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Felony Murder: Cruel and Unusual

Natalie Rozmus

Edited by Saniya Koppikar, Jia Lin, and Vedanth Ramabhadran


Legal scholars have long studied the purpose of punishment within the criminal justice system. Typically, their works present conflicting opinions from law enforcement officials on the aims and justifications of criminal punishment. However, there generally is consensus that some form of basic punishment is necessary and justified via the agreed importance of “retribution, incapacitation, deterrence, rehabilitation, and reparation” [1]. Embodied within this viewpoint is a presumption that, whenever people commit crimes, the punishment society dolls out should be proportionate to the severity of the offense. But, what about instances where an initially minor or nonviolent offense results in serious damage? What responsibility or criminal liability does a person accept when engaging in, for example, non-violent criminal activity? One maxim addressing this question is the felony murder doctrine, which charges an individual with murder if that person commits a felony resulting in a death, even if the death was unintended. However, in the era of mass incarceration, is this doctrine truly a vehicle of justice? Or, is it more accurately a vehicle of cruel and unusual punishment? The felony murder doctrine’s current applications have significantly strayed from the intentions of its creation. Therefore, lawmakers should take a close look at the effects of the felony murder doctrine, and consider repealing or modifying the law to uphold the integrity of its original intent. 

The felony murder doctrine in the United States is derived from the United Kingdom’s common law felony murder law of constructive malice, which originated in the English court case Regina v. Serné. There, a boy was burned to death when his father, Leon Serné, set fire to his property to collect insurance [2]. In his book The Law of Homicide, Roy Moreland analyzes the decision and legal analysis of Judge Stephens who presided over Regina v. Serné. Stephens “instructed the jury, inter alia” ascertaining “that instead of saying any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause death, done for the purpose of committing a felony which caused death should be murder”[3]. Stephens’ specificity clarifies the purpose and original intent of the felony murder doctrine as it was first created in the United Kingdom. Ultimately, he expresses uncertainty over the details and scope of the doctrine, “doubt[ing] that “intent to commit a felony constitutes malice aforethought.” He clarifies that “the felony itself” must be “an act of such kind as to fall within…an actual intent to kill or do serious bodily harm, or knowledge that the act done will probably do so although such result is not desired” [3]. Thus, felony murder was created to ensure criminal accountability when serious damage, or death, occurs as a result of someone engaging in a dangerous felony. The originating language and precedent necessitate that malice aforethought, meaning intention to harm, exists. According to Stephens’ 1952 opinion, the law certainly strayed from the original intent in practice. In fact, the principle was abolished from English common law in 1957, and replaced by The Homicide Act of 1957, which clarifies Britain’s legal perspective on various degrees of murder and what punishment is possibly pursuant. This Act describes the abolishment of felony murder: when someone kills in conjunction with another offense, there must be “malice aforethought (express or implied)” for it to be considered a killing [4]. Moreover, in instances where a death occurs as a result of resisting arrest for a crime, the killing “shall be treated as a killing in the course of furtherance of an offense” [4]. Since the purpose of felony murder is largely achieved via negligent manslaughter laws, the law then becomes increasingly superfluous and its penalties draconian. 

Despite its abolishment from English common law decades ago, the felony murder doctrine continues to be enshrined in United States criminal law as an exception to typical criminal justice provisions. The most significant and agreed-upon issue with the English version of the felony murder rule was that many minor offenses began to be classified as felonies [3]. Accordingly, judges, juries, legal scholars, and law enforcement officials grew increasingly aware of the extremity and severity of the rule’s application. Moreover, inconsistencies arose as some courts determined it was only reasonable to target cases where the felony was violent and dangerous. Still, some argued that if a death occurred as a result of the crime, its arguable levels of danger and violence were irrelevant to the question of punishment. When the felony murder rule became a territory of disproportionate punishment for a given crime, the UK repealed it and clarified intent. 

