Punishing A Person for Another's Crime:

The Felony Murder Rule

by

Lauren Theresa Gomez

A Thesis Submitted to the Faculty of

the Harriet L. Wilkes Honors College in Partial Fulfillment of the Requirements for the Degree of

Bachelor of Arts in Liberal Arts and Sciences

with a Concentration in Political Science

Harriet L. Wilkes Honors College of

Florida Atlantic University

Jupiter, Florida

May 2012

PUNISHED FOR ANOTHER PERSON'S CRIME: THE FELONY-MURDER RULE

by

Lauren Theresa Gomez

This thesis was prepared under the direction of the candidate’s thesis advisor, Dr. Mark Tunick, and has been approved by the members of her supervisory committee. It was submitted to the faculty of The Honors College and was accepted in partial fulfillment of the requirements for the degree of Bachelor of Arts in Liberal Arts and Sciences.

SUPERVISORY COMMITTEE:

______

Dr. Mark Tunick

______

Dr. Timothy Steigenga

______

Dean, Wilkes Honors College

______Date

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ACKNOWLEDGEMENTS

I would like to thank my advisor - Dr. Mark Tunick, my second reader - Dr. Timothy Steigenga, as well as my thesis support group, Alex Lange and Meridith Wailes, for their continued support and help with the researching and writing of my thesis.

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ABSTRACT

Author: Lauren Theresa Gomez

Title: Punished for Another Person's Crime: The Felony-Murder Rule

Institution: Harriet L. Wilkes Honors College of Florida Atlantic University

Thesis Advisor: Dr. Mark Tunick

Degree: Bachelor of Arts in Liberal Arts and Sciences

Concentration: Political Science

Year: 2012

The felony-murder rule declares that if a death occurs during the commission of a felony, all persons involved in the felony will be held culpable for the death. The rule makes every person equally culpable for the death, regardless of his or her mental state and degree of involvement during the crime. Drawing on theories of punishment and scholarship on culpability, I argue that the felony-murder rule needs to be modified. Each person involved in the crime should not be held accountable for the actions of another, but should only be held responsible and culpable for their own intended actions.

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To Mom, Dad, Gaby, and the rest of my family, but especially to Aba and Abi, who gave up everything that they had so that all of this could be possible. Los quiero a todos, desde aquí hasta el cielo.

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TABLE OF CONTENTS

Introduction: The Cases of Ryan Holle, Lisl Auman, and the Tison Brothers ...... 1

Chapter I: The Background of the Felony-Murder Rule ...... 6

Chapter II: Theories of Punishment and

How They Relate to the Felony-Murder Rule ...... 18

Chapter III: Causation and Culpability - Who is Truly at Fault? ...... 30 Chapter IV: The Deterrence Effect ...... 43 Conclusion: Examples for the Rest of the United States to Follow ...... 55

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PUNISHED FOR ANOTHER PERSON'S CRIME:

THE FELONY-MURDER RULE

INTRODUCTION: The Cases of Ryan Holle, Lisl Auman, and the Tison Brothers

Ryan Holle was sleeping in his bed after a night of drinking and partying. He was woken up by his friend, William Allen Jr, who asked to borrow his car.1 Holle had lent

Allen his car many times before and so he told Allen that he could use the car. He gave

Allen his keys and went back to sleep. Allen then picked up three other men and drove them to the house of Christine Snyder, a drug dealer. Allen stayed in the car while the other three men entered the house and broke into a safe containing about one pound of marijuana and US $425.2 Snyder's daughter, Jessica Snyder, happened to be in the house during the burglary and one of the men, Charles Miller Jr, beat her in the head with the butt of a shotgun until she died while the other two men watched. Holle was charged with murder even though he had been one and a half miles away, sound asleep in his bed, at the time of the crime.

Lisl Auman was handcuffed and sitting in the back of a police car when her companion, Matthaeus Jaehnig, shot and killed a police officer.3 The pair had broken into

Auman's ex-boyfriend's hotel room. A passer-by called the police and Auman and

Jaehnig fled. Auman was apprehended while Jaehnig continued to elude the police.

Jaehnig ran around a network of townhouses and shot and killed a police officer. Auman was charged with murder.

1 Liptak, Adam, "Serving Life for Providing Car to Killers," New York Times. (Dec 4, 2007) 2 "Two Convicted of Murdering Teen," St. Petersburg Times. (2004) 3 "Lisl Auman's Conviction Reversed: State Supreme Court Orders New Trial," ABC 7 Denver News. (2005) 1

Three brothers, Raymond, Ricky, and Donald Tison, helped their father, Gary

Tison, and his friend, Randy Greenawalt, escape from prison.4 While they were driving their getaway car, one of the tires went flat. Raymond flagged down a car that contained the Lyons family - husband John, wife Donnelda, son Christopher, and niece Theresa - while the other men hid in the bushes. The family pulled over to the side of the road to help Raymond. As soon as the car came to a stop, the other men jumped out from the bushes and made the family get out of the car. After driving both cars, the Lyons' and the getaway car, farther into the desert, Gary Tison told Donald, Ricky, and Raymond to go get water. Upon their return, Gary and Randy shot and killed the Lyons family. The brothers and Greenawalt were found several days later and charged with murder. Gary escaped into the desert and died of heat exposure.

How is it that a person who did not commit murder can be charged with murder?

Ryan Holle, Lisl Auman, and the Tison brothers were guilty by association. They were prosecuted and charged because of the felony-murder rule. According to the felony- murder rule, no matter how far removed a person may have been from the murder, if they were involved in the commission of a felony that precipitated a murder then they, along with the person who actually committed the murder, can be charged with murder. This rule is why Ryan Holle, a teenager who provided his car to friends, is currently in prison for life with no chance of parole; why Lisl Auman, who was in police custody at the time of the murder, sat in jail for almost eight years; and why three brothers were punished and sentenced to life in prison for their father's crime.

4 Wittenbrink, Lynn D, "Overstepping Precedent? Tison v. Arizona Imposes the Death Penalty on Felony- murder Accomplices," North Carolina Law Review 66:817-837 (1988), 824-826. 2

The felony-murder rule and its application to different situations raises many questions about who could be implicated in a murder if the rule was applied. If Ryan

Holle had not lent his car to his friends and they had instead called a taxi, would the taxi cab driver be charged with felony-murder? What if the taxi cab driver had heard the men discussing the burglary, but not the murder? In Ryan Holle's case, the argument "no car, no crime" was made to implicate him in the crime. The argument meant that if it had not been for Holle lending his car to his friends, the crime would not have occurred.5 Could the same argument be made if it was the taxi driver who took the men to their desired location?

The felony-murder rule diminishes the importance of culpability. The rule assumes that each person involved in the felony is equally as culpable when a murder occurs during the felony; this can include the getaway driver, the lookout, and in Ryan

Holle's case, the person who lent their car to the people who committed the crime. The felony-murder rule also dismisses any idea of proportionality, or the idea that the punishment should fit the crime. A person who did not commit the murder is punished just as severely as the person who actually committed the murder, no matter how far removed they were from the crime. The rule also does not follow any prevailing theory of punishment. The two most contended and competing accounts are utilitarianism and retributivism.6 Utilitarianism, in its most basic sense, argues that punishment is fitting when the social utility of the punishment outweigh its costs; that is to say that it benefits the greater good. For utilitarians, punishment can be justified if it deters the individual from committing future crimes, or if it deters would-be criminals from committing the

5 Liptak, Adam, "Serving Life for Providing Car to Killers," New York Times. (2007) 6 Tunick, Mark, Punishment: Theory and Practice. (Berkeley: University of California Press, 1992), 67. 3

crime. This is the most basic form of utilitarianism, but there are variations such as rule utilitarianism, which admits that sometimes there is greater overall utility in abiding by a rule even if it seems in a particular case that breaking the rule would be best. Act utilitarianism holds that the consequences of a single act are what count when determining if the act is right.

I shall argue that utilitarians should disagree with the felony-murder rule because its costs outweigh its benefits and it does not serve the purpose of deterrence. Rule utilitarians, who might defend the law by saying that even though it is not right in some instances, it is beneficial for the most part, should also disagree with the felony-murder rule because the rule is not beneficial in most instances. While it serves as a bright-line rule and saves time by making everyone culpable for the murder instead of having to determine each person's culpability, it does not serve the purpose of deterrence. The person who is being punished for another's crime never committed the crime in question, therefore they cannot be deterred from committing a crime again that they never committed to begin with. Retributivists believe in justice and the idea that we must punish those who do wrong, even if it detracts from social utility.

Retributivists believe in only punishing a person according to their culpability.

They do not believe in excessive punishment for a crime, only in a person receiving their

'just deserts.' For retributivists, people cannot be treated as a means to an end. People must be thought of as an end unto themselves. Retributivists would disagree with the felony-murder rule because the person charged with felony-murder is being unjustly punished for a crime that they did not commit.

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It is my argument that the felony-murder rule is inconsistent with both prevailing theories of punishment, utilitarianism and retributivism. The felony-murder rule is an outdated doctrine that should no longer have any standing in the United States legal system. The rule should be re-evaluated and rewritten. Cases involving a murder during the commission of a felony should be decided on a case-by-case basis and not by a bright line rule, like the felony-murder rule. The rule undermines the idea of degrees of culpability by making even the most far removed person from the crime liable for another person's action.

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Chapter I - The Background of the Felony Murder Rule The felony-murder rule has an unclear and muddled history. Historians have attempted to trace the rule's history, but have only come up with possible answers. Case law and common law are possible sources for the origin of the felony-murder rule.

However, there is no concrete answer to the question of how the felony-murder rule came into being. It seems as though common law and case law had always mentioned a type of felony-murder doctrine, but had never put it into action through an actual rule until much later.

There are two cases that are commonly cited by historians and scholars as the possible beginnings of the felony-murder rule in the English court system. The first case is that of Lord Dacre in 1535. He was on a hunting trip and had told his hunting party to kill anyone who got in their way. A member of Lord Dacre’s party killed a gamekeeper after confronting him in the park. Lord Dacre was not present at the time at the time of the murder, but was still held responsible.7 The second case is that of Mansell and

Herbert. Herbert and a group of followers went to the house of Sir Richard Mansfield with the intent to take goods. One of Herbert's servants threw a stone towards Mansfield's house. The stone missed the house but instead hit a servant of Mansfield's, which caused him to die. The court was divided on how to rule, but ultimately decided that although someone died unintentionally, an act of violence toward a third party that resulted in death was deemed murder.8 These cases give a glimpse into the minds of the English courts at the time, but do not conclusively reveal how the felony-murder rule came to be such a well known, although sparsely used, doctrine in England.

