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Felony Murder

Stanford University Press

Chapter One

THE FELONY MURDER PROBLEM

A rapist chokes a distraught child victim to silence her. To his surprise, the child dies. A robber aims his gun at a motel clerk's forehead. His finger slips and he "accidentally" shoots his target dead. An arsonist burns down a storefront to collect insurance, coincidentally incinerating the family living on the other side of the wall.

Intent on selfish aims, these killers do not recognize the obvious risks their conduct imposes on their victims. Though unintended, these killings are hardly accidental: such inadvertent but foreseeable killings are negligent. Yet "negligence" does not seem a sufficient epithet to capture the culpability of these killings, nor does "negligent homicide" seem a serious enough charge. These offenders callously impose risks of death in order to achieve other wrongful ends. In each case, the offender's felonious motive for imposing a risk of death aggravates his guilt for unintentionally, but nevertheless culpably, causing the resulting death. Accordingly, in most American jurisdictions, these killings would be punished as murder. The legal concept necessary to this result, the felony murder doctrine, is the subject of this book.

Although the felony murder doctrine is arguably necessary to achieve justice in cases like those described above, it is one of the most widely criticized features of American criminal law. Legal scholars are almost unanimous in condemning it as a morally indefensible form of strict liability. Some have concluded that felony murder rules impose unconstitutionally cruel and unusual punishment by ascribing guilt without fault, or that they violate constitutional due process by presuming malice without proof. Many view contemporary felony murder rules as descended from a sweeping "common law felony murder rule" holding all participants in all felonies responsible for all resulting deaths. Some therefore see felony murder liability as an anachronism, a primitive relic of medieval law. Others may concede that modern "reforms" have ameliorated the doctrine, but they regard these rules as pearl earrings on a pig, merely ornamenting an essentially barbaric principle of liability without fault.

Most criminal law scholars have assumed there is nothing to say on behalf of the felony murder doctrine, no way to rationalize its rules to the lawyers who will apply it, and no reforms worth urging on courts and legislatures short of its utter abolition. Sanford Kadish, author of the leading criminal law textbook, called the felony murder doctrine "rationally indefensible," and the American Law Institute's Model Penal Code commentaries observed that "[p]rincipled argument in favor of the felony-murder doctrine is hard to find." Such critics argue that felony murder liability is a morally arbitrary lottery, in which punishment depends on the fortuity that an unintended death occurs in the course of a felony, regardless of the felon's culpability for that death.

Now a killing can be very culpable even if it is not intended. Most felony murders are intentional shootings by armed robbers. A felony murder rule makes this type of killing murder without requiring the prosecutor to prove, or the jury to find, that the robber intended to kill. Many readers will not find these typical applications of felony murder liability troubling. Yet felony murder liability is sometimes imposed on felons who do not seem very culpable at all. Consider these ten cases:

1. Seven months after stealing a car, James Colenburg, a Missouri man, was driving down a residential street when an unsupervised two-year-old suddenly darted in front of the stolen car. The toddler was struck and killed. Colenburg was convicted of felony murder predicated on theft.

2. Jonathan Miller, a fifteen-year-old Georgia youth, punched another boy in a schoolyard dispute. The second boy suffered a fatal brain hemorrhage. Miller was convicted of felony murder, predicated on the felonies of assault with a deadly weapon and battery with injury.

3. Wrongly suspecting Allison Jenkins of drug possession, an Illinois police officer chased him at gunpoint. As the officer caught him by the arm, Jenkins tried to shake free. The officer tackled Jenkins and the gun fired as they fell, killing the officer's partner. Jenkins was convicted of felony murder, predicated on battery of a police officer.

4. Jonathan Earl Stamp robbed a California bank at gunpoint. Shortly thereafter one of the bank employees had a fatal heart attack. Stamp was convicted of felony murder.

