Differential Victimization: Efficiency and Fairness Justifications for the Felony Murder Rule
University of Pennsylvania Law School; Erasmus School of Law; PERC - Property and Environment Research Center
Nuno M. Garoupa
Texas A&M University School of Law; Catholic University of Portugal (UCP) - Católica Global School of Law
December 14, 2006
FSU College of Law, Public Law Research Paper No. 244
The felony murder rule would appear to be an anomaly in the common law. It represents one of the very few instances in criminal law where the element of intent is waived. Criticism of the rule is almost uniform among scholars and commentators, yet it endures in most jurisdictions throughout the United States. Typically, critics assert the rule's longevity is the result of political forces that make it difficult to change laws that make criminal prosecutions easier. Others claim the rule fills some psychological need to mete out retribution when harm occurs to innocent parties. If a justification for the rule is offered, it generally focuses on the deterrence properties of the rule, however empirical research suggests the rule does little to deter felonies or felony murders. We offer a model in which the felony murder rule serves to deter crimes against relatively weak victims, who would otherwise be more attractive targets of crime in the absence of the rule. This model predicts only a relatively modest decrease in felonies, as perpetrators substitute away from relatively weak victims toward less vulnerable victims.
Number of Pages in PDF File: 17
Keywords: crime, deterrence, equal protection, homicide
JEL Classification: D63, H23, K00, K14, K42
Date posted: December 15, 2006
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