Felony Killings and Prosecutions for Murder: Exploring the Tension Between Culpability and Consequences in the Criminal Law
| Author | Melanie Myers |
| Date | 01 March 1994 |
| DOI | 10.1177/096466399400300108 |
| Published date | 01 March 1994 |
| Subject Matter | Articles |
FELONY KILLINGS AND
PROSECUTIONS FOR MURDER:
EXPLORING THE TENSION
BETWEEN CULPABILITY AND
CONSEQUENCES IN THE
CRIMINAL LAW
MELANIE MYERS
University of Calafornua, Berkeley
FUNDAMENTAL
PRINCIPLE of our criminal jurisprudence, con-
ventionally understood, is that the blameworthiness of the offender is
~L essential to criminal responsibility and punishment (Morissette v. United
States, 1952:250-1; Kadish, 1987:265). This principle comes into conflict,
however, with the law’s attention to the consequences of prohibited conduct.
The tension between the focus on culpability and the concern with the
consequences is widespread. It is found in the law of attempts and other inchoate
crimes, it appears in the doctrine of impossibility, and it is manifested in the law
of homicide, in the felony murder and misdemeanor-manslaughter rules (see
Kadish, 1993). Examining the felony murder rule provides a close look at this
tension, as the degree of blameworthiness of offenders in felony killings may
contrast greatly with the gravity of the effects of their conduct. This article
considers the felony murder rule, in order to explore both the tension between
culpability and consequences in the criminal law and the significance of this
tension for the administration of justice.
In every homicide, the death of the victim occasions for the operation of
SOCIAL &
LEGAL STUDIES (SAGE, London, Thousand Oaks and New Delhi),
Vol. 3
149-
(1994), 149-179
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the criminal law. Under the standard law of homicide, however, the harm done
to the victim does not determine the specific crime for which the offender may be
prosecuted and punished. Rather, the criminal law defines a ranking of homicide
offenses and a corresponding hierarchy of penalties that are ordered according to
the cuipability of the offender. In assessing culpability, the law considers the
mental state with which the fatal act was done and the circumstances surrounding
the act (see Dix and Sharlot, 1973/1987: 378).
Homicides are divided into three principal categories: excusable or justifiable
homicide, manslaughter and murder. In excusable and justifiable homicides,
such as accidental killings and killings committed in self-defense, the killer is not
considered criminally liable for the death. Manslaughter comprises both
instances in which the offender negligently or recklessly engages in conduct
involving a substantial risk of death, and when the offender kills intentionally in
circumstances that mitigate the seriousness of the offense, as in a sudden eruption
of violent anger in response to provocation by the victim. Manslaughter is
distinguished from murder by the offender’s lack of ’malice aforethought’, a term
denoting a life-endangering state of mind (see Perkins, 1934).
Malice aforethought was incorporated into the penal codes of the United
States as the defining element of murder with the adoption of the British
common
law of crimes in the late eighteenth century. Precise explication of this
mental state has proved elusive, but generally it is taken to mean either the
intention to kill another or, what is considered equivalently culpable, a kind of
extreme recklessness. This is commonly described as the wanton and willful
disregard of the high probability of death, manifesting extreme indifference to
the value of human life (see, for example, People v. Washington,1965). State penal
codes ordinarily divide the crime of murder into two or more degrees. First
degree murder, the most heinous, is characterized by the additional mental state
component of deliberation and premeditation (see People v. Aaron,1980; Model
Penal Code, 1980 : 16, 20-6). In most states that impose the death penalty, first
degree murders are the only offenses eligible for capital punishment (Bureau of
Justice Statistics, 1992).~
The felony murder rule, another part of United States jurisprudence that was
adopted from British common law, departs strikingly from this framework in
which penalties are based on culpability. It defines killings that occur in the
course of dangerous felonies as murders; either malice aforethought is eliminated
as an element of the offense or its existence is presumed from the commission of
the underlying felony. Most state penal codes enumerate particular felonies that
make collateral homicides punishable as first degree murders. In addition, the
majority of states classify felony killings as capital crimes, either by labeling them
as such or by including them in a list of aggravating circumstances in the death
penalty statute. In sum, the felony murder rule has three central functions: it
dispenses with the requirement of malice aforethought for murder liability; it
upgrades the crime to murder in the first degree; and it initiates eligibility for the
death penalty (see Zimring and Zuehl, 1986: 31 ).
