The felony-murder doctrine will surprise some people. It’s a fairly common refrain on the criminal defense side, “but I didn’t kill anyone.” And you don’t have to in order to be charged and convicted of murder.
While the specific parameters of the rule vary between jurisdictions, the general idea is that if a death results from the conduct of committing a felony, everyone involved is guilty of murder for the death. Usually, there is a requirement that it be reasonably foreseeable, at least to accomplices or co-conspirators if not the actual killer, but that’s more a matter of coming up with a good explanation for chaos theory connections than reality.
The upshot is that if a felony is committed, resulting in a death that may never have been intended or even known, tough nuggies. That you didn’t mean for anyone to die doesn’t change that someone did die as a result of your actions. And few would argue the virtue of the felon whose choices resulted in a needless death. But is it murder?
One explanation of the rule is that a person who intends to commit a crime can’t hide from the consequences of his choice by claiming lack of intent, knowledge or pointing his finger at the shooter. If the plan was an armed robbery, but no one was to be shot, you can’t pretend to be shocked when your accomplice pulls the trigger. You knew it was an armed robbery. You knew he had a gun. You knew the gun could be shot. You knew.
Another is that life matters. Black lives. Blue ones. Even white ones. The law holds the criminal taking of life to be the ultimate offence, and few would argue otherwise. If a life is taken while a crime is being perpetrated, the intent to commit the crime is transferred to the intent to take the life. So you didn’t mean for anyone to die? You should have thought of that before deciding that committing a crime was a good idea. You killed, even if you didn’t drive the getaway car that ran over the mother and infant.
But it’s not without criticisms as well. It imputes culpability to people who neither engaged in, nor intended to engage in, conduct that would harm or kill anyone. It’s quite different to choose to rob a liquor store and run away with a couple hundred bucks than kill the owner. Is it his fault an accomplice lost his cool, did what they said they would never do, and pulled the trigger? Or even worse, accidentally engaged in bad gun handling and fired by mistake? And that error, unforeseeable in the sense that it was expressly not supposed to happen, turns one into a murderer?
And how far should this doctrine extend? The second guy inside the liquor store is one thing, but what about the guy outside driving the getaway car? What about the guy who lent his car to a friend, who used it for the armed robbery? Did he know they would be using the car for a robbery? Even if he did, should he be a murderer too?
A bill moving through the California Legislature would change state law so that only someone who actually killed, intended to kill or acted as a major player with “reckless indifference to human life” could face murder charges.
If the bill passes the State Assembly, California will join a growing number of states in abolishing or severely restricting felony murder. Over the decades, legislatures in Hawaii and Kentucky have abolished the rule, and, last fall, Massachusetts joined Michigan in ending it through the courts. The Pennsylvania Legislature is weighing a bill aimed at curtailing the practice.
There is a deterrence aspect to the felony murder rule. Don’t commit a felony and you won’t end up being convicted of a murder someone else committed. But this is the sort of extended fallacious thinking that doesn’t do much to change anyone’s real life conduct. If the sentence for the robbery alone isn’t sufficient to deter someone from doing it, or help someone to do it, then the outlier possibility of someone being killed on top of the robbery isn’t going to influence the choice.
“Many times in California, if you didn’t commit the murder, didn’t know the murder occurred, you could be charged and have the same sentence as the actual murderer,” said State Senator Nancy Skinner, who introduced the legislation in part because, she said, felony murder cases disproportionately affect women and young black and Latino men. “They had bad judgment, but they didn’t commit a murder — and when I understood this, I knew we had to fix that.”
Like almost every argument of late relating to crim law reform, there’s the disproportionate impact argument. And as with almost every argument, it either appeals to you because of your ideology or it leaves you to think that whoever is saying so lacks any sound reason for the position. If the felony murder rule is otherwise sound policy, then the fact that it disproportionately affects women and minorities means that women and minorities should engage in fewer felonies that result in murder.
But there are rational arguments against the rule.
Critics of the rule say felony murder can lead to absurd results. In some cases, accomplices have been charged with felony murder when the death actually occurred at the hands of the police or even the victim.
There are outlier applications of the rule, where the shooter was the target of a robbery or the police, and the person killed an accomplice. There are felonies, such as a pot buy gone bad, where foreseeability was so attenuated that only by believing in unicorns could one connect the dots. Yet, convictions for felony murder happen.
The only “legitimate” purpose to the rule is retribution, someone died so someone must pay. Life is precious, and indeed it is. But that’s not enough reason to turn someone peripherally connected to a killing into a murderer. They will be punished for the felony committed, but not the killing someone else committed and over which they had neither control nor culpability. It’s a harsh and pointless rule that serves only to make more murderers. We have enough already.