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Making the Best of Felony Murder

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Making the Best of Felony Murder University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship 2011 Making the Best of Felony Murder Guyora Binder University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Criminal Law Commons Recommended Citation Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403 (2011). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/287 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. ARTICLES MAKING THE BEST OF FELONY MURDER GuYoRA BINDER* INTRODUCTION: THE WORST OF FELONY MURDER ........................................ 404 I. THE PRINCIPLES OF FELONY MURDER LIABILITY ............................... 411 A. The Constructive Interpretationof Legal Principle .................... 411 B. The Development of Felony Murder Liability ............................. 413 C. Objections to Felony Murder ...................................................... 421 1. Theoretical O bjections ........................................................... 422 2. Constitutional Objections ...................................................... 428 D. Felony Murder as a Crime of Dual Culpability .......................... 433 E. Realizing the Principleof Dual Culpability ................................ 437 II. FELONY MURDER AS NEGLIGENT HOMICIDE ...................................... 439 A . CulpabilityRequirements ............................................................ 440 B. Dangerous Felony Rules ............................................................. 450 1. Enumerated Predicate Felonies ............................................. 450 2. D angerousness Standards ...................................................... 466 C . CausationStandards ................................................................... 482 III. COMPLICITY AND COLLECTIVE LIABILITY .......................................... 495 A. The Problem of Complicity in Felony Murder ............................ 495 B. IndividualFelony Murder Liability Jurisdictions....................... 501 1. Individual Liability Jurisdictions with Exhaustive E um eration ............................................................................ 503 2. Individual liability with Dangerous Felony Rules ................. 507 C. Collective Liability Jurisdictions................................................. 510 1. Causing Death by Means of a Felony .................................... 511 2. Participating in a Felony in Which Death Is Caused by a P articip ant ........................................................................... 5 13 3. Participating in a Felony in Which Death Is Caused by any P erson ............................................................................. 5 16 IV. INDEPENDENT FELONY REQUIREMENTS .............................................. 518 A . The Merger Problem ................................................................... 519 B. A History of the Merger Problem ................................................ 525 1. E m ergence .............................................................................525 2. The Merger Controversy in the Era of Code Reform ............ 530 3. Merger Under the New Codes ............................................... 533 University at Buffalo Distinguished Professor, State University of New York at Buffalo Law School. Thanks are owed Alicia Sim, Kelly-Anne Kelly-Williams, Mark Welchons, Bob Carbone, Helen Root, Alex Bouganim, and Scott Ptak for substantial research assistance. Errors are mine alone. BOSTON UNIVERSITY LA WREVIEW [Vol. 91: 403 4. Recent D evelopm ents ............................................................ 538 C. Overt and Covert Merger Limitations in Contemporary L aw .............................................................................................. 5 4 2 1. Exhaustive Enumeration Jurisdictions ................................... 543 2. Partial Enumeration Jurisdictions .......................................... 546 3. Categorical Jurisdictions ....................................................... 548 D. Summary: The Authority of the Merger Doctrine........................ 549 CONCLUSION: MAKING FELONY MURDER LAW THE BEST IT CAN BE ........... 551 Although scorned as irrationalby academics, the felony murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the felony murder doctrine can be bestjustified, and confined within its justifying principles. To that end, this Article seeks to make the best of American felony murder laws by identifying a principle ofjustice that explains as much existing law as possible, and provides a criterionfor reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor's aims as well as the actor's expectations, this Article proposes a dual culpability principle, which justifies imposing murder liabilityfor killing negligently in the pursuit of an independent felonious purpose. A review of current felony murder rules reveals that most jurisdictions condition the offense on negligence through a combination of culpability requirements, dangerous felony limits, foreseeable causation requirements, and complicity standards. In addition, most jurisdictions requirefelonious motive through a combination of enumerated felonies, causation standards, and merger limitations. Thus, felony murder law more or less conforms to the dual culpability principle in most jurisdictions. This sufficiently validates the principle to warrant its use as a critical standard. Many felony murder laws nevertheless fall short of the principle 's demands in some respects, and this Article identifies the reforms needed in each jurisdiction. More importantly, it provides the arguments ofprinciple andprecedent that lawyers and legislators will need to advocate those reforms. INTRODUCTION: THE WORST OF FELONY MURDER The felony murder doctrine, imposing murder liability for some unintended killings in the course of some felonies, is part of the law of almost every American jurisdiction. Yet it is also one of the most widely criticized features of American criminal law.' Leading criminal law scholars have urged its See, e.g., MODEL PENAL CODE § 210.2 cmt. 6, at 36 (Official Draft and Revised Comments 1980); SAMUEL H. PILLSBURY, JUDGING EVIL: RETHINKING THE LAW OF MURDER AND MANSLAUGHTER 106-08 (1998); Charles Crum, Causal Relations and the Felony- Murder Rule, 1952 WASH. U. L.Q. 191, 210; George Fletcher, Reflections on Felony- Murder, 12 Sw. U. L. REv. 413, 413-15 (1981); Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 UTAH L. REv. 635, 706-07; James J. Hippard, The Unconstitutionalityof Criminal Liability Without Fault: An Argument for a ConstitutionalDoctrine of Mens Rea, 10 HOUS. L. REv. 1039, 2011] FELONY MURDER 2 abolition, condemning it as unprincipled and irrational. Critics charge that3 felony murder imposes undeserved strict liability for accidental death. Criminal law teachers impart this view to their students,4 and use felony murder to illustrate the perils of rigid rule formalism. Critics can point to examples like these eleven cases from ten different jurisdictions: 1. Seven months after stealing a car, James Colenburg, a Missouri man, was driving down a residential street when an unsupervised two-year-old suddenly darted in front of the stolen car. The toddler was struck and 5 killed. Colenburg was convicted of felony murder predicated on theft. 2. Jonathan Miller, a fifteen-year-old Georgia youth, punched another boy in a schoolyard dispute. The second boy suffered a fatal brain hemorrhage. Miller was convicted of felony murder, predicated on the 6 felonies of assault with a deadly weapon and battery with injury. 3. Suspecting Allison Jenkins of drug possession, an Illinois police officer chased him at gunpoint. As the officer caught him by the arm, Jenkins tried to shake free. The officer tackled Jenkins and fired the gun as they fell, killing his own partner. Jenkins was convicted of felony murder, 7 predicated on battery of a police officer. No drugs were found. 1045 (1973); Robert G. Lawson, Criminal Law Revision in Kentucky: Part I - Homicide and Assault, 58 KY. LJ. 242, 252-55 (1970); Roy Moreland, A Re-Examination of the Law of Homicide in 1971: The Model Penal Code, 59 KY. L.J. 788, 804 (1971); H. L. Packer, Criminal Code Revision, 23 U. TORONTO L.J. 1, 4 (1973); Maynard E. Pirsig, Proposed Revision of the Minnesota Criminal Code, 47 MINN. L. REV. 417, 427-28 (1963); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 CORNELL L. REV. 446, 491 (1985); Stephen J. Schulhofer, Harm and Punishment:A Critiqueof Emphasis on the Results of Conduct in the CriminalLaw, 122 U. PA. L. REV. 1497, 1542-43 (1974); Jeanne Hall Seibold, Note, The Felony-MurderRule: In Search of a Viable Doctrine, 23 CATH. LAW. 133, 161-62 (1978); Note, Felony Murder as a FirstDegree Offense: An Anachronism Retained, 66 YALE L.J. 427, 427 (1957) [hereinafter Anachronism]; Note, Felony Murder: A Tort Law Reconceptualization,
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