Felony-murder rule in criminal justice

Criminal Justice: Felony Murder

A person is convicted of murder if it is proven, beyond reasonable doubt, that they specifically intended the death that they caused, intended to foist serious bodily injury upon their victim, or acted recklessly, with no regard for human life (Malani, 2002). The felony-murder rule, which "allows a killing that occurs in the course of a serious felony, even an accidental death, to be charged against the felon as murder," is the only exception to the proof of intent provision that governs murder convictions (LII, n.d.). It comes into operation when death occurs either during a felony or in subsequent flight from one, and there is a direct causal connection between the death, and the felony (Binder, 2002). Like any other rule in criminal punishment, the felony-murder rule was developed with one overriding intention; to deter crime by making people shy away from committing felonies. Empirical research indicates that the felony-murder rule does little to deter crime. It ought to be abolished and replaced with a more effective alternative.

The felony-murder rule began in England under the Common Law and was at the very onset applied rather strictly - encircling any killing taking place during the commission of a "felony even if the felon is not the killer" (LII, n.d.). To this end, if a security officer attempting to thwart a bank raid shot and killed one robber, the surviving one(s) was (were) charged with the murder of his (their) colleague (LII, n.d.). Most jurisdictions have since limited the scope of the rule, making it operative only when a felony is extremely dangerous, or when death is foreseeable (Binder, 2002). Some jurisdictions have abolished it altogether (Binder, 2002). Although jurisdictions that still practice the felony-murder rule have different definitions of dangerous felonies, robbery, rape, kidnapping, and burglary come out as the typical felony murder rule-invoking crimes (Malani, 2002).

Strengths and Weaknesses of the Felony-Murder Rule

Three weighty justifications have been advanced by the rule's proponents with regard to its efficacy and practicability. First and foremost, the rule literally pushes "felons to take greater care to avoid accidental deaths when committing felonies" (Malani, 2002, p. 5). Any killing, intentional or not, that occurs in the course of a felony shifts a case from felony to murder, and consequently, attracts a higher penalty. In order to avoid this, a felon would try to execute their crime more carefully, perhaps by using weapons that are less dangerous, or by having their executions planned out with greater precision (Malani, 2002). This way, the rule instills some level of fear among felons and goes a long way towards reducing the number of accidental deaths resulting from felony crimes (Malani, 2002)

In addition to inducing greater care in the execution of felonies, the felony-murder rule drives felons to adjust their criminal activities to optimal levels (Malani, 2002). This rides on the ideology that the risk of unintentional killing increases with the number of felonies; such that, for instance, a felon who commits crime every week has higher chances of unintentionally killing a victim, than one who commits crime once every three months. The only way a felon can reduce this risk is by reducing the number of crimes they commit, which would imply that the rule would naturally reduce overall felony crime levels (Binder, 2002).

The felony-murder rule not only deters unintentional killings, but intentional ones as well (Malani, 2002). The strict liability for killings concept holds felons strictly responsible for all deaths that occur during the course of their crime, and to this end, ensures that "felons cannot escape punishment for intentional killings" (Malani, 2002, p. 5). The counter-arguments have been discussed in the subsequent subsections of this text.

The rule's proponents assume that felons are aware of the rule, and hence carry out their criminal activities, with its provisions embedded at the back of their minds (Malani, 2002). This sounds unrealistic because criminals are usually irrational. Take, for instance, a felon who sexually abuses a five-year-old; if such a person is not rational enough to realize the weight of the problems they inflict on their victims, how would they even begin to think and weigh their actions against the provisions of the felony-murder rule? if, for argument's sake, we assume that criminals are rational, there still is nothing much they can do to control crime scenes, most of which are usually highly chaotic. Even if they could, "the felony-murder rule does not substantially increase the criminal penalty for killing during a felony" (Malani, 2002, p. 6). In its absence, the state would only have to prove negligence and recklessness to charge the felon with murder (Malani, 2002).

The rule's opponents have argued that, in fact, the felony-murder rule increases crime. In the rule's absence, the state would grade punishment on an incremental basis as a felon's "mental state moves from negligence to specific intent," and a felon would be reluctant to cause any additional deaths after one accidental killing, because then, his punishment would assume a different angle -- i.e. from that of robbery to one of murder (Malani, 2002, p. 6). With the rule, however, such grading is eliminated and marginal deterrence (the disincentive to kill intentionally) diminishes after an incidence of accidental killing, simply because any additional deaths would only increase a felon's punishment from one to two murder sentences (Malani, 2002).

Suggested Reforms to the Felony-Murder Rule

The Commission of Law Review has put forward various proposals whose adoption could revolutionize the felony-murder concept and the field of murder convictions in general. The proposals have been explored in the subsequent subsections of this text, together with their strengths, and weaknesses.

i) Having recklessness incorporated "into the mental element in murder": this would bring "murder killers such as terrorists wishing to damage property who did not intentionally cause death, but who were indifferent as to whether or not, their conduct would result in a fatality" (Law Reform Commission, 2008, p.52). Moreover, this proposal would open up the concept of risk, requiring it to be unjustifiable and substantial and would, in so doing, allow for culpability assessment (Law reform Commission, 2008). The fundamental weakness draws from its flexible formulation - which would make it prone to uncertainties and open for inconsistencies in jury verdicts (Law Reform Commission, 2008).