The Felony Murder Doctrine Revisited: A Proposal for Calibrating Punishment That Reaffirms the Sanctity of Human Life of Co-Felons Who Are Victims

Abstract

The common-law felony murder rule, simply stated, is that if a person kills another in doing or attempting to do an act amounting to a felony, the killing is murder. A felony murder in most states is graded as first degree murder and can lead to the death penalty. People v. Stamp, exemplifies the felony murder rule in its strictest application, and illustrates that a killing during the course of a felony, whether accidental or intentional, equals first degree murder. However, the felony murder rule operates in direct opposition to a fundamental principle of criminal law -- liability ought to reflect culpability.

In this article, the author discusses states’ adoption of either an agency approach to felony murder or a proximate cause theory of felony murder. The author argues that the agency approach does not recognize the death of a co-felon as the taking of a life that has value. This article examines the felony murder causation liability issue by analyzing the differences between the agency approach and the proximate cause approach to felony murder. The article concludes by proposing that states amend their felony murder statutes in an effort to effectuate the proximate cause theory of liability. The author suggests that such an approach could provide a better way to calibrate punishment in a proportionate way that values the lives of co-felons who are victims. He believes that such calibration would better serve to deter felons who might kill while also reaffirming the sanctity of human life, even the life of co-felons who may be killed.

Keywords: felony murder statutes, co-felons, criminal law, culpability, criminal liability

JEL Classification: K10, K14