5. New York burglar William Ingram broke into a home, only to be met at the door by the homeowner, who was brandishing a pistol. The homeowner forced Ingram to lie down, bound him, and called the police. After police took Ingram away, the homeowner suffered a fatal heart attack. Ingram was convicted of felony murder.

6. Also in New York, Eddie Matos fled across rooftops at night after committing a robbery. A pursuing police officer fell down an airshaft to his death. Matos was convicted of felony murder.

7. John Earl Hickman was present when a companion overdosed on cocaine in Virginia. He was convicted of felony murder predicated on drug possession.

8. John William Malaske, a young Oklahoma man, got a bottle of vodka for his underage sister and her two friends. One of the friends died of alcohol poisoning. Malaske was convicted of felony murder predicated on the felony of supplying alcohol to a minor.

9. Ryan Holle, a young Florida man, routinely loaned his car to his housemate. At the end of a party, the housemate talked with guests about stealing a safe from a drug dealer's home. The housemate asked Holle for the car keys. Holle, tired, drunk, and unsure whether the housemate was serious, provided the keys and went to bed. The housemate and his friends stole the safe, clubbing a resisting resident to death. Holle was convicted of felony murder and sentenced to life without parole.

10. North Carolina college student Janet Danahey set fire to a bag of party decorations as a prank in front of an exterior door to her ex-boyfriend's apartment. To Danahey's surprise, the apartment building caught fire and four people died in the blaze. Danahey pled guilty to four counts of felony murder.

These cases are indeed troubling. The New York Times featured the Holle case in a story portraying the felony murder doctrine as out of step with global standards of criminal justice. Some readers will recognize the Stamp case as one that criminal law textbooks use to illustrate the harshness of the felony murder rule. Janet Danahey's supporters present her case as an indictment of the felony murder doctrine.

What should be done about such cases? If the felony murder doctrine is designed to produce results like these, it should indeed be abolished. Yet the three cases described in our first paragraph show that felony murder liability is sometimes necessary to satisfy our intuitions about deserved punishment. Thus it should be possible to identify a principle distinguishing justified from unjustified impositions of felony murder liability and to reform the felony murder doctrine in light of that principle. That is the aim of this book.

I should be clear from the outset about two limits on the scope of my argument. First, this book is concerned only with murder liability for unintended killing in the context of felonies. It is particularly concerned with homicides that would not be graded as murder without the killer's participation in a felony. Thus, it does not address how participation in a felony should affect the grading or punishment of intentional or grossly reckless killings that would otherwise be punished as murder.

This limit gives rise to a second essential limit on the scope of the argument: this is not a book about the death penalty. Without venturing an opinion on the legitimacy of capital punishment generally, I proceed from the premise that American law reserves it for the most heinous murders. The Supreme Court has determined that capital punishment is not applicable to those who participate in fatal felonies without intent to kill or gross recklessness (sometimes referred to as "extreme" or "depraved" indifference to human life). It has not explicitly required that felons who kill must also act with intent to kill or gross recklessness, but this is the logical implication of its holdings. Many death penalty jurisdictions treat participation in certain felonies as aggravating circumstances that can trigger capital liability for intentional killings. Such feloniously motivated intentional killings are beyond the scope of this book. This book is concerned only with the imposition of very significant sentences of incarceration for killings that would not be murder without a felonious motive. It argues that murder liability is justified for some feloniously motivated inadvertent killings. It does not justify capital punishment in such cases.

CONSTRUCTIVE INTERPRETATION

In proposing principled reform of felony murder rules rather than abolition, this book serves to make the best of the felony murder doctrine. By this, I mean two things.

