Felony Murder

The dual culpability principle conditions felony murder liability on culpable indifference to a risk of death combined with felonious purpose. We have seen that most felony murder jurisdictions limit felony murder liability to deaths caused negligently. We will now consider the normative dimension of dual culpability, the requirement of felonious purpose.

All felony murder jurisdictions require felonious purpose in one important way: they limit felony murder liability to those who have committed, attempted, or promoted certain felonies. In most jurisdictions one cannot attempt or participate in a felony without having a wrongful purpose. Traditional predicate felonies—arson, burglary, robbery, rape, and kidnapping—all involve wrongful purposes. Traditional accounts of felony murder liability as transferring of intent from an intended wrong to an unintended injury also presume that the predicate felony involves a wrongful purpose.

Most jurisdictions require felonious purpose by means of a second device as well—requiring that the act causing death be committed in furtherance of the felony. As noted earlier, more than thirty jurisdictions require an instrumental or causal relationship between the felony and the act causing death.

In this chapter, we will focus on a third important device for conditioning felony murder liability on felonious purpose: merger limitations. These rules require that predicate felonies endanger some interest other than the health of the victim. Our review the development of the merger doctrine will show that merger limitations are integral and traditional features of felony murder law, widely adhered to in contemporary law. Where applicable, the merger doctrine is best understood as an independent felonious purpose requirement. Yet we should view an independent felonious purpose requirement as merely one means of realizing the dual culpability principle, rather than an end in itself. While some commonly enumerated predicate felonies lack an independent felonious purpose, these usually entail extreme indifference to human life. Thus

-226-