Felony Murder

A rapist chokes a distraught child victim to silence her. To his surprise, the child dies.¹ A robber aims his gun at a motel clerk’s forehead. His finger slips and he “accidentally” shoots his target dead.² An arsonist burns down a storefront to collect insurance, coincidentally incinerating the family living on the other side of the wall.³

Intent on selfish aims, these killers do not recognize the obvious risks their conduct imposes on their victims. Though unintended, these killings are hardly accidental: such inadvertent but foreseeable killings are negligent. Yet “negligence” does not seem a sufficient epithet to capture the culpability of these killings, nor does “negligent homicide” seem a serious enough charge. These offenders callously impose risks of death in order to achieve other wrongful ends. In each case, the offender’s felonious motive for imposing a risk of death aggravates his guilt for unintentionally, but nevertheless culpably, causing the resulting death. Accordingly, in most American jurisdictions, these killings would be punished as murder. The legal concept necessary to this result, the felony murder doctrine, is the subject of this book.

Although the felony murder doctrine is arguably necessary to achieve justice in cases like those described above, it is one of the most widely criticized features of American criminal law. Legal scholars are almost unanimous in condemning it as a morally indefensible form of strict liability.⁴ Some have concluded that felony murder rules impose unconstitutionally cruel and unusual punishment by ascribing guilt without fault, or that they violate constitutional due process by presuming malice without proof.⁵ Many view contemporary felony murder rules as descended from a sweeping “common law felony murder rule” holding all participants in all felonies responsible for all resulting deaths.⁶ Some therefore see felony murder liability as an anachronism, a primitive relic of medieval law. Others may concede that modern

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