The Felony Murder Rule in Illinois: The Injustice of the Proximate Cause Theory Explored Via Research in Cognitive Psychology
Lijtmaer, Martin, Journal of Criminal Law and Criminology
In the summer of 2006, the Illinois Supreme Court affirmed two first-degree murder convictions in People v. Hudson (1) and People v. Klebanowski. (2) Both cases involved eerily similar fact patterns where an off-duty police officer, unbeknownst to the perpetrators, happened to be a target of an armed robbery. (3) In both cases, the officer fatally shot one of the felons, and the defendant was convicted of first-degree murder for the death of his accomplice. (4) The Illinois Supreme Court upheld both convictions under the felony murder rule and reaffirmed its allegiance to the proximate cause theory of felony murder. (5)
The proximate cause theory holds felons accountable for any foreseeable deaths that occur during the commission or attempted commission of a felony. (6) This includes deaths of innocent bystanders caused by third parties, and even, as in Hudson and Klebanowski, deaths of co-felons at the hands of police officers. (7) Illinois courts have justified using proximate cause, a concept borrowed from tort law, on the grounds that the foreseeability requirement would temper the innate harshness of the felony murder rule. (8) However, in practice, instead of placing a restriction on the felony murder rule, it has been applied expansively, extending liability even to those defendants whose actions were attenuated from their co-felon's death. This Comment explores why the proximate cause theory has failed in its purported purpose to limit the felony murder rule and suggests that research in cognitive psychology can help us understand the rule's expansive application.
Psychologists have long been aware of universal biases, such as the hindsight bias, the phenomenon that people overestimate the predictability of past events, (9) and the outcome bias, the tendency to judge the quality of a decision based on its consequences. (10) Research suggests that these two biases, working in tandem, considerably undermine people's ability to judge the foreseeability of events in hindsight accurately (11)--a task required of juries and judges in determining the guilt of felony murder defendants via the proximate cause theory. (12) Furthermore, studies in causal attribution have shown that people conflate blameworthy behavior with causation. (13) For example, research shows that people assessing causation for a traffic accident placed more blame on a driver whose motive for speeding was to hide a vial of cocaine than on a driver rushing to hide an anniversary present. (14) Furthermore, another study suggests that blame is attributed in proportion to the severity of the result--thus the more severe the result, the more blame that will be attributed to the actor. (15)
The implications of this research for the proximate cause theory of the felony murder rule are twofold. First, by virtue of these psychological phenomena, both juries and judges tend to find that a resulting death was foreseeable in felony murder cases, even where there were superseding intervening causes breaking the causal connection between the defendant's conduct and the resulting death. Furthermore, due to the inherently blameworthy behavior entailed in committing a felony, causal attributions are exacerbated leading to unwarranted causal associations between the defendant's acts and the resulting death. As such, the research suggests that in individual cases, the playing field is heavily tilted against the felony murder defendant.
Second, and on a broader level, the expansion of proximate cause theory jurisprudence since its inception is a direct result of the outcomes of individual felony murder cases. Because juries are likely to find a resulting death foreseeable and appellate judges are generally deferential to jury determinations, courts have upheld felony murder convictions, gradually expanding the application of the proximate cause theory of the felony murder rule. In other words, the effects of the hindsight bias, outcome bias, and causal attribution on individual cases has translated into a general expansion of the Illinois Supreme Court's jurisprudence with respect to its felony murder rule. …