2 THE CHARGE OF STRICT LIABILITY

In characterizing felony murder liability as rationally indefensible, critics assume that it takes the form of a strict liability rule. Imposing severe punishment without fault self-evidently violates desert. Critics add that felony murder is unlikely to deter killing if it does not condition liability for homicide on the choice to kill. Nor can it deter predicate felonies if it conditions additional punishment on a consequence felons have no reason to expect.

This chapter argues that defenders of felony murder rules need not take on the burden of defending strict liability. The equation of felony murder liability with strict liability depends on an artificially formalist conception of strict liability, which begs the question of desert. In substance, felony murder laws condition liability on negligence rather than strict liability.

Yet a persuasive defense of felony murder rules does need to show it imposes deserved punishment for culpable conduct. Deterrence rationales for felony murder liability are not very persuasive, while undeserved punishment can also impose countervailing social costs. Finally, constitutional due process appears to disfavor strict liability for crimes subject to severe penalties.


DETERRENCE ARGUMENTS

Obliged to impose felony murder liability despite the consensus of scholars that it imposes undeserved strict liability, courts have sought to defend a strict liability rule as a useful deterrent.1 Do these deterrence rationales justify a strict liability rule? The only empirical study of current felony murder rules finds no discernible deterrent effect on homicide or on predicate felonies.2 Moreover, we will see that deterrence theory would not predict that felony murder liability would have much deterrent effect.

Courts have sometimes explained felony murder liability as necessary to deter predicate felonies.3 Yet this reasoning is subject to a traditional objection that remains persuasive. Opponents argue that even felonies we think of as very

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