The evolution of this doctrine in United States law has progressed similarly to its corruption in the UK; addressing the issue therefore is becoming increasingly important. Thomas Hoecker tracks the early transformation and use of the felony murder doctrine in his Law Forum article “Felony Murder in Illinois,” arguing that the doctrine was originally utilized in Illinois in a way that was in line with the original intentions and interpretation. However, over time it has become disjointed and a “distortion of [the] proper relationship between moral culpability and criminal liability” [5]. Linking the death penalty and felony murder suggests the potential for overly harsh punishment and further abuse of the doctrine. Moreover, the list of felonies, specifically forcible felonies, has expanded greatly in the United States since the enactment of the doctrine. Per the expansion of felonies, there are an increasing number of instances wherein felony murder charges may be sought. Hoecker suggests that “in theory, the felony murder rule has obliterated the crime of voluntary manslaughter, despite the draftsman’s ineffectual attempt to prevent this result by excluding voluntary manslaughter as an underlying crime [5]. These exclusions were made to protect individuals indicted for felony murder from overly harsh and severe punishment. So, any overreach from these intentions surpasses the requirements for charging an individual with felony murder. To Hoecker’s argument, it is important to acknowledge the connection between felony murder pursuant to the death penalty and cruel and excessive punishment. Certainly, this is important in states that continue to use the death penalty; however, even where the death penalty is not pursued, the egregious psychological effects of long-term imprisonment or life sentences also can be disproportionate in certain felony murder cases. Thus, there are arguable conflicts between the felony murder doctrine and the Eighth Amendment to the U.S. Constitution, which expressly safeguards citizens from “cruel and unusual punishment” [6]. These inconsistencies are dangerous to the protection of rights in criminal proceedings and must be examined and repaired in alignment with the Eighth Amendment.

Lawmakers, therefore, should consider repealing this doctrine or, in lieu of complete abolishment, consider significant statutory modifications to the law. Among the most essential modifications would be those requiring evidence of clear intent and an undisputable causal connection between the perpetrator of the crime and the occurring death. Moreland suggests that these changes would update the doctrine to be consistent with Judge Stephens’s original interpretation of the English common law. While Stephens’s argument “requires knowledge of the danger” to consider a death result of a felony a killing, other judges have subsequently ascertained that a “killing [is] murder unless the prisoner as a reasonable man could have seen no possibility of death in his act” [3]. The contrast in opinion illustrates the root of the felony murder doctrine problem. What necessitates the criminal liability that felony murder suggests? Stephens’s argument aligns with the idea that a causal connection to a death is necessary to punish the crime as a killing. However, the contrary opinions shift the burden of proof of knowledge and state of mind onto the defense by arguing that intent only matters if there is proof that the defendant could not possibly have foreseen death in the outcome of their crime. The argument establishes that when committing a felony, there is an inherent risk of danger, violence, bodily harm, and death. If someone chooses to commit a felony, they are therefore accepting culpability for the realization of any of these risks. Regardless, our criminal justice system is defined by the Fifth Amendment clause that all defendants are guaranteed due process; therefore, defendants are “innocent until proven guilty” [7]. To align with both the Fifth and Eighth Amendments, significant and necessary changes include specified language that expands the qualifications of charging felony murder to include (1) a justified causal connection and (2) indisputable intention between the perpetrator, the crime, and the effects of the crime. 

Ultimately, the justifications for punishing crime are contingent on an agreement that the punishment matches, but does not exceed the crime. The current enshrinement of the felony murder doctrine makes it possible to charge perpetrators of felonies with a murder that they are not causally connected to. It is cruel, unusual, and, therefore, unjustifiable to sentence an individual to an extreme punishment that does not match the crime they committed. Thus, the felony murder doctrine is no longer a vehicle for criminal culpability and accountability, but rather a tool for suppression and an infringement on criminal rights. Therefore, lawmakers should consider following England's abolishment of the doctrine or reworking the American version via the inclusion of intention and causal connection clauses to specify a felony perpetrator's responsibility for resulting deaths via intention and causal connection.

 

[1] Crime Prevention & Criminal Justice Module 7 Key Issues: 2- Justifying punishment in the community, United Nations Office on Drugs and Crime (2019), https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-7/key-issues/2--justifying-punishment-in-the-community.html#:~:text=There%20are%20five%20main%20underlying,%3B%20deterrence%3B%20rehabilitation%20and%20reparation.

[2] Regina v. Serne Central Criminal Court United Kingdom, Justia Law, https://law.justia.com/cases/foreign/united-kingdom/16-cox-c-c-311.html (last visited Mar 5, 2024).

[3] Roy Moreland, Law of Homicide (1952).

[5] Thomas R. Hoecker, Felony Murder in Illinois, 1974 U. ILL. L.F. 685 (1974).

[6] Constitution of the United States, Eighth Amendment, Constitution Annotated, https://constitution.congress.gov/constitution/amendment-8/.

[7] Constitution of the United States, Fifth Amendment, Constitution Annotated, https://constitution.congress.gov/constitution/amendment-5/.



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