7 Binder, Guyora, "The Origins of American Felony Murder Rules," Stanford Law Review. 57:(1):59-208 (2004), 77. 8 Binder, Guyora, 77. 6

English courts and common law were not the only contributors to the establishment of the felony-murder rule. Scholars, clerics, lawyers, and commentators also contributed to the establishment of the felony-murder rule by voicing their opinions about what actions and crimes did and did not constitute murder. Though he wrote mainly about homicide, Henry de Bracton, an English lawyer and cleric in the 13th century, gave his thoughts about accidental death during a "proper and improper act":

"By chance, as by misadventure, when one throws a stone at a bird . . . and another passing by is unexpectantly struck dies[,] * * * here we must distinguish whether he has been engaged in a proper or an improper act. Improper, as where one has thrown a stone toward a place where men are accustomed to pass, or while one is chasing a horse or ox someone is trampled by the horse or ox and the like here. But if he was engaged in a lawful act liability is not imputed to him."9

Unlike the scholars that would come after him, Bracton does not define what he means by an improper act: should it be a felony, or be dangerous, or have malice aforethought?

Bracton's main concern is whether the killing happened during a proper and cautious act or during an improper and incautious act. In 1619, English commentator Michael Dalton stated that "If a man be doing of an unlawful act, though with any evil intent, and he happenth by chance, to kill a man, this is felony, viz. manslaughter at least if not murder in regard the thing he was doing was unlawful."10 In this scenario, Dalton is most concerned with the act itself. He claims that if the act is unlawful and the person committing the unlawful act has any evil intent, then the act is a felony. The distinction between a person committing a lawful act versus an unlawful act is crucial to the formulation of the felony-murder rule. A person must be committing an unlawful act with evil intent for the felony-murder rule to be in effect. In 1644, Lord Edward Coke wrote

9 Binder, Guyora, 74. 10 Birdsong, Leonard, "A Historical Perspective By Which to Understand Today's Modern Felony Murder Rule Statutes," Thurgood Marshall Law Review. 32(1):1-25 (2006), 8. 7

that if a man meaning to steal a deer in another's territory, shoots at the deer but instead hits a boy hidden a bush, that is murder. Even though the man only meant to hit the deer and not the boy, the act is unlawful because the man was killing a deer in another's territory. However, Lord Coke also countered his statement by saying that if a man was shooting a deer in his own territory and accidentally hit a boy hiding in a bush then it was

"homicide by misadventure, and no felony."11 Lord Coke's interpretation is important because it distinguishes a killing during a lawful act and a killing during an unlawful act.

If a killing occurs during a lawful act, it can be attributed to accidental homicide because the person was acting lawfully at the time and the killing was an accident. If a killing occurs during an unlawful act, it can be called a murder or a felony because the person was committing an unlawful act and should not have been there in the first place.

By the end of the seventeenth century, Lord Hale built upon the scholarship before him that a killing during a crime was murder. Hale's interpretation of the felony- murder rule is the first to limit the doctrine to only violent or dangerous crimes, thus restricting the number of crimes that the rule could be applied to. He believed that the unlawful act was the ground for establishing the degree of criminal homicide. The next

English commentator that seemed to have shaped the felony-murder rule is Foster. His writings focused on the example of a poacher who kills accidentally. Foster postulates that if the poacher intended to steal the deer, then he is committing a felony. Therefore, if the poacher shot someone in the bush, it would be considered "murder by reason of felonious intent."12 Foster's main concern is with the initial act. If the poacher intends to steal a deer and then shoots and kills a person hidden in a bush, Foster transfers the ill

11 Birdsong, Leonard, 9. 12 Birdsong, Leonard,13. 8

intent of the crime to the killing. Foster, unlike other scholars, was not concerned with the danger involved with the unlawful act. He did not look at the dangerousness of the act, but instead only with whether the act was lawful or unlawful.13 Another commentator who shaped the idea of felony-murder was Hawkins. In the early eighteenth century he wrote that "whenever a man intending to commit one felony, happens to commit another he is as much guilty as if he had intended the felony which he actually commits."14 By the early eighteenth century, the crimes that constituted a "felony" had been enumerated - murder, manslaughter, rape, burglary, arson, abduction, robbery, theft, mayhem, sodomy, and abduction with intent to marry.15 There were a few other felonies, but they were variants of common-law felonies that had already been listed. These crimes were inherently dangerous, so making the criminal culpable for a death that may have resulted from any of these crimes was seen as justifiable and right. Hawkins main arguments are expressed in the following passage: "a person who in the pursuance of a deliberate intention to commit a felony, chances to kill a man, as by shooting a tame fowl with intent to steal them is guilty of murder on the basis . . . whenever a man intending to commit one felony, happens to commit another he is as much guilty as if he had intended the felony which he actually commits."16 Hawkins' passage implies the following arguments:

(1) Killing in the course of an unlawful act is murder only if accompanied by an "ill intent," according to Hale's writing on the subject; (2) Hale does not limit "ill intent" to [the act of] kill[ing] but [also] knowingly imposing a risk of death or injury; (3) such a knowing imposition of risk is inherent in all crimes that would tend to provoke resistance; (4) felonies are a particularly heinous subset of such inherently dangerous crimes; (5)

13 Birdsong, Leonard, 13. 14 Birdsong, Leonard, 12. 15 Binder, Guyora, 91. 16 Birdsong, Leonard, 11-12. 9

hence, the intent to commit a felony may be included within the "ill intent" that qualifies killings in the course of unlawful acts as murder.17

Hawkins' conjecture is the most similar to the modern day felony-murder rule. He believed that if a killing occurred during an unlawful act, accompanied by ill intent and knowledge that the act could be reckless, then any killing resulting from that action would be considered murder.18

The first mention of a felony-murder rule, or murder liability, in a court case did not make an appearance in England until the eighteenth century. The case, R. v.

Plummer, involved a group of people that were trying to export wool illegally. One member of the group killed another member. The court concluded that Plummer was not guilty of murder based on the facts. Still, Chief Justice Holt wrote about the circumstances where participation in an unlawful act that resulted in death would warrant murder liability. Holt wrote that for a person to be held liable for a murder committed by another person "the abettor must know of the malicious design of the party killing," "the killing must be in pursuance of that unlawful act, and not collateral to it," "the unlawful act ought to be deliberate," and "it ought to be such an act as may tend to the hurt of another either, immediately, or by necessary conflict."19 Holt's four conditions for murder liability also rested on the dangerousness of the crime - the more dangerous the crime, the more likely that an abettor would be found liable for the murder.

The cases of Lord Dacre and Mansell and Herbert, along with the writings of the

English scholars, give some idea as to how the doctrine of felony-murder was developed.

17 Birdsong, Leonard, 11-12. 18 Birdsong, Leonard, 12. 19 Binder, Guyora, 88.

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However, it is clear that the doctrine did not only originate from case law or common law developed through the rulings of judges since the first case to involve felony-murder did not occur until the eighteenth century and scholars had been writing about felony-murder for centuries before. It is also clear that it took years for scholars to formulate just what constituted felony-murder; was it murder if it was accidental? Was it murder, or manslaughter, or a homicide if it occurred during a lawful act? Was it murder, or manslaughter, or a homicide if it was committed during an unlawful act? The doctrine had humble beginnings starting with Bracton, who would only make a person liable for a killing during an improper act (though he never defined exactly what an improper act was), to the later scholars like Foster and Hawkins, who both stated that a person must be in act of committing a felony when the killing occurs for it to fall under the felony- murder rule. Each scholar came to their own conclusion about what constituted felony- murder, but the basic premise that seemed to evolve from their works was that a killing arising from an unlawful act committed with ill intent would be considered murder. The case of R. v. Plummer illustrates that the felony-murder doctrine was discussed cautiously, but not applied readily. Instead, it was carefully thought out and discussed in the event that one day it may be used. Courts were also slow to convict co-felons, believing that a person had to participate in or encourage the death to be found liable. In the 1831 case of R. v. Collison, two watchmen caught two men trying to steal apples.

One of the men assaulted one of the watchmen. The other thief was not found liable for the assault of the watchman because although he had taken part in the theft, he had not agreed to or taken part in the assault.20 In another case, Duffey's and Hunt's Case, the court iterated a similar philosophy. They said "if three persons go out to commit a felony,

20 Binder, Guyora, 100. 11

and one of them, unknown to the other, puts a pistol in his pocket and commits a felony of another kind, such as murder, the two who did not concur in this second felony will not be guilty thereof, notwithstanding it happened while they were engaged with him in the felonious act for which they went out."21 The courts did not believe in making a second person culpable for the actions of another, even if the two persons had been actively committing a felony when the killing occurred.

So, although widely believed to have evolved in England, the felony-murder rule was only thought and written about, but never actually put into effect through a court case or ruling. English courts never used the felony-murder doctrine as a strict rule of law.

Many judges dissuaded juries from applying the doctrine and instead they lessened charges against criminals to manslaughter or homicide. Judges also rejected the idea that the mental element for one felony could transfer, or substitute, for the mental element needed to prove another felony. "[N]either the cases nor the commentators furnish evidence that the doctrine was the product of a conscious, deliberate reasoning process designed to reflect or implement penal policies."22 England abandoned the felony-murder doctrine by a statute in 1957. The doctrine only survived for about a century in English courts before it was abolished.23

The long-held assumption about the felony-murder rule has always been that it evolved from common law in England and it was brought to the colonies by the English settlers and thus found its place in American law. However, as evidenced by the information above, the felony-murder rule was only spoken and written about at the time

21 Binder, Guyora, 100. 22 Tomkovicz, James J, "The Endurance of the Felony-Murder Rule," Washington and Lee Law Review. 51: 1429-1480, (1994), 1443. 23 Birdsong, Leonard, 26. 12

of the founding of the colonies and the American Revolution. The earliest example of a felony-murder type doctrine in colonial America is in a treatise by a scholar on Virginia law, George Webb. In 1736, Webb defined murder as killing with "malice aforethought, express or implied." Webb then went on to say that in the cases where "a Man is resolved to do an unlawful Act, as to rob, or steal, and Death ensues" or "if a Man intends to kill, stab, shoot, or poison another, and the Death of a Third Person ensues" then in these cases it would be considered express malice. By stating "resolved to do" in the above sentence, Webb does not simply mean the intent to commit the crime.24 He is asserting that the person would be fully committed to completing the unlawful act. This is an important distinction, because as the Lord Dacres' case showed, it is not whether a person contemplates or suggests an unlawful act, it is whether they or their party commit the unlawful act. Intent coupled with action is what Webb is describing. He implies that intent alone is not enough to convict someone; they must go through with it. Webb also resolved that implied malice would be "if several Persons come with Intent to rob, kill, or steal, or to commit any other unlawful Act, and One of them commits Murder, tho' not in

View or Presence of the Rest, all are principal Murderers."25 Webb's idea of implied malice differs from that of the courts in the Duffey and Hunt case. For Webb, the idea that the several Persons committed the initial felony together thus makes them just as liable as if one person from their group commits murder during the felony.

