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December 4, 2007

The severity of felony murder responsibility

In today's New York Times, Adam Liptak has this article entitled, "Serving Life for Providing Car to Killers."  Here are a few excerpts:

The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule....

India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.”  Countries outside the common law tradition agree.  “The view in Europe,” said James Q. Whitman, a professor of comparative law at Yale, “is that we hold people responsible for their own acts and not the acts of others.”

But prosecutors and victims’ rights groups in the United States say that punishing accomplices as though they had been the actual killers is perfectly appropriate....  Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, said “all perpetrators of the underlying felony, not just the one who pulls the trigger” should be held accountable for murder.

December 4, 2007 at 08:54 AM | Permalink


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A further quote from the article: "'A person who has chosen to commit armed robbery, rape or kidnapping has chosen to do something with a strong possibility of causing the death of an innocent person,' Mr. Scheidegger said. 'That choice makes it morally justified to convict the person of murder when that possibility happens.'"

It's too bad this rigorous theory of accountability only applies to poor people in the criminal justice system and not, say, to people like federalist and Scheidegger who make social and economic policy choices knowing those choices have a strong possibility of causing the death of an innocent person. (If they don't know their choices cause innocent people to die, they should know it given their education and access to resources, and that is sufficient under this broad theory of accountability to capture them.) Frankly, I favor expanding accountability in such a manner. I do, however, disagree with people who would apply it only to the poor and, by extension, disproportionately to racial minorities.

It's nothing short of amazing how this society holds the poor to the highest standard of conduct, even while systematically depriving that segment of the resources that promote healthy decision-making.

Posted by: DK | Dec 4, 2007 9:15:28 AM


1. Could you supply a citation to a case supporting your statement that the felony murder rule "only applies to poor people in the criminal justice system..."?

2. The "resource[ ] that promote[s] healthy decision-making" has a name. It's called a "conscience." If you're saying that poor people are unable to develop one, I would hope you could support that with evidence as well.

3. Perpetually hiding behind identity-group grievance theory in order to deny or dismiss personal responsibility is getting to be an old game, and one that wasn't either persuasive or appealling even in its youth.


Posted by: Bill Otis | Dec 4, 2007 9:42:05 AM

Liptak chose a very sympathetic case due to the factual issues of whether the guy knew what they were going to do with the car. Plus, there's the "he got life for giving them a car" angle to this. However, if someone knowingly or intentionally aids, induces or causes another to commit a felony with substantial risk to human life (burglary of a dwelling certainly qualifies), then why wouldn't they be on the hook if murder results?

The other issue that was not touched on in the article is that felony murder/accomplice liability ncessarily involves 2 or more people. Criminals acting in concert are more dangerous than solo ones--so imposing an increased penalty is acceptable.

Finally, the felony murder rule destroys the proof problem. The criminals could point to each other as the "real killer", with the result of each of them escaping punishment for the death or giving one of the criminals too much leverage in plea bargains.

Posted by: federalist | Dec 4, 2007 10:54:26 AM

Good points all, federalist.

Liptak is not what one would call an entirely objective journalist.

Posted by: Bill Otis | Dec 4, 2007 11:02:17 AM

federalist ( and Bill ) -
"the felony murder rule destroys the proof problem"

That approach is precisely the issue that is making US criminal law a mockery of Justice. Once you move away from the requirement of proof, the defending criminal lawyer is left with nothing, much less his client.

Hasn't DNA testing and the raft of exonerations taught you anything? I appreciate that in your mind, the sacrifice of innocents is a small price to pay for being able to chalk up another conviction (or execution), but for those of us concerned with real people, society at large, and the law as a mechanism to Justice, your obsession is both shocking and painfully insulting. The law under the Constitution is designed to protect the accused (whoever they are, whatever their crime, and whatever their means), as well to punish the offense. Your inability to separate the offender from the offense is actually what distinguishes you from (most of) those who have dedicated their careers to defending clients. It seems you have neither respect for them, nor concern for the accused they represent. Why not take the next logical step - do away with a trial altogether and just appoint a magistrate to rubber stamp every prosecution and to pronounce a penalty by statutory guidance and aggravating tariff? Come to think of it, at times we seem to have just that already. Some prosecutors have made it into a fine art.

Posted by: peter | Dec 4, 2007 12:34:01 PM

Of course Liptak chose a sympathetic case, but why shouldn't he? The question is whether this defendant have have gotten LWOP on these facts.

You criticize Liptak's example, but the "lock-'em-up" crowd regularly does the opposite. For instance, when Congress makes sentences longer, the most egregious crimes are cited as the reason for doing so. That's how you end up with stacked mandatory minimums that ensnare fairly minor offenders, not just the "worst of the worst" that they were meant for.

Posted by: Marc Shepherd | Dec 4, 2007 1:44:37 PM

Marc, but then the issue is not felony murder per se, but the extent of the participation needed to get under the rule. So then the arguments should have been directed to the mens rea issue and the amount of participation. I could see a regime where you punish all burglars for one of them raping a woman in the house being burgled (even the getaway driver), but where a jury could reduce the culpability for a minor participation (e.g., loaning someone a car). My point is that this case is a pretty crappy way to attack the felony murder rule generally.

Let's try this hypo. I steal a housekey and give it to a friend knowing he's going to break into the person's house. He goes and rapes the woman. Should I be prosecuted for rape?

Posted by: federalist | Dec 4, 2007 2:11:23 PM

I'm a defense attorney.

The following is a link to information concerning another barbaric application of the felony murder rule ---


One has to question the morality and/or wisdom of applying this "no-intent-to-kill-required" rule, without exception, to teen-age, or otherwise youthful offenders.