The structure of homicide law in California is typical of penal organization in
American jurisdictions. Murder is defined according to the common law
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formulation, as an unlawful killing with malice aforethought (Penal Code section
187). Once a murder is established, it is raised to murder in the first degree if it is
committed by one of the listed means or if it is proved willful, deliberate and
premeditated (Penal Code section 189).~ A homicide occurring in the com-
mission of a felony enumerated in the statute is held to be first degree murder as a
matter of law (People v. Dillon, 1983:465). Additionally, these felony murders
are classified with eighteen other ’special circumstances’ that make certain first
degree murders eligible for punishment by death or life imprisonment without
possibility of parole (Penal Code section 190.2). Indeterminate sentences of
twenty-five years to life in state prison are imposed on offenders convicted of
first degree murder in cases in which special circumstances are not applicable or
not established. Those guilty of second degree murder receive indeterminate
sentences of fifteen years to life in prison (Penal Code section 190).3
In California, the felony murder rule eliminates the mental state elements
otherwise required for conviction of first degree murder and condemnation to
death. The prosecution need prove only that the defendant intended to commit
the underlying felony. For example, in an armed robbery, the specific intent to
steal, that is to permanently deprive another of property, is the mental state
required for finding the defendant guilty of first degree murder and the special
circumstance of robbery (People v. Dillon, 1983:475-6). The use of the felony
murder rule to bypass culpability requirements for murder varies among the
states. Some
reserve first degree murder for deliberate, premeditated killings and
label felony killings as second or third degree murder or as manslaughter,
reducing the applicable penalties. Others demand proof that the defendant
intended to kill for conviction of first degree murder or for imposition of the
death penalty. In contrast, many states include all felonies as predicate offenses
for first degree murder and capital punishment eligibility, and presume malice
aforethought from the commission of the predicate felony (see Model Penal
Code, 1980: 32-6, 40-2; Bureau of Justice Statistics, 1992).
The felony murder rule also operates as a principle of vicarious liability.
Responsibility for the fatal act of one felon is attributed to all the participants in a
felony, regardless of their individual degree of knowledge of or control over the
others’ acts.4 Accomplices not present at the scene of a killing may be convicted
of first degree murder and, in some circumstances, accomplices may be punished
by death for homicides committed by a co-felon (for example, Tison v. Arizona,
1987). Furthermore, a few states, including California, impose first degree
murder liability on surviving felons for the killing of a participant in the crime by
a police officer or other person resisting the felony (for example, People v.
Caldwell, 1984).
In sum, the felony murder rule functions as a rule of constructive murder,
basing liability on the offender’s intentional commission of a dangerous felony
and the contemporaneous occurrence of a death. As a rule of vicarious liability, it
applies to all participants in a felony, among whom the range of possible
culpability is great. Thus it inverts one of the central principles of traditional
criminal jurisprudence, that punishment for a crime should be proportional to
the offender’s individual culpability and that culpability be assessed by the state
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of mind in which the prohibited act is committed. The felony murder rule, in
contrast, establishes a regime in which punishment is measured solely by the
consequences of behavior and the offender’s mental state as to the killing is
irrelevant. It describes a conception of criminal responsibility in which the
offender is held strictly liable’ for creating dangerous conditions in particular
circumstances - a conception that in the end relies on causation as the ground of
responsibility.
The challenge the felony murder rule presents to the conventional understand-
ing of criminal jurisprudence has engendered considerable controversy. The state
and federal supreme courts have pronounced divided and conflicting opinions
regarding issues of the fairness, constitutionality and permissible scope of the
rule (compare, for example, Tison v. Arizona, 1987, and Enmund v. Florida,
1982). Criminal justice officials commonly defend the rule, reasoning that those
who commit felonies are ’bad people’ who...
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