Just as in England, the felony-murder rule was written about and discussed long before it was used in the courts in the colonies. The thought has always been that common law in England was established as rule of law in the colonies. This is true, but

24 Binder, Guyora, 110. 25 Binder, Guyora, 112. 13

only insofar as the colonies decided to enact them. Local lawmakers and courts were never instructed to use English common law to guide their decisions.26 After the

American Revolution, English common law was only referred to and used when the situation called for it or when the law was approved on the grounds of reason and expedience.27 Some American laws were brought about by legislative reform. In 1794,

Pennsylvania, through a reform statute, divided murder into degrees and restricted punishments to certain degrees. For example, capital punishment was only to be used for those guilty of first-degree murder. Pennsylvania came closest to actively putting into place a felony-murder rule when it said, "[A]ll murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in the first degree" and all other murders would be murder in the second degree.28 The Pennsylvania statute was incredibly influential - twelve states adopted the statute with little to no reform while nineteen states adopted the statute with a modified grading scheme. The spark from the Pennsylvania reform saw Illinois creating the very first felony-murder statute in America in 1827. It defined murder as an unlawful killing with express malice or implied malice by circumstances showing "an abandoned and malignant heart." The statute went on to say that an involuntary killing "in the commission of an unlawful act which in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, ... shall be deemed and adjudged to be

26 Binder, Guyora, 114. 27 Binder, Guyora, 115. 28 Binder, Guyora, 119. 14

murder."29 New Jersey and New York soon followed Pennsylvania's example with felony-murder statutes of their own. New Jersey based their statute not on implied malice, but on intent to commit a dangerous felony, while New York based their statute on intent to commit any felony. By the end of the nineteenth century, all but eight states did not have legislation referring to a murder committed during the course of a felony or a felony aggravator statute.30

In addition to the development of the felony-murder rule, there has also been the development of how to treat accomplice liability. There are two different thoughts on the matter: accomplices agreed to the initial felony and they should be held accountable for any and all further crimes resulting from the initial crime or the accomplices cannot be held liable for another person's action and therefore can only be held accountable for their own actions during the course of the felony. The four types of cases that apply to accomplices in assessing the felony-murder rule are: (1) accomplices participate in a violent assault, but do not strike the fatal blow, (2) accomplices participate in a felony necessarily involving violence or imposition of risk, but they do not participate in the violence, (3) accomplices participate in a crime that might involve violence, but they do not participate in the violence, (4) accomplices participate in a crime which typically would not involve violence or risk, and do not participate in any violence.31 Most

American jurisdictions avoided holding co-felons strictly liable for accidental death by limiting felony-murder to causing death through violence or imposition of risk during the course of dangerous felonies or participating in felonies where the dangerous acts would

29 Binder, Guyora, 120-121. 30 Binder, Guyora, 132. 31 Binder, Guyora, 199. 15

foreseeably lead to death.32 Currently, many American jurisdictions do not limit felony- murder to only dangerous felonies that could foreseeably lead to death. The rule extends to all those crimes that are categorized as felonies.

The felony-murder rule was abolished in England in 1957.33 It was sparsely used and hotly debated during its brief stay in English legislature. In the United States, four states, Kentucky, Hawaii, Ohio, and Michigan, have also abolished the felony-murder rule.34 Hawaii even claimed that it was "not sound principle to convert an accidental, negligent, or reckless homicide into a murder simply because, without more, the killing was in furtherance of a criminal objective of some defined class ... There appears to be no logical base for the felony-murder rule which presumes, either conclusively or subject to rebuttal, culpability sufficient to establish murder."35 The remaining forty-six states have retained the doctrine in an altered form. The felony-murder rule is more expansive in the

United States than it was in England and has undergone many transformations since its humble beginnings. The rule is varied in the states where it is used and restricted to each state's definition of what a felony is; although all states consider robbery, burglary, rape, and arson a felony, some states also apply the rule to kidnapping, sex crimes like child molestation, and drug crimes.36

The inception of the felony-murder rule is ambiguous. There are a few things that are clear: the felony-murder rule in America was not taken from common law in England,

English common law was only established in America insofar as they were enacted by

32 Binder, Guyora, 201. 33 Birdsong, Leonard, 26. 34 McCarthy, Kevin E, "Felony Murder," OLR Research Report, (2008), http://www.cga.ct.gov/2008/rpt/2008-r-0087.htm 35 Hawaii Statute § 707-701, http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701- 0853/HRS0707/HRS_0707-0701.htm 36 Malani, Anup, "Does the Felony-Murder Rule Deter? Evidence from FBI Crime Data," (2007) http://www.nytimes.com/packages/pdf/national/malani.pdf 16

courts and lawmakers, and American jurisdictions developed felony-murder rules that were specific to their area and many did not rely on English courts commentary on the rule. The United States is unique in that each state has its own version of the felony- murder rule. Although many states' felony-murder rules resemble each other, each is able to define exactly what felonies or crimes define the felony-murder rule. In the United

States, the need to hold someone accountable for a crime has led to the felony-murder rule. The felony-murder rule makes sure that even if an accidental death occurs during the commission of a felony, someone will be charged with the murder.

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Chapter II: Theories of Punishment and How They Relate to the Felony-Murder Rule There are many theories of punishment. The two most prevalent theories are retributivism and utilitarianism. Retributivism holds that a person receives their just deserts when they are punished.37 Criminals are punished according to the severity of their crime. Retributivists argue that criminals must be punished regardless of whether society benefits from the punishment so that justice can be done. Utilitarians, in contrast, argue that a person should only be punished if the punishment of the criminal benefits the greater good of society. Therefore, if punishing the criminal would hurt society more than help it then utilitarians would forego punishing the criminal. However, utilitarians also embrace alternative methods of punishment such as rehabilitation instead of imprisonment in order to provide the greatest happiness to society.

Retributivism is based on the idea of just deserts. If a person commits a crime, they must be punished. In contrast to utilitarianism, retributivists do not believe that punishment needs to benefit society. The person is punished because they have committed a crime and the only way to right the wrong is to punish.38 The true meaning of a retributivist perspective on punishment can be found in a passage by Immanuel Kant, an 18th century German philosopher. He suggests that:

Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decide to separate and disperse

37 Hart, HLA, Punishment and Responsibility, (New York: Oxford University Press, 1968) as cited in Bedau, Hugo Adam. "Retribution and the Theory of Punishment" The Journal of Philosophy 75(11):601- 620 (1978), 602. More thoroughly, HLA Hart proposed that there are three tenets of retributivism: (1) A person may be punished if and only if he has voluntarily done something wrong. (2) The punishment must match, or be equivalent to, the wickedness of the offense. (3) The justification for punishing persons is that the return of suffering for moral evil voluntarily done is itself just or morally good. 38 Rawls, Collected Papers, 21-22. Editor: Samuel Freeman (Cambridge: Harvard University Press, 1999) 20-46 as cited in Corlett, J Angelo. "Making Sense of Retributivism" Philosophy 76(295):77-110 (2001), 79. John Rawls contends that "Punishment is justified on the grounds that the wrongdoing merits punishment. It is morally fitting that a person who does wrong should differ in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of his act." 18

themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of justice.39

For retributivists, it does not matter if the punishment being meted out will be beneficial to society or have a long-lasting effect, what matters is that the criminal is being punished for committing a crime and their wrong is being righted by the punishment.

Retributivism is too often thought of as vengeance or a retaliation of sorts.

However, retributive punishment need not be vindictive. The theory of retribution is simply that a wrong has been committed and a proportionate punishment must be inflicted on he who committed the crime - it is the only way to right the wrong of the crime. Immanuel Kant stated that punishment "can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the grounds that he has committed a crime; for a human being may never be manipulated merely as a means to the purposes of someone else."40 Retributivists are quick to ensure that humans will not be a means to an end.

Punishing someone is only done because they have committed a wrong, not because it would promote or enhance something else.

In this same vein, retributivists believe in the proportionality principle. JD

Mabbot, a 20th century scholar, suggested that "we can grade crimes in a rough scale and penalties in a rough scale, and keep our heaviest penalties for what are socially the most

39 Scheid, Don, "Kant's Retributivism," Ethics 93(2):262-282 (1983), 279. 40 Kant, Immanuel, The Metaphysics of Morals, Mary Gregor, Translator and Editor, (Cambridge University Press, 1996), 105 as cited in Corlett, J Angelo, "Making Sense of Retributivism," Philosophy 76(295):77-110 (2001), 86. 19

serious wrongs."41 This idea of a proportionality principle suggests that society can rank crimes and punishments so that less severe crimes receive less severe punishments and the most heinous crimes will receive the harshest punishments. Like the idea that humans should only be punished if they have committed a wrong, so this principle seeks to retain some sense of morality when punishing criminals. A petty thief will not be given the same sentence as a murderer.

One of the problems that retributivists encounter is the thought that retributivism is simply vengeance with a fancier name. Retributivism is often compared to the law of the talio, or "an eye for an eye." Mark Tunick points out that "the law of the talio, or of retaliation, is not necessarily connected to the idea of revenge. To see punishment as revenge is to focus on the motivations of the punisher, whereas the lex talionis is a law of equivalence that dictates what punishment is commensurate with the crime; it is not a theory of motivation."42 Retributivism is not motivated by vengeance nor does it seek to cause a person the same amount of pain that that person caused another. GWF Hegel, a noted retributivist and German philosopher, believed that the emotions that fuel revenge, anger and resentment, are subjective and reside in individuals.43 If a person directly related to the harm caused by the crime were the person handing down the punishment, perhaps then the punishment could be attributed to revenge or spite. However, the most important fact for a retributivist is that a judge is the person who hands down the

41Mabbot, JD, "Punishment," Mind, 48: (1939), 162 as cited in Corlett, J Angelo, "Making Sense of Retributivism," Philosophy 76(295):77-110 (2001), 94-5. Corlett enumerates the possible tenets for proportional punishment: "(1) punishment must never be so great that it is inhumane, (2) the type, mode, or amount of punishment inflicted on an offender by the state must never be contingent on the offender's actual or perceived ethnicity, sexual orientation, gender, religious, or political affiliation, socio-economic class, etc, (3) an offender's criminal history should not be relevant to sentencing, and (4) only when it is humane to do so is punishment to be meted out in sameness of kind to the offense committed, based on the intent, capacity to act freely, etc. of the offender at the time of the offense." 42 Tunick, Mark, Punishment, (Berkeley: University of California Press, 1992), 87. 43 Tunick, Mark, 88. 20

punishment to the criminal. The judge is removed from the situation and has only the interests of the state in his mind. This example shows that retributive justice is far removed from revenge because retributive justice involves judges, magistrates, and the laws of the state to determine the appropriate punishment for the criminal. Revenge would not involve any of those actors and only involve those who were hurt by the criminal and felt the need for vengeance. Retributivism allows the criminal to be evaluated by a third party who was not involved in the crime. The difference between retributivism and anger or revenge is that the punishment is not coming from a private person who may not adhere to the laws of the state, but a judge who will adhere to the rules and laws of the state in giving the punishment. It is a condemnation by society for the wrong committed by the criminal instead of just an angry party connected to the crime seeking revenge on the criminal. Walter Berns, an American scholar, argues that punishment is a way for society to express its anger to the criminal. He says that society

"wants to punish [criminals] in order to pay them back ... By punishing them, we demonstrate that there are laws that bind men across generations as well as across (and within) nations, that we are not simply isolated individuals, each pursuing his selfish interests and connected with others by a mere contract to live and let live."44 Berns' argument is valid. Punishing a criminal does express anger. However, anger and revenge can be two separate things. The example of the judge is again relevant. A judge, an actor of the state, would not be accused of revenge for punishing the criminal (unless he or someone he knew well was the victim). The judge, however, could very well feel anger towards the criminal. The criminal has committed a crime and broken laws that the judge

44 Berns, Walter as cited in Bedau, Hugo, The Death Penalty in America (Oxford University Press, 1982), 334. 21

has sworn to uphold. The judge is angry with the criminal for breaking these laws and causing harm to other individuals. Therefore, the judge could be angry with the criminal, but it certainly does not mean that he is exacting revenge on the criminal. The judge, as in the first example, is condemning the criminal for breaking the law, not because he wanted to exact revenge.

