10 COMPLICITY AND COLLECTIVE LIABILITY

THE PROBLEM OF COMPLICITY IN FELONY MURDER

If a killer must cause death negligently to be liable for felony murder, an accomplice in felony murder should be no less culpable. Yet critics have contended that the felony murder doctrine holds accomplices in predicate felonies strictly liable for their co-felons’ unexpected killings. A New York Times story on felony murder liability dramatized this claim with a detailed discussion of the Ryan Holle case.1

Assessing the Holle case requires that we clarify the concept of complicity in a predicate felony. Complicity requires aiding or encouraging a principal in committing an offense. Because the accomplice’s conduct is different from the perpetrator’s conduct, the accomplice’s mental state must differ as well. Most jurisdictions require intent to aid, which they interpret as a purpose of making the crime succeed.2 These jurisdictions include Florida, where the Holle case was decided.

Holle, who routinely shared the use of his car with a cohabitant, should not have been convicted of burglary without proof that he provided the car on this occasion for the purpose of—not just with the expectation of—facilitating the burglary. Holle testified that he heard one of the burglars say that it might be necessary to knock out the victim.3 So he had reason to foresee that she would be clubbed fatally. If Holle accepted this risk as a means to the end of stealing, he arguably deserved murder liability. But if stealing was never his goal and he was merely fulfilling his household obligations by sharing use of his possessions, he deserved liability for neither the murder nor the predicate felony of burglary. Accordingly, the injustice of Holle’s murder conviction resulted from his undeserved accomplice liability for the burglary rather than any undeserved attribution of the killing to the burglary. Unjust convictions of complicity in felony murder often result from misattributions of complicity in the predicate felony.4

The general problem of accomplice liability for felony murder can be illustrated with two hypothetical scenarios.

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