Posted by: Victor Haltom | Dec 4, 2007 3:37:35 PM

Let's try this hypo. I steal a housekey and give it to a friend knowing he's going to break into the person's house. He goes and rapes the woman. Should I be prosecuted for rape?

Definitely not, assuming you didn't know he had a rape in mind. Break-ins don't generally lead to rape, so that wasn't a foreseeable consequence of your stealing the key.

Even if you did know that, you could argue that there's different levels of culpability there, and that the two offenders shouldn't be punished as if they had done identical things.

Posted by: Marc Shepherd | Dec 4, 2007 4:20:19 PM

Well, Marc, if that's your opinion, that's fine. The bottom line, though, is that burglars often commit crimes against the people in the house. If someone acquires my key and gives it to thugs who want to burgle my house and my kids get killed, let's put it this way, I would think that guy responsible for my kids' deaths, and if the law didn't treat him that way, I would.

In any event, Marc, your post has an assumption, namely, that there should be a gradation of punishment as between partners in crime. That's fine, sometimes, but where a murder occurs, the punishment often is going to be the same for all. This guy, at least if the evidence is to be believed, knew that there was a threat of violence. He cannot whine when it went a little further than he thought. I personally would support execution on these facts, and I have zero problem with the LWOP sentence.

Posted by: federalist | Dec 4, 2007 4:37:02 PM


(1) Of course there are no cases. What kind of court would undermine its own institutional authority by saying as much? But if you are denying that theories of accountability become narrower as the subject to whom they are applied becomes more powerful, then I’ve got a bridge to sell you.

(2) I am not saying poor people are unable to develop a conscience. I am saying exactly what I said: that our society deprives a large segment of our population from the material resources necessary to make healthy decision-making. Your position that it is nothing more than a lack of conscience that causes poor decision-making leading to criminal acts and imprisonment has perverse corollaries. Since I assume you are not denying the demographic fact that the prison population is overwhelmingly and disproportionately poor as well as disproportionately black, your position advances the proposition that blacks lack a conscience at a greater rate than whites lack one. If that is the position you are in fact advancing, then you have some more explaining to do, not me.

(3) I think you misunderstood my point. I favor expanding rigorous theories of personal accountability. I wish to apply it to all actors—including the most powerful among us—rather than constrain its application to the poorest among us. The powerful tend not to like that idea, which is why we see point (1), above, in effect.

Posted by: DK | Dec 4, 2007 7:58:50 PM

The felony murder rule is idotic and overinclusive. People should be punished for moral culpability not unfortutious results. And who gives a damn if the victim's father thinks the punishment was just. He has a biased viewpoint and is simply being vindictive. What a moronic justice system we have in some respects. There is a reason other common law jurisdictions have done away with the rule.

Posted by: Mark | Dec 4, 2007 10:11:57 PM

So let's see Mark, if a person lends a car to someone, knowing that they are going to use it to facilitate a burglary and knowing further that the burglars are willing to use force on an occupant and when the force used gets out of hand, that person is not morally culpable for the death. You certainly have a strange sense of moral culpability. And it is not a basis upon which to label our justice system "moronic".

And as for your sniping at the victim's father, it is beneath contempt.

Posted by: federalist | Dec 5, 2007 12:50:13 AM

DK's argument about material resources would apply in cases of someone stealing food to feed his family but should that extend to murder, rape, kidnapping, etc?

Posted by: CJT | Dec 5, 2007 9:23:38 AM

No disagreement from me on the general application of the felony murder rule, but I do have a question for the group: federalist said earlier "Criminals acting in concert are more dangerous than solo ones--so imposing an increased penalty is acceptable." Anybody question this?

I think there are arguments on both sides. You get a lookout, etc., you're less likely to encounter homeowners or the like. In addition, homeowner sees three guys in his house, probably less likely that he's try to fight off all 3 (unless he's in Texas with a big ol gun).

On the other hand, gang mentality often can serve to escalate crime and violence.


Posted by: JustClerk | Dec 5, 2007 10:22:23 AM

Federalist, are you able to see any gradations of culpability, between a non-participant who merely lends a car for a purpose that might turn violent, and a person who actually points a gun at a human being and pulls the trigger?

Does it not make some degree of sense that perhaps our criminal justice system ought to distinguish between the two?

Posted by: Marc Shepherd | Dec 5, 2007 10:37:49 AM

The fact that he lent them the car knowing what they would do makes him a participant. Does that make him as bad as the triggerman, maybe, maybe not (there are all sorts of scenarios where the triggerman is less culpable)?

He should have taken the 10 years.

Posted by: federalist | Dec 5, 2007 11:31:24 AM

I was convicted in 1983 of 1st degree murder in which I was 17 years old fleeing from officers who were attempting to arrest me in a stolen vehicle from days earlier and ended in an accident which killed a 76 year old lady. I plead guilty because I was told to and was new to the system... I can't even get an occupational license because I'm considered a violent offender. Please don't mistake me that I'm making light of a life that was taken, I would have gladly traded places with her that day. I know that life isn't always fair but I have been actively involved in many programs trying to touch lives that I can do something about... I can't change what happened back there, I can only try to make a difference in other peoples lives now.
I just am not sure that we should be barred from challenging something where intent was never proven, and be considered a violent offender forever.

Posted by: Kim | Aug 20, 2009 10:37:40 PM

If a person gets into a stolen car, knowing that it is stolen, what can they be charged with?

Posted by: James | Jan 9, 2011 6:10:54 PM

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