Utilitarians are forward-looking thinkers. They are concerned with what will come out of punishing someone. They are concerned with the greater good of society.

Jeremy Bentham, an English philosopher, is one of the most famous utilitarians. Andrew von Hirsch, a professor of Criminal Justice at Rutgers University, summarized Bentham's theory about punishment: "Punishment is an evil: it brings harm or dissatisfaction to those punished. Therefore, it can be justified only to the extent that it produces, in aggregate, other benefits or satisfactions to a greater degree. Because the principle of utility is wholly consequentialist, punishment cannot be warranted by the ill deserts of those punished."45 Bentham weighs heavily the "[t]he displeasure of the people; that is, of an indefinite number of the members of the same community, in cases where (owing to of the influence of some occasional incident) they happen to conceive, that the offense or the offender ought not to be punished at all, or at least ought not to be punished in the way in question."46 Utilitarianism is heavily focused on what will bring the greatest good to the community.

While all utilitarians believe that the greater good of society is the goal, they are split into two types, act and rule, for further reasons. An act utilitarian "holds that the

45 von Hirsch, Andrew, "Proportionality in the Philosophy of Punishment," Crime and Justice, 16:55-98 (1992), 58. 46 Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, (Oxford University Press, 1823), 177. 22

utilitarian criterion should always be applied directly to individual acts. Thus, always that particular action will be morally right which here and now seems to yield the highest social utility."47 John Harsanyi, a 20th century economist, pointed out some issues with act utilitarianism. In our society, it is considered common sense and moral behavior to keep a promise, however, act utilitarianism seems to suggest that we should always break those promises if it will have a better, even if only slightly better, consequence. Likewise, it is also considered appropriate and moral to refrain from killing another person except in the case of self-defense or a just war. Act utilitarianism seems to imply that it would be

"morally permissible ... to kill one innocent man if this is the only way of preventing the murder of two or more innocent individuals."48 These difficulties have been waved away by many utilitarians with the argument that these moral rule-breakers would have a detrimental effect on society, i.e. people's ability to trust one another or their ability to obey social and moral rules. Harsanyi counters this utilitarian argument in favor of act utilitarianism by stating that

[o]ne act of promise breaking ... or even of murder, will seldom have a significant effect on people's mutual trust in general (though it may very well have a significant effect on people's trust in the person who has actually engaged in promise breaking, ... or in murder). Nor is it likely to have any sizeable effect on the general propensity to obey customary moral rules. Indeed, if these acts are committed in complete secrecy, then all negative effects of this kind will be totally absent; but this does not make secret acts of this kind morally permissible. 49

However, if all people were to adopt this attitude, that they could break social norms and rules for short-term consequences, society would soon forget the value that these norms hold. The long term and indirect consequences of these actions, breaking a promise or killing one innocent person to spare other innocent people, would be catastrophic to

47 Harsanyi, John C, "Rule Utilitarianism and Decision Theory," Erkenntnis 11(1): 25-53 (1977), 30. 48 Harsanyi, John C, 31. 49 Harsanyi, John C, 32. 23

society. People would become distrustful of one another and harmony among men would be strained.

Not all utilitarians believe that act utilitarianism is practical enough to use it as the only form of utilitarianism. The second subset of utilitarianism is rule utilitarianism.

According to rule utilitarianism, the principle of utility is

applied in the first instance, not to each individual act, but rather to the moral rule governing this act ... Thus an individual act should be considered to be morally right if it conforms to the correct moral rule applying to this type of situation - regardless of whether it is the act that will or will not yield the highest possible social utility on this particular occasion. On the other hand, the correct moral rule should be defined as that particular rule of behavior that would yield the highest possible social utility in the long run if it were followed by everybody in this type of situation.50

Harsanyi returns to the example of someone breaking a promise. He suggests that although sometimes it would be beneficial to break a promise and would therefore yield a higher social utility, in the long run it is more beneficial for society if people can be confident that their promises will be kept except on rare occasions. Likewise, innocent people should be confident and secure that they will not be murdered for "the purpose of achieving some very noble objectives." Harsanyi adds an interesting anecdote to this idea: "It is bad enough that many societies cannot ensure reasonable safety from murder by criminals; but at least they should ensure safety from murder by people guided by the highest motives, and acting in the very name of morality."51 Harsanyi's point in this anecdote is that societies are constantly trying to protect their citizens from murderers with the worst, or morally wrong, intentions. Societies should not also have to worry about trying to protect their citizens from murderers who will attest that they were acting under moral guidelines. While act utilitarians can find a reason to break a promise or kill

50 Harsanyi, John C, 32. 51 Harsanyi, John C, 33. 24

an innocent person, rule utilitarians take a step back and evaluate how the broken promise or the murder would affect society in the long run.

Act and rule utilitarians, although differing in their rationales for a particular action, agree that punishment, when meted out, can have a positive effect on the community in the form of deterrence. Utilitarians believe in the idea of deterrence.

Deterrence is the idea that by punishing a person for the crime that they committed, it will deter future or would be criminals from committing the same crime. Bentham believed that we inflict punishment on criminals to deter others from committing similar crimes. Punishment is only warranted and accepted by utilitarians when it produces a good for society, such as deterring future criminals. Utilitarians avoid punishment if it will not produce a good for society. Bentham cites four instances where punishment would not increase utility: "(1) [G]roundless: where there is no mischief for it to prevent; the act not being mischievous upon the whole, (2) [I]nefficacious: where it cannot act so as to prevent the mischief, (3) [U]nprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented, (4) [N]eedless: where the mischief may be prevented, or cease of itself, without it: that is, at a cheaper rate."52

Bentham views punishment as an evil, but if implementing that evil will produce utility for the greater good of society then he does not mind implementing the evil.

Methods like rehabilitation are used instead of punishment where the criminal can be changed, made into a better person. Karl Menninger, a 20th century American psychiatrist, advocated for rehabilitation in the place of punishment. Like some critics of retributivism and the practice of punishment, Menninger believed that the root of

52 Bentham, Jeremy, 170. 25

punishment could be found in anger and vengeance.53 Rehabilitation is used when punishment would be less beneficial and would not produce a good, but the criminal and society can benefit from the criminal being rehabilitated and potentially cured of his moral wrongdoing.

Retributivism and utilitarianism are the two major justifications of the system of punishment. They coexist together in our system because, perhaps, they cannot live without each other. Mark Tunick provides various examples of how the two theories, so different in nature, exist within our system:

Both retributivists and utilitarians offer accounts of why we punish at all (to express condemnation of blameworthy acts and mete out justice; to augment social utility); and both counsel us on what rules should guide us regarding the distribution of punishment within the practice. Sometimes we require mens rea to convict a defendant; many acts are made crimes because society regards these acts as morally wrong; in sentencing we generally try to fit the punishment to the moral gravity of the offense; and we allow for mercy and pardons. Although some of these features of our practice have been given utilitarian rationales, all accord unambiguously only with the retributive principle. But sometimes we hold people accountable to a strict liability standard; we punish acts that are clearly not morally culpable (such as unknowingly selling adulterated food); and in determining a criminal's sentence we sometimes take into account the threat of future harm posed by the criminal, regardless of the moral gravity of the offense of which he has been convicted. These features of our practice accord only with the utilitarian principle.54

Tunick points out that often times our practices are comprised of both utilitarian and retributive principles. It is not always clear cut as to exactly which principle should prevail. The felony-murder rule is a perfect example of how the two competing theories coexist within one law. The rule states that if a murder is committed during the commission of a felony, all of those involved with the felony will be charged with murder. The utilitarian theory accounts for why the accomplices, as well as the gunman,

53 Tunick, Mark, 37. "Menninger argues that punishment has its origin in the primitive urge for vengeance and that it functions as an outlet for this urge. Legal punishment is a modern institutional cloak for an instinct Menninger thinks we ought to silence." 54 Tunick, Mark, 175.

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are being charged with murder. It does a greater good for society for all of those involved to be punished than for only the gunman to be punished. Society may experience fear, anxiety, or a lack of trust in the state if the accomplices are given a lighter sentence, return to their criminal ways, and possibly commit murder. A person would want all the people involved in the crime punished to regain a sense of security and regain their trust in the state. People may feel that the state should protect their people and therefore should punish all criminals. Utilitarians would justify punishing all of those involved in the commission of the crime because they were involved in mischief. However, utilitarians would not justify punishing someone like Ryan Holle, who was not actively involved in the commission of the felony or the death. Utilitarians grade a person's blameworthiness based on the mischief that they created. Those involved in the commission of the felony - the getaway driver, the lookout, the accomplice, and the triggerman - can be held blameworthy for creating mischief and whatever may result from it. Someone like Ryan

Holle, on the other hand, was not involved in creating the mischief and therefore is not deserving of punishment.

However, while the felony-murder rule can be justified through the utilitarian theory, that is not the theory I am defending and intend to use to strike down the felony- murder rule. Retributivists believe that if a wrong has been committed, punishment must be served for the moral wrongdoing to be corrected. Retributive principles adhere to the notion of proportionality. While retributivists would also suggest that all those involved in the commission of the felony should be punished, they would argue that each person should only be held culpable for what they did and then punished accordingly. For a retributivist, Ryan Holle would not have been held equally culpable for the murder, but

27

much less culpable because he played a minimal part in the crime. Retributivism adheres

(as much as possible) to the proportionality principle. It refers to the idea that crimes and punishments are each ranked and then matched up - less severe crime with less severe punishment and more severe crime with more severe punishment. In the case of the felony-murder rule, the person who was an accomplice to the crime should not be held as culpable as the person who pulled the trigger and shot another person. For example: Matt and Alex agree to rob a grocery store. Matt is under the impression that they will take the money and run, but Alex does not want to leave behind any one who can potentially identify them. Alex does not tell Matt of his intentions. The night of the robbery, Matt has already fled the store with money in hand and does not realize that Alex stayed behind to shoot the cashier. Matt and Alex are caught the next day. Under the felony- murder rule, both would be charged with murder because they both participated in the felony.

Under the retributivist theory, both are deserving of some punishment. They both actively committed a wrong and punishment is needed to right that wrong. However, the culpability factor attributed to each individual is severely different. Matt made the decision to participate in the robbery, but had never thought of shooting the cashier and had no knowledge that Alex planned to shoot the cashier. Alex made the conscious decision to participate in the robbery and shoot the cashier. Alex is more morally culpable that Matt. The proportionality principle would dictate that Alex and Matt would receive the same punishment for robbing the store, but that Alex would receive additional punishment for shooting the cashier.

