You didn't show, and wouldn't even try to show, that there's any relationship between any form of brokenness in the system that can be demonstrated by the statistics on gross incarceration and the felony-murder rule. What percentage of the immense toll of incarceration would be prevented by modification of all transferred intent rules, not just this one? Virtually none. We don't imprison very large numbers of almost-murderers. We imprison large numbers of people who sold or possessed drugs.

Why not explain the matter in terms of transferred intent? That's simple, accurate, and analytically helpful.

There are dead people, by definition, and the felon's conduct is harmful, blame-worthy, and a but-for cause of the death or deaths. Why is that an insufficient basis for the prosecution?

Now you are talking about a further sub-constitutent of all the not many people convicted on such offenses, in which you think it could be shown that there was no ability to foresee the possibility that felonious behavior might possibly result in death. That is what infinitesimal slice of the cases? In cases in which the defendant was armed, or knew that his or her partner in criminal venture was armed, how could the possibility of homicide be unforeseen. The purpose of firearms being to kill, and the venturers having armed themselves with devices intended to facilitate killing, why is this a problem?

When two people commit the exact same crime under the felony-murder rule, one may go to prison for life while the other serves a year or two in prison, solely based on factors that were not within their control.

What does that have to do with it, unless you are modifying a deeper and more necessary rule, that people intend the probable and natural consequences of acts intentionally taken?

Rather than punishing someone for their level of culpability, it seems that the felony-murder rule punishes based on felons’ levels of misfortune. If the criminal justice system is going to do this, Macaulay states, “[i]t would be a less capricious, and therefore a more salutary course, to provide that every fiftieth or every hundredth thief selected by lot should be hanged, than to provide that every thief should be hanged who, while engaged in stealing, should meet with an unforeseen misfortune such as might have befallen the most virtuous man while performing the most virtuous action.”

And why is that not a sufficient reason to assign to those who committed the crime responsibility for the outcome. Surely you would not claim that a civil suit for causing the injuries resulting from the crime would necessarily fail because the conduct created a risk of death the defendant didn't specifically actually consider?

So in the end, this is a rehashing of the familiar classroom arguments against doctrines of transferred intent, with little actual engagement with the hard parts of the argument, running under a banner of over-incarceration with which the subject of the argument has nothing at all to do. The route to revision seems to me to be to discard the envelope, which doesn't fit the matter contained, and to get a little closer to the real arguments against the position you are taking.

The Injustice of the Felony-Murder Rule

-- By ElieT - 09 Apr 2013

Intro and Thesis

The United States criminal justice system is broken. The United States incarcerates a higher proportion of its citizens than any other country on earth (0.743% in 2009 according to the International Centre for Prison Studies). In comparison, Russia had the second highest incarceration rate at 0.577%. While Americans represent about five percent of the world’s population, they represent about a quarter of the world’s prison population. It has become clear that the United States’ criminal justice system is very oppressive and is in need of a massive overhaul. The felony-murder rule is an embodiment of the injustice of the United States’ criminal justice system and should therefore be abolished.

Explanation of the Problem

The felony-murder rule allows prosecutors to charge felons with any death that occurs during the commission of a felony. While the prosecutor must prove that the felon’s acts actually caused the death, he or she does not have to prove the mens rea that would otherwise be necessary for a murder conviction. In many cases, the doctrine is unproblematic. For instance, there are numerous cases where, during the commission of an armed robbery, the felon holds a store clerk up at gunpoint, things escalate, and the felon ends up killing the clerk. In cases such as this, the prosecution would probably be able to convict a felon of murder (or at least manslaughter) without the use of the felony-murder doctrine. In these instances, the felony-murder rule just makes it easier for the prosecution.

