Adam Liptak raised the issue of the uniquely American felony murder rule in this New York Times piece.  Since he writes for public consumption, he framed the problem in terms of why a guy who let another guy borrow a car to commit a felony should be convicted for murder.  It seems that in the course of a burglary of a pot dealer, the guy who borrowed the car killed the dealer’s daughter.

This isn’t your typical felony murder scenario.  In Liptak’s story, the car lender was nowhere in sight when the felony, no less the murder, went down.  Moreover, he was in position to affect what happened at the crime.  He loaned a car, and the implication is that he knew that the car was being borrowed to go commit a crime.  Certainly not a good thing, but how bad is the question.

The argument against the lender was simple:

A prosecutor explained the theory to the jury at Mr. Holle’s trial in Pensacola in 2004. “No car, no crime,” said the prosecutor, David Rimmer. “No car, no consequences. No car, no murder.”

Sounds good on the surface.  But the same could be said for air or food.  No air to breath, no crime.  No food to eat, no crime.  I could go on, but the point is clear.  The problem is one of intent and proportionality.  The person who facilitates a felony is not a hero.  Indeed, he’s a criminal.  But is he a murderer?

Still, victims groups and prosecutors want to make as many people responsible for murder as possible.  The reason is clear.  If there is a deterrent effect, then the broader you spread the pain, the more effective the deterrence.  But deterrence is only one aspect of criminal justice.  When the crime is dissociated from the intent and act, then it makes the law absurd.  This attenuation makes it impossible to for deterrence to work, unless the message is never facilitate any offense and then you don’t have to worry about it.

Liptak omits from his article the necessary component that the murder be a foreseeable consequence.  It’s not a major omission, since courts routinely leap over this because they can always find some rhetorical view that makes it foreseeable.  To a large extent, it’s true.  But foreseeability isn’t the same thing as intent.  We can imagine a lot of different things happening, but that doesn’t mean we want (or have any say) in them happening.

So here’s the problem.  What’s wrong with traditional murder charges, without the felony murder rule, for the prosecution of a homicide?  Each player suffers the consequences justified by his conduct and mens rea.  To the extent that a person has broken the law, he is charged with the offense that be proven.  What’s the need for the shortcut that circumvents all traditional purposes to the creation of crimes?

The guy who killed the pot dealer’s daughter gets tried for his conduct.  Murder.  A crime was committed and a perpetrator was caught, tried and punished.  Isn’t this enough?  This is the person who, whether intentionally or with conscious disregard, killed a person.  We already have laws that make this a crime, and those laws are pretty clear and effective. 

As for the guy who loaned a car to commit a burglary, he suffers the consequences of his conduct too.  It just isn’t murder.