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The felony-murder rule ignores the proportionality principle and instead is seemingly more utilitarian in this way. The rule seeks to punish all, even if they are not all at the same level of culpability, for the good of society. A retributive twist to the felony-murder rule would have the rule abide by proportional punishment and investigate the facts of each case to determine exactly how responsible and culpable each person was during the commission of the felony. The felony-murder rule must be reformed to include the principle of proportionality and degrees of culpability.

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Chapter III: Causation and Culpability: Who is Truly at Fault?

The felony-murder rule holds all of those involved in the commission of a felony equally responsible if a death occurs during the felony. The rule does not distinguish the person who pulled the trigger from the person who was acting as a lookout with no knowledge of what was going on. The rule treats each person equally. The retributivist theory of punishment requires that a criminal be held responsible only for what they are culpable. Retributivists abide by the proportionality principle - the idea that the punishment must be proportional to the crime. The felony-murder rule undermines the idea of proportional punishment by making each person involved in the felony equally culpable for the death. The rule assigns moral responsibility and culpability to individuals unworthy of that assignment.

A study done by Thomas R. Shultz, Kevin Wright, and Michael Schleifer showed that children as young as 5 and 7 years old, like adults, evaluated "issues of moral responsibility [blameworthiness] and/or punishment for a [person] known to have caused harm but not of the [person] known not to have caused harm ... More responsibility was assigned for intentional than for negligent harm than for purely accidental harm."55 The authors observed five to eleven year olds and their reactions to various scenarios and then compared their reactions to those of adults. Their theory posits that there are two crucial steps to take into account when we are determining whether a person caused the [result] and then whether that person is morally responsible and therefore punishable. The first step is to determine whether the actions of that particular actor caused the [result]. If it can be determined that a person's actions did not cause the [result], that person is then

55 Schleifer, Michael, Shultz, Thomas, & Wright, Kevin, "Assignment of Moral Responsibility and Punishment," Child Development, 57(1):177-184 (1986), 183. 30

free from blame and moral responsibility. However, if it can be determined that the person did cause the [result], then the process moves on to determining how responsible and blameworthy the person can be held to be. The next step asks: was the person purposeful or negligent in the action that caused the [result]? If the person was neither purposeful nor negligent, the process stops and the person is not held accountable and therefore not punished. If it is proved that the person was indeed purposeful or negligent, the person is found blameworthy and the process of the study moves on to determine the punishment of the individual. If a person can make full restitution, or compensation for injury or loss, they are excused from punishment. If a person cannot make full restitution then they are punished.

There are a few problems with this theory. First, the authors do not explain exactly how they decide who caused the result. A but-for cause could be used, but by using this cause it could make almost anyone responsible for the result. For example, but- for A's parents deciding to give birth to A, the crime would not have happened. A proximate cause could also be used. Proximate cause would say that the person who was closest or most proximate to the result would be responsible. Although this seems like a justifiable method, this cause could also be used in a strict liability situation - when a person is found culpable because of his or her actions, regardless of his or her culpability or mens rea. Proximate cause can be useful when determining a person's blameworthiness, but it should not be the only thing used when evaluating a situation.

The authors should use an importance cause. This cause would determine how important or essential a certain person was to committing the crime and then base their responsibility on how essential that person was to the crime. For example, the getaway

31

driver would not be rated as essential to the crime as the triggerman. The getaway driver was not particularly essential to the crime, but the triggerman was the most essential to the crime and thus should be the most responsible. Arthur Leavens, an American scholar, suggests that we evaluate what the situation was "at rest" and then decide what disturbed the previously at rest conditions to produce the result.56 Using the same example, the getaway driver did not disturb the at rest situation. The triggerman, by shooting at the store owner, disturbed the situation and caused the unrest.

The differences in these approaches to deciding who causes a result are more easily explained through examples. Let's say that A decides to lend his car to B. In the first situation, B is extremely careful while driving A's car. B is stopped at a red light, and when the light turns to green, he hits the gas. As he is crossing the intersection, C decides to make a left turn from the other side of the road even though his signal is now red. C's car hits the driver's side of B's car. C has caused harm. B suffered a broken arm and A's car is now totaled. The situation must now be evaluated in order to decide who was morally responsible and culpable. Although B was driving the car at the time of the accident, which was a necessary action for the harm to happen, he had the green light and the right of way. It can be determined that his actions - responding to the green light signal by hitting the gas to get his car to move - were not illegal or negligent. According to the theory, he is deemed not morally responsible and is not punished. However, C was also part of causing the harm. C's decision to make a left turn even though his signal was red can be seen as negligent. Schleifer, Shultz, and Wright's theory suggests that C is morally blameworthy and punishable. C's decision to make the left turn is what led to the

56 Leavens, Arthur, "A Causation Approach to Criminal Omissions," California Law Review 76(3): 547- 591 (1988). 32

harm. C now has two options. He can either make restitution (i.e. pay for B's hospital bill and the damages to A's car) or be punished. C caused a significant amount of harm and therefore was found blameworthy and will either have to make restitution or will be punished. B, even though he was involved in the accident, was not blameworthy and therefore will not have to make restitution or be punished.

In the United States, a model similar to the theory above is used. A person's culpability and the extent of the harm that they caused are considered before a person can be labeled blameworthy and punished. We punish based on the person's mens rea, or state of mind, at the time of the crime. The criminal act has to be accompanied by a guilty mind for the punishment to truly be just. A person who does not understand that what they are doing is wrong does not possess the mens rea that is needed to prosecute them and,

[T]o punish conduct without reference to the actor's state of mind is both inefficacious and unjust. It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventive or a retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.57

The person's mens rea dictates which degree of culpability they fall into. The more aware that the person was that their actions could cause harm, the more culpable they will be found.

A person can be held culpable by acting in one of four different ways: negligently, recklessly, knowingly, and purposefully. These degrees of culpability range

57 Packer, Herbert L, "Mens Rea and the Supreme Court," Supreme Court Review 107-152 (1962) 107. 33

from the lesser degree of culpability (negligently) to the highest degree of culpability

(purposefully).

(1) Negligently - A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

Negligence arises from carelessness and can have many forms: a nurse forgetting to give her patients their medication, a mother forgetting to go to the grocery store and not having enough for her child to eat, and a spill on the floor that no one cleans up.

Negligence is the least culpable degree because it lacks awareness that their action will produce a result or a harm. The other three degrees, recklessly, knowingly, and purposefully, all involve a certain amount of awareness that their actions will produce a result. Negligence, however, involves a person who does not take the same amount of care in a situation as a reasonable person would.

(2) Recklessly - A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material elements exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

Recklessness involves a higher degree of culpability than negligence. It is the first degree of culpability that involves a sense of awareness that the action caused by the person could possibly produce harm. Examples of recklessness include driving at a very high speed during rush hour or swinging a bat while standing amongst a group of people.

These actions are not certainly going to produce harm, but it is likely that these actions could cause harm.

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The next two degrees of culpability, knowingly and purposely, involve a willful action that is almost certain, or completely certain, to produce a result.

(3) Knowingly - A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. (4) Purposely - A person acts purposefully with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.58

The words are similar, but the difference is "the presence or absence of a positive desire to cause the result; purpose requires a culpability beyond the knowledge of a result's near certainty."59 An example of the contrast between knowing and purpose would be an antiwar activist who decides to bomb a draft board office while the night watchman is on duty. Activist A plants the bomb, but does not check if the night watchman is in the office. The night watchman could be in the office, but he could also be on his coffee break or patrolling the grounds. Activist A is fairly certain that the bomb could kill the night watchman, but since she does not know where he is, she cannot be completely certain. Activist B waits for the night watchman to return from his coffee break and then sets off the bomb. By waiting for the night watchman to return from his break and then setting off the bomb, activist B is ensuring that she will kill the night watchman.60

Degrees of culpability work to assure that the higher degrees of culpability, purposeful and knowing, receive more punishment than the lesser degrees, recklessness and negligence. We punish those who are merely negligent less severely than those who

58 Kaplan, John and Weisberg, Robert, Criminal Law: Cases and Materials, (Boston: Little Brown and Company, 1991), 131 - 32. 59 Kaplan and Weisberg, 135. 60 Dubber, Markus and Heller, Jon, The Handbook of Comparative Criminal Law, (Stanford: Stanford University Press, 2011), 574. 35

commit crimes recklessness, knowingly, or purposely. This is due to the fact that, as a society, we "recognize that negligence represents a lower level of culpability, qualitatively different from recklessness because the negligent actor fails to recognize, rather than consciously disregards, a risk."61

The felony-murder rule makes each person involved in the crime equally as culpable as the person who actually committed the murder, from the getaway driver to the lookout to the accomplice to the person who actually pulls the trigger or strikes the fatal blow. Each of these persons is held to the highest degree of culpability because of the felony-murder rule. I argue that the felony-murder rule unjustly punishes and stigmatizes those involved in the felony that did not commit the murder. Each person involved in the commission of a felony when a murder occurs should be evaluated based upon their actions, and their actions alone. Their punishment should only reflect their personal actions and their mental state at the time of the crime. Let us consider a few scenarios and see how the felony-murder rule would affect the outcome and punishment of the individuals involved.

In scenario one, Miguel, Austin, and Cory, who is carrying a gun, plan to rob a bank. Miguel is the lookout. He stands at the entrance to the bank and helps distract the security officer. Austin and Cory sneak into the back of the bank and find the room with the safety deposit boxes. They drill into a few boxes and take the loot. As they are about to leave the back room, a bank employee walks into the room. Cory pulls out the gun and shoots the employee in the head; the employee dies minutes later. Now, under the felony- murder rule, all three would be found equally as culpable of murder because all of them participated in the felony. However, Miguel had no idea what was going on in the back

61 Kaplan and Weisberg, 137. 36

room. Austin was in the back room with Cory, but had no time to try and stop Cory from pulling the trigger. It is unjust for Miguel and Austin to be found just as culpable for the murder as Cory. They are culpable for the robbery because they actively participated in the robbery, but the culpability for the murder lies with Cory. He took the gun out and pulled the trigger. If degrees of culpability were used, all three men would be charged with purposefully trying to rob the bank. They all participated in the carrying out and robbing of the bank. With respect to the murder, Austin and Cory should only be charged with reckless behavior. They knew that Cory was carrying a gun, but did not think that

Cory would shoot someone and kill them. Cory, however, should be charged with murder. He pulled the trigger and killed the bank employee. By using the proximate cause and importance cause, it can further be determined that the most proximate and essential part of the crime was Cory. He carried a gun with him into the bank and shot the bank employee. Miguel and Austin were essential parts of the felony, but they were not essential for the murder. Their actions did not further or hinder Cory pulling out his gun and shooting the bank employee.