First, like it or not, we are stuck with the felony murder doctrine. To be sure, we could get along without it. We could abolish it and still capture many of the most culpable cases with rules conditioning murder on grossly reckless killing. Yet we are not likely to do so. Legislatures have persisted in supporting felony murder for many decades in the teeth of academic scorn. Although most states revised their criminal codes in response to the American Law Institute's Model Penal Code, only a few accepted the ALI's proposal to abolish felony murder. Today, criminal justice policy is less likely than ever to be influenced by academic criticism, as candidates for office find themselves competing to appear tougher on crime than their opponents. Moreover, as we shall see, in adhering to the felony murder doctrine, legislatures appear to be in tune with popular opinion. Felony murder liability is not going away and we are going to have to learn to live with it.

Second, we should try to make felony murder law better. If felony murder liability is ever justifiable, felony murder rules can be improved by confining them to the limits of their justifying principles. Even readers who disagree with those justifying principles should prefer that felony murder liability be applied in a principled way rather than haphazardly.

Accordingly, this book endeavors to make felony murder "the best it can be," in Ronald Dworkin's phrase. Dworkin's influential account of normative legal argument aims to integrate the concerns of lawyers, judges, legislators, citizens, and legal theorists in a single conversation. Although participating in the legal process in different roles, each of these speakers addresses a common question: how to make the law of some particular political community "the best it can be." For Dworkin, legal reasoning is always at once positive and normative. It draws on the authority of institutions that are accepted as legitimate, while remaining mindful that the legitimacy of those institutions is always open to question and always contingent on the acceptance and commitment of other legal actors. Thus an appeal to settled authority never suffices to warrant a legal claim. Such claims also depend upon some normative legal theory; yet such legal theories are always also interpretations of the history of some particular legal system.

Dworkin uses the concept of "principle" to capture this complex ambiguity of legal argument between claims about how the law is and claims about how it should be. For Dworkin, rules and precedents are never self-interpreting. Decision makers cannot apply sources of law without first constructing some more general account of their purposes and values, and of how they fit within the larger body of law that makes them authoritative. These justifying accounts of the purposes and values of rules within a particular legal system are what Dworkin calls "principles."

Many other legal theorists have also argued that applying rules involves constructing their purposes. But Dworkin adds that these ordering purposes are best understood as moral principles rather than as instrumental policies. In other words, laws are best understood as setting up cooperative institutions to share the burdens of achieving public goods. Thus interpreted, laws have an additional basis of legitimacy beyond their democratic pedigree and their efficacious consequences: they can be defended as fair, and therefore worthy of the support even of those who opposed them.

A jurisprudence of principle is one kind of "constructive interpretation." Constructive interpretation is a two-part process of judgment as to how to continue a practice. A constructive interpreter must first construct a purpose that explains and justifies the history of that practice and, second, apply that purpose to resolve dilemmas that arise within that practice. The validity of a constructed purpose depends upon two different considerations: how well it fits with or explains the past history of the practice and how normatively appealing it is on its own terms. Thus a legal principle is valid insofar as it explains authoritative legal sources in a way that seems just. The principles that "best" reconcile these two considerations of fit and justice make the law "the best it can be."

Although Dworkin insists that the conventions of legal reasoning require that lawyers and judges treat legal questions as having "right answers," his account of legal reasoning explains why legal theorists often describe law as indeterminate. After all, the principles that best fit enacted laws may not be the ones that seem most just. Indeed, the descriptive question of the content and validity of enacted laws is not entirely separable from the question of their justice. As Dworkin admits, the constructive interpretation of law is a "creative" process depending on something like aesthetic judgment. Both judges and legislators have discretion, but neither is free to develop laws whimsically; both should maintain the integrity of the legal system even as they improve it. Every legal actor, in every legal decision, should strive to make the legal system as a whole the best it can be.

Because constructive interpretation involves a trade-off between explanation and justification, a constructed purpose need not "fit" past practice perfectly. Like any legitimating rationale it has critical as well as justificatory implications. An interpretive legal theory may demand some reforms as the price of maintaining integrity with the principle justifying the remainder of the law.

(Continues...)

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Excerpted from Felony Murder by Guyora Binder Copyright © 2012 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Stanford University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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