemeanor.¹³ England, where the rule began, gave it up: Parliament reclassified an unintended killing during a felony as manslaughter in 1957.¹⁴ The California court in People v. Phillips pointed to that abandonment, together with sweeping criticism, in calling the rule an artificial concept that deserves no extension beyond its required application.¹⁵ The dissent in Tison v. Arizona drew the same lesson for capital cases, describing the doctrine as a survivor from an era when every felony was punishable by death and the felon's state of mind toward a killing was superfluous.¹⁶

Courts that keep the rule have mostly narrowed it. The restrictions American courts have used include requiring that the felony be dangerous to life, that the death be a natural and probable and proximate result, that the felony be independent of the homicide, and that the period of commission be read narrowly.¹⁷ California's court states its aim as the narrowest application consistent with the purpose of deterring negligent or accidental killing, which explains its merger doctrine for assaultive felonies.¹⁸ Michigan's court in People v. Aaron went furthest and abolished the common-law rule, reasoning that it is unnecessary when malice can be proved by other evidence and unjust when malice cannot be proved, because it then violates the premise of individual moral culpability.¹⁹ An opinion in Commonwealth v. Brown pressed the point against vicarious liability, concluding that murder liability should rest on proof that the defendant acted with malice or shared the intent of a joint venturer who did.²⁰

Legislative and code reforms keep the felony relevant while changing what it proves. The Model Penal Code replaces the automatic rule with a rebuttable presumption of recklessness manifesting extreme indifference to the value of human life when the actor is engaged in robbery, forcible rape, arson, burglary, kidnapping, or felonious escape, and its drafters would have preferred abolition but thought that course impolitic.²¹ That approach is taught in a separate reading. Ordinary implied-malice murder offers another route, since a felon who acts with conscious disregard for life can be convicted of murder without any resort to the felony-murder rule.²² Most states have not adopted the Model Penal Code's position, but their many judicial limits mean that a felony-murder conviction will often reach only a defendant who could have been convicted of murder anyway.²³

Students lose points when they treat these criticisms as a reason to refuse the rule on exam facts, because criticism explains the limits and does not displace a retained rule. Where a jurisdiction keeps felony murder, the answer applies the rule together with the limits that the criticisms produced, and the sweep below collects them in the order a fact pattern raises them.