Scenario two involves Chris and Kirk. They recently partook in a drug deal that went sour. To get back at the dealer, they decide to go to his house and steal some of his drugs. In the course of the burglary, the drug dealer returns home. Chris and Kirk assault the drug dealer. Kirk pins the dealer’s arms and legs to the floor while Chris beats the dealer with the butt end of a rifle found in the house. Chris strikes the fatal blow. Under the felony-murder rule, Chris and Kirk would be held equally culpable. They both participated in the burglary, but only Chris struck the fatal blow. Kirk participated in the burglary as well, but also pinned the drug dealer to the ground so that Chris could strike

37

him. Kirk actively made the decision to hold the dealer down and not let him go until

Chris was done with the beating. Here, Kirk is only slightly less culpable than Chris.

While Chris dealt the fatal blow, Kirk did nothing to stop Chris. This makes him culpable by knowing that Chris's blows could kill the man, but doing nothing to stop him. Again, by using proximate cause and importance cause, it can be determined that the crucial element of the murder here was both men. Although Chris was the person beating the drug dealer, he could not have pinned him down effectively and hit him with the shotgun without Kirk's help. With degrees of culpability applied to the situation, the culpability of the two men can be determined. Kirk would have been charged with knowing behavior because he actively participated in beating up the drug dealer. Kirk pinned the man down, but did not know for certain whether Chris' actions would kill the drug dealer. Chris, however, should be charged with purposeful behavior. He continued to strike the drug dealer again and again until he finally struck the fatal blow.

In scenario three we revisit Chris and Kirk. The scene plays the same way. Chris and Kirk plan on burglarizing the drug dealer's house and the drug dealer surprises them by showing up at the house. Chris and Kirk assault the man. Kirk pins him down, but this time after only a few blows Kirk gets nervous and tells Chris to stop. He tells him that he was fine with the burglary, but that he did not want to kill anyone. Chris swings the rifle at Kirk and knocks him unconscious. When Kirk wakes up, he discovers that Chris has fled the scene and the drug dealer is dead. This scenario shows Kirk participating in the burglary but then attempting to stop Chris from killing the drug dealer. Again, under the felony-murder rule, Kirk would be found equally as culpable as Chris because he had participated in the burglary. In this instance, it would be unjust to blame and punish Kirk

38

for Chris's actions when Kirk tried to stop the violence. Kirk should only be culpable for the burglary and the initial harm done to the drug dealer, but not for the murder. If Kirk were to be punished according to his culpability, he should be charged with reckless behavior. Kirk participated in the burglary and the initial beating, but let up after he realized that Chris was intending to kill the drug dealer. He should not be held culpable for not trying to do more to stop the beating because Chris knocked him unconscious. If

Kirk had not been knocked unconscious and had failed to intervene or call the police, then he could possibly be held culpable for not doing more. In a different scenario, if

Kirk had been a bystander and had seen what was happening in the house and did not call the police, he might only be charged with negligent behavior since he saw what was happening but did nothing to stop it.

How far does the felony-murder rule stretch? It finds all those involved in the crime equally culpable, but what about those who find themselves in the middle of the crime but have no real involvement? For example, Ryan Holle, drunk and dazed after a night of partying, lent his car to a friend one night. He had heard the friend talking about going to someone's house and possibly taking someone out, but did not take it seriously and was not in his right mind due to the alcohol in his system.62 The friend ended up at a drug dealer's house and killed the drug dealer's daughter. Holle was implicated in the crime and found guilty under the felony-murder rule. The prosecutor stated that without

Holle lending his car to his friend, there would have been no crime; "no car, no crime."63

But how far does this reasoning extend, or how far should it extend? Ryan was used as a

62 Although a critic may argue that Ryan Holle is responsible for the alcohol in his system, by using proximate cause and importance cause, it can be argued that regardless of the alcohol, Ryan Holle was not a crucial or proximate cause to the murder. He was exploited as a but-for cause. Although he is culpable for being negligent and not intervening or calling the police, he should not be held culpable for the murder. 63 Liptak, Adam, "Serving Life for Providing Car to Killers," New York Times, (2007). 39

but-for cause. But for Ryan lending his car to his friend, the crime would have never happened. The use of a but-for cause is very problematic. For example, it could also be said that but-for Ryan's parents deciding to have a child, Ryan would have never been born and thus could not have lent his car to his friends to commit the crime and so on.

Ryan should only have been charged with reckless behavior. He had heard of what might go on later that night, but did nothing to stop his friends. Applying the importance cause to this situation, Ryan was not an important or essential part of the crime or the ensuing murder. The men, instead of borrowing Ryan's car, could have hired a taxi, used someone else's car, or walked to their destination. Ryan played a minimal and insignificant role in the crime that night. To truly get a grasp on how far the felony-murder rule can extend, let us look at a few scenarios similar to that of Ryan Holle but with varying differences.

Ryan's friends needed a car to get to the drug dealer's house. Unfortunately, he was out of town visiting family and had taken his car. They instead call a taxi. While in the taxi, the friends discuss their plan and what they are going to do once they get to the house. The taxi driver overhears them, but does not say a word. He drops the friends off at the house and leaves, never saying a word to anyone. Like Ryan Holle, the taxi driver knew bits and pieces of what might happen. However, he did not participate in the commission of the felony or the murder. The felony-murder rule could potentially extend to the taxi driver, similar to Ryan Holle's case. No taxi, no crime - or so the decision might say. As discussed before, Leavens believes that people feel a duty to intervene to keep the peace and preserve the status quo. Not intervening to prevent a harm or result is seen as perpetuating the crime. There is an underlying sense of obligation to help others, or at least make the call to the police so that the crime can be stopped before it goes too

40

far. The felony-murder rule is far reaching and could have damaging consequences to even those that are removed from the felony. Although the taxi driver in this situation should have reported these men to the police, he is culpable for knowing that a crime could potentially be taking place and not taking action to stop it. He should not be found culpable for the murder or the burglary as the felony-murder rule might find him, but only for not reporting the crime.64

In a slightly different version, the friends do not talk about their plan in the taxi.

They are silent the entire way. The taxi driver again drops them off at the house and leaves. Should the taxi driver be held culpable? Any reasonable person would agree that the taxi driver should not be held culpable, even though he may have been a but-for cause. The taxi driver in this scenario was not negligent. He knew nothing of the crime and was dropping the men off at the house because it was his job to do so. Ryan Holle, unlike the taxi driver, knew of what might happen that night. He was negligent because he failed to stop his friends or report them to the police.

The felony-murder rule, and the cases in which it has been used (i.e Ryan Holle for this example), sets a far-reaching precedent. A person should only be punished for their actions and their actions alone. They cannot control the actions of another and can only control their own. In the case of the taxi driver who does not overhear the men talking about the crime, he has no power to change the situation or take action to stop the crime so he is not culpable. However, the taxi driver who overheard the conversation or

Ryan Holle, who knew what might happen, had the power to intervene and potentially

64 Some states criminalize failure to report a crime. For example, Ohio has statute 2921.22 - Failure to report a crime or knowledge of a death or burn injury. The statute states that "no person, knowing that a felony has been or is being committed, shall knowingly fail to report such information to law enforcement authorities." http://codes.ohio.gov/orc/2921.22 41

stop the crime and the murder from happening. One might wonder why a taxi driver, who has no connection to these men, would involve himself in a potential crime when a friend, Ryan Holle, did not even intervene to stop his friends. Arthur Leavens states that,

"Once we realize that a particular undesirable state of affairs can be avoided by taking certain precautions, we usually incorporate these precautions into what we see as the normal or at rest state of affairs. A failure to engage in the preventive conduct in these cases can thus be seen as in intervention that disturbs the status quo."65 Both men, the taxi driver and Ryan Holle, do not have to take action, but out of a moral duty to protect others and the society we live in, these men, or someone in their position, may be obligated to call the police or attempt to stop the crime himself.

The felony-murder rule makes each person, sometimes even the most far removed person, like Ryan Holle or the taxi driver, equally as culpable as the person who committed the murder during the commission of the felony. This method is outdated and unjust. Instead of punishing someone based on their actions and mental state during the crime, they are being punished for someone else's actions and mental state, something that was completely out of their control. The idea of just deserts and degrees of culpability are diminished as the person who lent his car or the lookout or the any other person involved in the crime that did not commit the murder is now charged with murder under the felony-murder rule. Each person should only be evaluated based on what he or she physically did, actively participated in, and had the mental capacity to understand.

65 Leavens, Arthur, 573. 42

Chapter IV: The Deterrence Effect The most cited defense of the felony-murder rule is deterrence. Scholars argue that deterrence serves a very important purpose in society. If society punishes a criminal for his crime, it will deter, or discourage, would-be criminals from committing that crime because they now know the punishment for that crime. Utilitarians justify punishment on the basis of deterrence. Although they are against punishment, they believe that it is justifiable if some good (deterrence) can be achieved through evil (punishment). Several studies have assessed the effects and usefulness of the felony-murder rule as well as society's reaction to the punishment that the felony-murder rule inflicts upon accomplices. In this chapter, I will draw on these studies in arguing that the felony- murder rule is ineffective and out of step with society's morals.

Anup Malani, an associate professor of law at the University of Virginia, conducted a study to assess the felony-murder rule and its effects. He evaluated data from the states that employ the felony-murder rule and specifically studied its use with respect to five felonies: rapes, burglaries, larcenies, robberies, and auto thefts. Malani considered both sides of the felony-murder argument before he presented his data. He stated that advocates of the felony-murder rule claim three validations for the rule: (1) the rule makes felons take greater care to avoid accidental deaths when committing felonies, possibly by using less deadly weapons or planning the crimes better, (2) encourages felons to adjust the level of their overall criminal activity and thus reduce the amount of crimes they commit, (3) deters criminals from intentional killings by punishing even accidental killings.66 Malani goes on to say that opponents of the rule claim that the rule

66 Malani, Anup, "Does the Felony-Murder Rule Deter? Evidence from FBI Crime Data," New York Times, (2007), 5. http://graphics8.nytimes.com/packages/pdf/national/malani.pdf 43

does not reduce crime rates. In fact, it may actually increase crime rates. "The punishment for homicide ordinarily rises as the criminal’s mental state moves from negligence to specific intent. The felony-murder rule eliminates such grading for deaths during felonies. Thus the rule diminishes marginal deterrence against reckless or intentional killing after the incidence of accidental death during a felony."67 The intentional second killing would only increase the robber's murder sentence from one to two life sentences. However, without the felony-murder rule, the robber would be much less likely to intentionally kill because if he did kill, he would now be charged with murder in addition to robbery.68 Opponents of the rule also claim that criminals are not always rational. A crime scene cannot be easily controlled and the criminal could lose focus and begin to act irrationally. However, even if criminals are rational, crime scenes are often chaotic and criminals would not be able to do much to prevent an accidental death. The felony-murder rule also does not substantially increase the penalty for killing during a felony. "Without the rule, the state can probably prove that a felon was reckless and therefore guilty of murder. The number of cases where the criminal is not liable for murder without the felony-murder rule is so small that the rule may not deter many accidental homicides."69

The approach that Malani uses to evaluate the felony-murder rule goes beyond previous scholarship on the subject. His research does not simply estimate the overall effect of the felony-murder rule, but it determines the chain of causation that leads to the final result. Malani contends that prior research on the subject has only noted that incidents of death during a felony are very low. "The drafters of the Model Penal Code

67 Malani, Anup, 6. 68 Malani, Anup, 6. 69 Malani, Anup, 6. 44

observed, for example, that deaths occur in less than 0.5 percent of all robberies."70

Malani suggests that the issue is not whether the probability of deaths during a felony is low. He gives the example of dying during an airplane flight. The probability of death during an airplane flight is low, but no one suggests we do away with airplane safety laws. The issue is whether deaths occur excessively in connection with other felonies.