However, in other cases, the prosecution can secure a conviction against a perpetrator even if he or she had no intention of killing anyone and even if the victim’s death was completely unforeseeable. For instance, in the California case People v. Stamp, the defendant burglarized the business premises of Honeyman, an obese sixty-year-old man with a history of heart disease, and robbed him at gunpoint. During the robbery, Honeyman was ordered to lie on the floor until the defendant fled. The fright was a shock to Honeyman’s system and he died of a heart attack. In convicting the defendant under the felony-murder doctrine, the court noted that the felony-murder rule was not limited to foreseeable deaths, and that so long as the death was the causal result of acts of the defendant, the defendant was strictly liable for the death. As a result, the mens rea requirement of murder, obviously one of the most serious offenses recognized in our criminal justice system, is eliminated, and the prosecution can easily put someone in prison without ascertaining his or her moral culpability. This is the view that is generally accepted in American courts.

Justifications

Proponents of the felony-murder doctrine would not characterize the rule as eliminating the mens rea requirement for murder. Rather, they assert that the mens rea of the lesser offense (the felony) can substitute for the mens rea of the greater offense (the murder). They would impute malice for the murder from malice of the felony. Just because this technical argument succeeds in manipulating the doctrine, however, doesn’t mean that it stands on solid ground. As T.B. Macaulay explains, it is “barbarous and absurd” to punish people for the bad consequences that they could not have foreseen. When two people commit the exact same crime under the felony-murder rule, one may go to prison for life while the other serves a year or two in prison, solely based on factors that were not within their control. Rather than punishing someone for their level of culpability, it seems that the felony-murder rule punishes based on felons’ levels of misfortune. If the criminal justice system is going to do this, Macaulay states, “[i]t would be a less capricious, and therefore a more salutary course, to provide that every fiftieth or every hundredth thief selected by lot should be hanged, than to provide that every thief should be hanged who, while engaged in stealing, should meet with an unforeseen misfortune such as might have befallen the most virtuous man while performing the most virtuous action.”

Proponents of the felony-murder rule justify its use based on the theory that it will deter future felons from committing felonies, or at least from bringing guns or other dangerous weapons to crime scenes. However, it is hard to see how this rule dissuades future felons from committing crimes. First, it assumes that future felons are aware of the law and will be persuaded by it not to bring dangerous weapons on their felonies. Even if they are aware of the law, however, the very nature of the rule is that it sets out to punish people for the unforeseeable nature of their acts. In the Stamp example, there is no way that Stamp could have foresees that Honeyman would die of a heart attack as a result of his robbery. While he might have died if Stamp shot him, no amount of precaution (save for not committing the crime in the first place) would have prevented this death.

Potential Solution:

A few American jurisdictions have abolished the felony-murder rule altogether. However, the great majority have retained some version of it. Some have limited the list of eligible felonies to include those felonies that are “inherently dangerous,” while others have come up with complex grading schemes to reduce the actor’s punishment in light of their lower level of culpability. While these legislative actions are certainly steps in the right direction, they do not go far enough to eliminate the effects of the felony-murder doctrine.

The Model Penal Code recommended eliminating felony-murder rule. However, for the purpose of establishing murder through recklessness under circumstances manifesting extreme indifference to the value of human life, the fact that the actor is engaged in or accomplice to, or in an attempt to commit or flee from certain felonies creates a rebuttal presumption that the required indifference and recklessness existed. This provision seems to encapsulate the devious acts that the criminal law should seek to punish, while allowing the defendant to escape liability if he is able to show that death to the victim was unforeseeable. This is a worthy course for the criminal law, but the Model Penal Code has not had much impact as of yet.

Conclusion

The felony-murder rule is just one example of a doctrine that the American criminal justice system uses to incarcerate the highest proportion of its citizens in the world. It seems to rest on a principle that society should lock up as many of its “depraved” citizens as possible so that the rest of community can live in harmony. But would it really be so bad if we didn’t lock everyone up? Although people may feel safe knowing that the criminal law punishes bad behavior so strictly, the fact that it imposes such harsh penalties should be more troublesome. After all, if the law eliminates the mens rea requirement, many non-culpable citizens can be incarcerated by the system at any moment. Although the felony-murder rule is a convenient way for society to separate “us” and “them” and make people feel comfortable, it is completely unjust and ultimately does more harm than good.

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