How well does contemporary felony murder law conform to the dual culpability principle? There can be no simple answer to this question because felony murder law varies considerably across different jurisdictions. Yet felony murder laws can satisfy the dual culpability principle in different ways: by requiring mental states, by restricting predicate felonies, or by cabining causation and complicity. Reviewing the use of these different devices, we will find that most felony murder laws accord with the principle of dual culpability in most respects. At the same time felony murder law falls short of this standard in different ways in different jurisdictions. Accordingly, the necessary reforms vary as well. Rather than proposing a uniform statute that would often fix what is not broken, I will offer jurisdictionally specific suggestions to satisfy justice while respecting the integrity of existing law.
Contemporary law uses various devices to condition felony murder liability on negligence. Lawmakers can insert a requirement of foreseeable danger into the definition of felony murder in at least three places: as a required mental element, as part of the felony, or as part of the homicide. A substantial minority of felony murder jurisdictions have required some form of culpability. A great majority have required a dangerous felony. A substantial majority have also conditioned homicide on a foreseeable danger of death. It would be best for all jurisdictions to condition causation on foreseeable danger of death in felony murder cases.
Penal codes may condition felony murder liability on a culpable mental state in their definitions of murder or homicide, or in rules for constructing the mental elements of offenses. In addition, courts may add such a requirement to the offense elements set forth in the code. We will consider requirements of culpability imposed by any of these four means. Almost half of American jurisdic