Data on robberies from 1973-1998 showed that the probability of death during a robbery was over 49 times greater than the probability of homicide without a robbery. Malani argues that this statistic is crucial to evaluating the felony-murder rule. He suggests that the issue with the felony-murder rule is not whether deaths happen often, but whether they happen excessively in connection to felonies. This could be one of the reasons that the felony-murder rule has been kept in the legislature - that deaths were happening too often in connection with felonies. Studies have also found that the number of felony deaths compared to the number of felonies is small. However, when the number of felony deaths is compared to the overall number of murders and non-negligent manslaughters it is large. "Between 1970 and 1998, there were on average 19,921 murders and non- negligent homicides annually. Each year nearly 19 percent of these, or 3812, occurred during crimes confirmed to be felonies."71 These statistics suggest that a large portion, nearly 20 percent, of murders and non-negligent homicides happened during a felony and were processed under the felony-murder rule. The felony-murder rule does not provide any room for interpretation or allow for the specific facts of each case to be heard. Some of these murders could have been accidental, but the rule does not provide for exceptions.

The number of murders processed under the felony-murder rule perhaps could have

70 Malani, Anup, 7. 71 Malani, Anup, 7. 45

possibly been a lot less if the felony-murder rule was abolished. Accomplices and others implicated because of the felony-murder rule and charged with murder might have instead only been charged with manslaughter or negligent homicide, thus decreasing the number of murders. If degrees of culpability were established in these cases, the charges could have been brought down to manslaughter or negligent homicide.

Malani's basic approach to evaluating the felony-murder rule is to break down the total number of deaths that occurred during a certain type felony, simplify it into parts

(death, no death, deadly weapon used, etc), and then to assess the effect that the felony- murder rule has on each felony. "Such an analysis would not only enable one to test the specific predictions by proponents and opponents of the rule, but would also shed light on criminal behavior in a manner that may be useful for predicting the effects of other criminal sanctions."72 Malani breaks down felonies for each state into seven categories: number of total felonies committed (F), total felony deaths (D), felonies resulting in death

(FD) (not processed under the felony-murder rule), felonies not resulting in death (FND), felony deaths due to gunshot (DG), share of felonies with death (FD/F) (percentage of felonies with death), and additional deaths per felony with first death (D/FD).73 He then uses regression analysis of each of these seven categories to assess the impact that the felony-murder rule has on felony murders.

Malani draws two conclusions from his research. First, he asserts that the felony- murder rule does not significantly reduce crime rates. The rule actually seems to increase the number of felony deaths in a state. Malani suggests that if a state is keeping the rule to reduce crime, it should rethink the policy. Reducing the rate of some felonies could be

72 Malani, Anup, 8. 73 Malani, Anup, 18. 46

accomplished not by continuing to implement the felony-murder rule, but by increasing the penalty for the specific felony. Second, the felony-murder rule may have varying effects on different felonies. "It increases robbery crime rates and reduces burglary, auto theft, and larceny crime rates. The varied impacts of the rule suggest ... that penalties should be more narrowly targeted to specific classes of criminal activity."74 The felony- murder rule, although effective at reducing the crime rates of burglary, auto theft, and larceny, increases the crime rate of robbery. Malani's research indicates that states that punish felony-murder as first degree murder experienced an eight percent decrease in victims per burglary-homicide incident, nine percent fewer auto thefts, and twenty-one percent lower share of larcenies that result in death.75 However, "[s]tates that punish felony murder as murder one appear to have a 17 percent higher share of felonies that end in death than states that do not punish felony murder as murder one. Comparing states that punish felony death as murder one or two with the rest ... the share of robberies that result in death (FD/F) and even the number of robberies without death (FND) are higher, by 31 and 12 percent (0.27 and 0.11), respectively."76 The rule, if it is to be used for a wide variety of felonies, should have decreased all crime rates, and not just some. A reduction in the rate of all crimes can be achieved by targeting the penalties more narrowly to each crime. Felons may find it less appealing to commit the crime if they know the specific penalty for that crime. This data is also important because robbery

(about 220 per 100 thousand population) is one of the most common circumstances for

74 Malani, Anup, 25. 75 Malani, Anup, 19-20. 76 Malani, Anup, 18-19. Malani's data for the share of robberies that result in death is significant at the 95 percent confidence level, while his data for the number of robberies without death is significant at the 85 percent confidence level. 47

felony-murder (0.74 per 100 thousand population).77 Malani admits that the increase in robbery rates is “hard to explain” and “warrants further exploration," but if the goal of the felony-murder rule is to reduce felony-murder and crime, then the increase in robbery rates only serves to prove that the felony-murder rule is ineffective at reducing even the most common of crimes.78

However, Malani's data is not without faults. His research relied heavily on data from the Federal Bureau of Investigation's (FBI) Uniform Crime Reports (UCR) and

Supplemental Homicide Reports (SHR). These reports suffer from underreporting and missing data that police officials did not send in to the FBI.79 Malani also only focuses on five felonies. There are other felonies that often end in murder, such as drug crimes, that

Malani addresses, but does not assess. Malani stresses the need for more empirical analysis, in addition to his own, of the felony-murder rule instead of "blind theorizing about the likely consequences of criminal rules."80 His research has shown promising data that the felony-murder rule is not an effective tool at preventing crime and, in some instances, increases the crime rate, but a more thorough study must be done to prove that the felony-murder rule is completely ineffective.

In another study involving the felony-murder rule, Nuno Garoupa and Jonathan

Klick, professors of law at the University of Illinois - Urbana-Champaign and the

University of Pennsylvania respectively, sought to find a reason why the felony-murder rule is still in place and defend the rule using their own theory of "differential victimization." The theory asserts that "some individuals, specifically relatively more

77 Malani, Anup, 12. 78 Malani, Anup, 23. 79 Malani, Anup, 26. 80 Malani, Anup, 12. 48

vulnerable individuals, represent more attractive victims for the perpetrator of a crime.

Because the expected probability of success is higher when a perpetrator targets a relatively more vulnerable victim, more vulnerable individuals will be systematically over-exploited in the absence of the felony murder rule."81 Their thesis rests on the assertion that criminals more often target seemingly weaker individuals than seemingly stronger individuals. For example, if a criminal was planning to rob someone and saw an older woman and a younger man walking down the street, Garoupa and Klick assert that the robber would choose the older woman because she represents an easier target. They hypothesize that by evaluating the victimization and harm caused to the individual by the criminal and the loss that the victim suffers which is not a gain to the criminal (i.e. feeling of safety and security), Garoupa and Klick can determine what the fine for the robber should be. Garoupa and Klick conclude that "the differences in fines [for each crime] should depend on the differential in the likelihood of suffering harm (beyond the net transfer that takes place between the criminal and the victim) between the two victim types [weak and strong], as well as the social harm itself."82 However, Garoupa and

Klick's conclusion could not be practically implemented. The Equal Protection Clause in

Fourteenth Amendment to the United States Constitution "make it problematic or even unlawful to condition penalties on some characteristics that may be proxies for fragility."83 This amendment would make it unconstitutional for different penalties to be allotted to each person based on their perceived strengths or weaknesses. For example, it would be unconstitutional to make the penalty for robbing a white man higher than the

81 Garoupa and Klick, "Differential Victimization: Efficiency and Fairness Justifications for the Felony Murder Rule," Review of Law and Economics 4(1): 407-418 (2008), 408. 82 Garoupa and Klick, 413. 83 Garoupa and Klick, 414. 49

penalty for robbing a black man merely because black men were thought to be more physically fit.

Garoupa and Klick believe that the felony-murder rule could be justified by using their differential victimization theory. They argue that because it makes every person equal in the eyes of the criminal, it protects the weakest and most exploited type of victims. The rule makes the penalty very high for a death that occurs during the commission of a felony and it recognizes the high social cost of the victim's death whether they are frail or not.84 But the effect of the rule is that it will protect those who are seemingly weak. "As long as this proportionality [their evaluation] holds such that individuals who are more easily victimized are also more likely to die during the underlying felony, the felony murder rule satisfies these two attractive normative criteria: efficiency and equal protection." Garoupa and Klick's conclusion rests on a hypothesis, but not any actual data. While Malani's research provided statistics and FBI crime data,

Garoupa and Klick hypothesize throughout their argument for the felony-murder rule.

Overall, Garoupa and Klick agree with Malani. They state that "with respect to the general deterrence argument, recent econometric work by Malani finds in state level panel data that the adoption of the felony murder rule leads to a relatively small decrease in both felony murders and [some] underlying felonies. Secondly, the effect is not robust across crime categories and, for most crime outcomes, the effect is not statistically significant."85 Garoupa and Klick also point out that experimental evidence has suggested that individuals believe that the felony-murder rule punished too severely. Equal punishments for those who murder with intent and those convicted under the felony-

84 Garoupa and Klick, 416. 85 Garoupa and Klick, 410. 50

murder rule seem divorced from what the "psychological or philosophical rationale would seemingly demand."86 Garoupa and Klick sought to find another argument to justify the felony-murder rule. Although they came up with the differential victimization theory, ultimately they believe that it is not enough to sustain the rule in state legislatures.

The experimental evidence discussed by Garoupa and Klick is a study conducted by Paul Robinson and John Darly, professor of law at Northwestern University and professor of Psychology at Princeton University respectively. The study by Robinson and

Darly had individuals assign baseline liability for standard murder, manslaughter, and negligent homicide. After baseline liability is established, Robinson and Darly gave the individuals scenarios in which the felony-murder rule would be triggered. The first scenarios all had the same basic premise: two men plan to rob a liquor store, carrying guns. One or both plan to shoot the cashier, or one or both do not plan to shoot the cashier.87 The individuals, on average, gave the perpetrator (the one who pulled the trigger) a higher sentence than the accomplice. Likewise, a higher sentence was also given if the scenario involved the perpetrator planning to shoot the cashier versus not planning to do so.88 The study concluded that, based on the individual's responses to the scenarios, "the current doctrine goes too far, for it punished a negligent killing as if it were murder, although the subjects would prefer to punish it as manslaughter."89 When grading accomplice liability, the individuals "impose liability somewhat less than they would for manslaughter. The lesser liability of the accomplice is significant. It reflects the view of the subjects, manifested in several studies, that the accomplice generally

86 Garoupa and Klick, 410. 87 Robinson, Paul and Darly, John, Justice, Liability, and Blame: Community Views and the Criminal Law. (Boulder, CO: Westview Press, 1995), 174. 88 Robinson and Darly, 174-175. 89 Robinson and Darly,180. 51

deserves less liability than the perpetrator, all other things being equal."90 The only factor that Robinson and Darly do not address is exactly who the individuals were that participated in their study. If it could be shown that a diverse demographic of Americans were opposed to the felony-murder rule, perhaps more could be done to abolish it throughout the entire United States. However, their study does reflect that individuals do not condone the felony-murder rule as it currently stands. The punishment is too harsh for perpetrators and accomplices alike.

