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Reflections on Felony-Murder

NCJ Number
Southwestern University Law Review Volume: 12 Issue: 3 Dated: (1980-81) Pages: 413-429
G P Fletcher
Date Published
17 pages
When the felony-murder rule converts an accidental death into first-degree murder, then punishment is rendered disproportionate to the wrong for which the offender is personally responsible.
Under the felony-murder rule, the accused is liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and nonnegligently. One mode of thought emphasizes the taint that inheres in causing death, whether the homicide is culpable or not. The principle of tainting dates back to the origins of prosecution for criminal homicide. In 13th-century England, the assumption was that if one person caused the death of another, the killing itself upset the natural order, and some response was necessary to expiate the killing and thus to expunge the taint. The second mode of thought takes the preliminary act of wrongdoing, the felony, as a rationale for holding the felon accountable for the deadly consequences of the action. Tainting is no substitute for criteria of moral responsibility, and the principle that the wrongdoer must run the risk explicitly obscures the issue of actual responsibility for the harmful result. If some State supreme courts could find the guest statute in tort cases unconstitutional, it can be supposed that a similar denial of equal protection would infect the application of the felony-murder rule. Criminal lawyers should also consider using the sixth amendment as a weapon against the felony-murder rule. If the issue of reckless homicide is implicit in the proof of the underlying felony, then the defendant has a right to a jury trial on that substantive issue. A total of 100 footnotes are provided.


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