The Culpability of Felony Murder

97 Pages Posted: 30 Jul 2011

See all articles by Guyora Binder

Guyora Binder

University at Buffalo Law School

Date Written: 2008


Legal scholars are almost unanimous in condemning felony murder as a morally indefensible form of strict liability. This Article provides the long-missing principled defense of the felony murder doctrine. It argues that felony murder liability is deserved for killing negligently by means of a violent or apparently dangerous felony involving an additional malign purpose independent of physical injury to the victim killed. This claim follows from the simple idea that the guilt incurred in attacking or endangering others depends on one’s reasons for doing so. The article develops this idea into an expressive theory of culpability that assesses blame for harm on the basis of two dimensions of culpability: (1) the actor’s expectation of causing harm and (2) the moral worth of the ends for which the actor imposes this risk. It contrast this theory of culpability with the narrowly cognitive theory of culpability prevailing among criminal law scholars. It shows that the cognitive theory is motivated by the aspiration to achieve a value-neutral criminal law. Next it shows that it is impossible to assign culpability for a particular injury like homicide without evaluating actor’s ends. In addition, the article shows that an expressive theory better fits the overall pattern of American criminal law doctrine than does a purely cognitive theory of culpability. Finally, it argues that liberal political theory does not require that criminal law maintain value neutrality.

Keywords: criminal law, felony murder, culpability, homicide, harm, utility, expressive theory of law

Suggested Citation

Binder, Guyora, The Culpability of Felony Murder (2008). Notre Dame Law Review, Vol. 83, p. 965, 2007-2008, Buffalo Legal Studies Research Paper No. 2012-009, Available at SSRN:

Guyora Binder (Contact Author)

University at Buffalo Law School ( email )

528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-2673 (Phone)
716-645-2640 (Fax)

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