Norman J. Finkel, professor of psychology at Georgetown University, also tested community sentiment about the felony-murder rule. Separated into two groups, college age and adults over 25 years of age, participants were given four scenarios. Each scenario involved the same four men, A (getaway driver), B (lookout), C (sidekick) and D

(triggerman), and began in the same way. The only difference to each scenario was the death that resulted from the commission of the felony. The four men were planning to commit a robbery. They walked into the store and only saw the elderly clerk by the cash register. D pulled a gun on the clerk while C stood next to D. D threatened to kill the clerk if the clerk did not hand over the money in the cash register. The clerk opened the register and D snatched the money. Unbeknownst to D and C, a stock boy was in the back and had quietly called the police. After this point in the story is where the four scenarios differ. In the first scenario, entitled "Heart," after D grabbed the money, the clerk clutched his chest and fell to the ground. He died of a heart attack. In the second scenario, entitled "Accident," the clerk grabbed for the gun and in the ensuing scuffle between the clerk and D, the clerk was shot and died later from the wound. In the third scenario, entitled "Heinous," the clerk tried to grab for the gun. After D wrestled the gun

90 Robinson and Darly, 180. 52

back, he smashed the gun again and again into the clerk's face. The clerk fell to the floor and D then fired his gun and shot six bullets into the body of the clerk. The clerk died from the bullet wounds. In the fourth scenario, entitled "Premed," C told D that they should go after D had grabbed the money, but D said to C, "no, I've been waiting to nail this old guy for two years, and I'm not leaving any witness around." D shot the clerk six times. The clerk died from the bullet wounds.91

Participants were given possible sentences for each scenario, including a severe punishment based on a felony-murder rule. Additionally, participants were asked to play the part of a Supreme Court Justice. They were given a booklet and told that defendants

A, B, C, and D were found guilty and charged with the crime of felony-murder and sentenced to death. Participants were told that they must reach a "let stand" or "reverse and remand" decision for each defendant (all terms were defined). Finkel's conclusion, after reviewing the decisions of his participants, is as follows:

[M]ock jurors and mock justices overwhelmingly and consistently reject the accessorial liability theory (i.e., the equalist position [the idea that all those involved in the felony should be held equally responsible for the death that occurred during the commission of the felony]) and favor, instead, a proportional treatment of defendants based on their level of culpability and their level of participation in the crime."92

The felony-murder rule is past its date of usefulness. The history of the rule is unclear and does not provide a concrete base on which the felony-murder rule can stand.

The rule has not proved that it significantly reduces crime, it actually increases crime in some areas, and its equalist position seems out of step with community sentiment.

91 Finkel, Norman, "Felony-Murder and Community Sentiment: Testing the Supreme Court's Assertions," Law and Human Behavior 15(4): 405-429 (1991), 412. 92 Finkel, Norman, 427. 53

Still, the felony-murder rule persists. Many lawmakers and legislatures within the

United States believe that the felony-murder rule provides three major benefits. The deterrent effects are threefold: (1) that it will deter other criminals from committing the felonies in the first place, (2) that it will make criminals act more cautiously to avoid unnecessary deaths, and (3) warns criminals that they will not be able to hide behind false claims of accidental or negligent murder.93 In response to these claims, (1) preliminary data by Malani has shown that felony deaths have actually increased for one of the most common crimes - robbery, (2) crime scenes are very chaotic and not easily controlled - a criminal is not likely to predict what his victims will do or how they will react, and (3) if degrees of culpability are implemented with respect to a modified felony-murder rule, then the facts of each case will be reviewed and each person involved in the felony will be culpable for what they physically did, actively participated in, and had the mental capacity to understand. Lawmakers should not continue to employ the felony-murder rule if they are looking to deter criminals and reduce crime. The same, or indeed a better, effect could be reached by increasing the penalty for each felony.

93Tomkovicz, James J. "The Endurance of the Felony-Murder Rule" Washington and Lee Law Review. 51:1429-1480 (1994), 1454. 54

Conclusion: Examples for the Rest of the United States to Follow The way it is written and carried out in each state is slightly varied, but in its most basic sense the felony-murder rule asserts that if a death occurs during the commission of a felony, any person involved with the felony is now culpable for the death. Forty-six of the fifty states in the United States still employ the felony-murder rule. Four states, however, have eliminated the felony-murder rule. Michigan, Kentucky, and Hawaii have all abolished the felony-murder rule. Ohio, by enacting "an involuntary manslaughter statute that covers what was previously felony-murder," has also effectively abolished the rule.94

Michigan abolished the felony-murder rule through a court case, People v. Aaron.

Aaron was convicted of first-degree felony murder charges as a result of a homicide committed during the course of an armed robbery. The Michigan Supreme Court decided that the felony-murder rule could not be used as a means to automatically assign the mens rea of the felony to the mens rea of the murder. The Court cited the "dubious origin" of the felony-murder rule and that the reasons it was first implemented are no longer valid today. "At early common law, the felony-murder rule went unchallenged because at that time practically all felonies were punishable by death. It was, therefore, "of no particular moment whether the condemned was hanged for the initial felony or for the death accidentally resulting from the felony.'"95 The Court asserted that one of the most basic principles of criminal law in general is that "criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that

94 McCarthy, Kevin E, "Felony Murder," OLR Research Report, (2008), http://www.cga.ct.gov/2008/rpt/2008-r-0087.htm 95 People v. Aaron, 409 Mich. 672 (1980), 695-96. 55

result."96 The felony-murder rule violates one of the most basic principles because it punishes all homicides committed during a felony without having to prove the relationship between the homicide and the criminal's state of mind. The rule ignores the action of each individual during the felony and the death and blurs the line between individual liability and moral culpability. "The felony-murder rule's most egregious violation of basic rules of culpability occurs where felony murder is categorized as first- degree murder. All other murders carrying equal punishment require a showing of premeditation, deliberation and willfulness while felony murder only requires a showing of intent to do the underlying felony."97 The Court held that Michigan has no statutory felony-murder rule which allows the mental element of murder to be satisfied by proof of the intention to commit the underlying felony.

[W]e exercise our role in the development of the common law by abrogating the common-law felony-murder rule. We hold that in order to convict a defendant of murder, as that term is defined by Michigan case law, it must be shown that he acted with intent to kill or to inflict great bodily harm or with a wanton and willful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm. We further hold that the issue of malice must always be submitted to the jury.98

Michigan abolished the felony-murder rule on the grounds that it violated one of the most basic principles of criminal law: the idea that a person must possess the mens rea during the crime to be convicted of that crime. The felony-murder rule allows a person to be convicted of felony-murder on the grounds that if they had the mens rea for the felony then they are also culpable for the death resulting from the commission of the felony. The idea of applying the mens rea of the felony to the mens rea of the murder is very dangerous. The danger in the felony-murder rule is that it can extend even to those who had little to nothing to do with the felony or the ensuing murder. This logic is

96 People v. Aaron, 409 Mich. 672 (1980), 708. 97 People v. Aaron, 409 Mich. 672 (1980), 708. 98 People v. Aaron, 409 Mich. 672 (1980), 733. 56

unacceptable and undermines the degrees of culpability and moral responsibility that criminal law currently employs. The Michigan Supreme Court reversed and remanded the case on these grounds and effectively abolished the felony-murder rule.

Kentucky abolished the felony-murder rule in 1984 by the enactment of Kentucky

Revised Statute § 507.020. The revised statute allowed the particular circumstances of a case to be considered separately from the commission of the felony. This meant that the facts of the case and details of individual person's involvement in the felony would now be evaluated and not only the fact that a death had occurred during the commission of the felony. Kentucky identified that the felony-murder rule as it stood could result in someone being convicted of murder without the proper mens rea to accompany the charge.99 With the new statute, the facts of each case will be considered when charging the defendant instead of automatically considering them completely culpable for the murder.

Hawaii abolished the felony-murder rule in a fashion similar to Kentucky. Hawaii condemned the felony-murder rule and proclaimed that the felony-murder rule is not a sound principle. "[It] converts an accidental, negligent, or reckless homicide into a murder simply because, without more, the killing was in furtherance of a criminal objective of some defined class. Engaging in certain penalty-prohibited behavior may, of course, evidence a recklessness sufficient to establish manslaughter, or a practical certainty or intent, with respect to causing death, sufficient to establish murder, but such a finding is an independent determination which must rest on the facts of each case."100

Hawaii enacted Statute §707-701 to eliminate the felony murder rule. The statute noted

99 Bonnie, RJ. Criminal Law, Second Edition (New York: Foundation Press, 2004), 860. 100 Hawaii Statute § 707-701, http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701- 0853/HRS0707/HRS_0707-0701.htm 57

that "the wiser course, it seems, would be to follow the lead of England and India and abolish the felony-murder rule in its entirety."101 The statute determined that a death resulting from the commission of a felony should not automatically be classified as murder. Now, the specific facts of each case would be reviewed before a decision was made.

Charging a person with murder should involve a separate investigation based on the facts of the crime, and not on the fact that the criminal was also involved in the commission of a felony.102 Each case involving a felony death is unique unto itself. The situation and facts surrounding the case are all crucial. To treat each person involved in the felony equally, and to make them all equally culpable for the death that occurred during the commission of the felony, is to deny them a review of their particular actions and an assessment of exactly what that person did during the crime and then determine what role the person played in the death. Degrees of culpability and proportional punishment are essential to reforming the felony-murder rule. As it stands, the felony- murder rule makes every person involved in the commission of the felony equally culpable if a death occurs. Proportional punishment relies heavily on the use of degrees of culpability. Degrees of culpability work to ensure that a person who is charged with negligent (least culpable) behavior is not punished as severely as someone who is charged with purposeful (most culpable) behavior. If degrees of culpability were used during the felony-murder rule, it would ensure that someone like Ryan Holle, who played little to no part in the crime, is not held as culpable or punished as severely as the person

101 Hawaii Statute § 707-701, http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701- 0853/HRS0707/HRS_0707-0701.htm 102 Hawaii Statute § 707-701, http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701- 0853/HRS0707/HRS_0707-0701.htm 58

who actually commits the murder. Utilitarians may try to defend the doctrine by purporting that it deters criminals from intentional murders and makes them act more cautiously, but preliminary research has proven that these claims are false.103 A retributivist approach that ensures that criminals receive their 'just deserts,' along with degrees of culpability, the proportionality principle and a review of the facts of each case, to murders committed during the course of a felony is the best way to punish criminals who are involved in the commission of a felony when a murder occurs.

103 Malani, Anup, 25-26. 59

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