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Differential Victimization: Efficiency and Fairness Justifications for the Felony Murder Rule


Jonathan Klick


University of Pennsylvania Law School; Erasmus School of Law; PERC - Property and Environment Research Center

Nuno M. Garoupa


University of Illinois College of Law

December 14, 2006

FSU College of Law, Public Law Research Paper No. 244

Abstract:     
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

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Date posted: December 15, 2006  

Suggested Citation

Klick, Jonathan and Garoupa, Nuno M., Differential Victimization: Efficiency and Fairness Justifications for the Felony Murder Rule (December 14, 2006). FSU College of Law, Public Law Research Paper No. 244. Available at SSRN: http://ssrn.com/abstract=951795 or http://dx.doi.org/10.2139/ssrn.951795

Contact Information

Jonathan Klick (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
2157463455 (Phone)
Erasmus School of Law ( email )
3000 DR Rotterdam
Netherlands
PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Nuno M. Garoupa
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
HOME PAGE: http://works.bepress.com/nunogaroupa/
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