Law Commons^™

Criminal Justice Reform And The Centrality Of Intent, Cynthia V. Ward

Faculty Publications

The nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system. These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice. But less attention has been given to reforming the substantive content of the criminal law—specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in …

A New Approach To Felony Murder In Illinois, Jason M. Cieslik

Northern Illinois University Law Review

In August of 2019, six teenagers drove to a rural area of Lake County, Illinois, in a stolen vehicle with the intention of burglarizing vehicles. Startled, the homeowner retrieved his gun, went out on the porch, and observed one of the teens approaching him, with what the homeowner determined to be a weapon. The homeowner fired his gun and killed one of the teens. The remaining five teens were charged with felony murder. At the time of this incident, Illinois applied the “proximate-cause theory” to felony murder. In response, the General Assembly amended the felony-murder rule with the intent to …

Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt

All Faculty Scholarship

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice. Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common …

Intentional Killing Without Intending To Kill: Knobe’S Theory As A Rational Limit On Felony Murder, Joseph C. Mauro

Louisiana Law Review

Felony murder authorizes maximum criminal punishment, the kind typically reserved for the most ruthless and calculating killers, for defendants who did not even intend to kill. Many retributivist scholars therefore criticize felony murder for abandoning the traditional notion that intent determines culpability and the appropriate degree of punishment. Despite widespread agreement with this criticism, however, felony murder persists in most jurisdictions. Joshua Knobe's empirical research turns this problem on its head by suggesting that intent is not just a mental state. Numerous experiments have shown, in fact, that people are more likely to call an action intentional, regardless of what …

Intentional Killing Without Intending To Kill: Knobe's Theory As A Rational Limit On Felony Murder, Joseph Mauro

Joseph C Mauro

I propose that Joshua Knobe’s theory of intentional action provides a rational way to limit felony murder so that it no longer offends traditional notions of retributive justice. Knobe’s research shows that when people view an action as morally bad, they are more likely to call it intentional. Based on this research, Knobe posits that intent refers not only a mental state, but also to whether a person’s conduct, and the outcomes it causes, are morally bad.

A common retributivist criticism of felony murder is that it does not require proof of intent. Under Knobe’s theory, however, some instances of …

Cruel And Unusual Punishment: Adult Prison For Florida's Children, Mary E. Day

Mary E. Day

The manuscript addresses whether Florida law comports with the recent Supreme Court of the United States holding in Graham v. Florida that sentencing a nonhomicide juvenile offender to life without parole constitutes cruel and unusual punishment since such a punishment lacks opportunities for the youth to rehabilitate and reform. The manuscript asserts that consequently, Florida laws allowing for the direct filing of juvenile offenders such that they are subject to incarceration in adult prisons will not likely withstand a constitutional challenge as long as Florida's juveniles are denied opportunities for reform.

Shaken Baby Syndrome As Felony Murder In North Carolina, Derick R. Vollrath

Campbell Law Review

This Article argues that the North Carolina criminal law’s treatment of Shaken Baby Syndrome should be reformed. Rather than leaving in place a legal regime that allows the state to prosecute all Shaken Baby Syndrome cases as first-degree murder, the law should distinguish between accidental and purposeful killings. If the state wishes to punish Shaken Baby Syndrome cases with special severity, the General Assembly should make this policy choice explicit. In making this argument, this Article proceeds in three parts. First, this Article examines how and why North Carolina subjects all Shaken Baby Syndrome deaths to prosecution as first-degree murder. …

Making The Best Of Felony Murder, Guyora Binder

Journal Articles

Although scorned as irrational by academics, the felony murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the felony murder doctrine can be best justified, and confined within its justifying principles. To that end, this Article seeks to make the best of American felony murder laws by identifying a principle of justice that explains as much existing law as possible, and provides a criterion for reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor’s aims as well as the actor’s expectations, this …

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …

A Distributive Theory Of Criminal Law, Aya Gruber

Publications

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …

Reconsidering The Felony Murder Rule In Light Of Modern Criticisms: Doesn't The Conclusion Depend Upon The Particular Rule At Issue?, David Crump

David Crump

Until 1985, the reasons for the virtually universal retention of the felony murder doctrine were a mystery. Academic commentators could find almost nothing good to say about the rule. In that year, however, the present author and a coauthor proposed a number of policies that arguably are served by the felony murder doctrine. Today, the debate has changed, with most commentators recognizing that there are arguments supporting the rule that some lawmakers, at least, might credit. As might be expected, however, the debate continues. By and large, academics continue to oppose the rule even while recognizing the supporting arguments, while …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

The Culpability Of Felony Murder, Guyora Binder

Journal Articles

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 …

Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit

American University Law Review

This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's …

Murder After The Merger: A Commentary On Finkelstein, Kimberly Kessler Ferzan

All Faculty Scholarship

Critics have long sought the abolition of the felony murder rule, arguing that it is a form of strict liability. Despite widespread criticism, the rule remains firmly entrenched in many states' criminal statutes. In "Merger and Felony Murder," Professor Claire Finkelstein reconciles herself to the current state of affairs, and seeks to make "an incremental improvement" to the doctrine. She offers a new test for felony murder's merger limitation, which she believes will make merger less "mysterious" and its application "substantially clearer." Briefly put, Finkelstein claims that to understand merger, we must recognize that it is an analytically necessary part …

Restructuring The Debate Over Fetal Homicide Laws, Carolyn B. Ramsey

Publications

The worst problems with the fetal homicide laws that have proliferated around the nation are quite different than the existing scholarship suggests. Critics often argue that the statutes, which criminalize the killing of a fetus by a third party other than an abortion provider, undermine a woman's right to terminate her pregnancy. This concern is overstated. Although supported by anti-abortionists, many of the fetal homicide laws embody the perspective of the so-called "abortion grays," who eschew the absolutism of the doctrinaire pro-choice and anti-abortion camps. This Article explores how a contextual view of life-taking allows us to reconcile legal abortion …

The Origins Of American Felony Murder Rules, Guyora Binder

Journal Articles

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews …

Case Note: Criminal Law—Dangerous, Not Deadly: Possession Of A Firearm Distinguished From Use Under The Felony-Murder Rule—State V. Anderson, Michael C. Gregerson

William Mitchell Law Review

This Note first briefly examines the history of the felony-murder doctrine both generally and in Minnesota. Second, this Note describes the decision and analysis in State v. Anderson, the latest case in Minnesota to deal with the felony-murder doctrine. Third, this Note concludes that in an effort to reach the right result, the court misapplied its previous precedent and left the lower courts with no clear standard for guidance in the future. Finally, this Note suggests that a workable standard might be found in limiting the application of the rule to deaths that occur in furtherance of the felony.

Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder

Journal Articles

The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the …

Meaning And Motive In The Law Of Homicide (Reviewing Samuel H. Pillsbury, Judging Evil: Rethinking The Law Of Murder And Manslaughter), Guyora Binder

Book Reviews

Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications …

Death By Automobile As First Degree Murder Utilizing The Felony Murder Rule, Greg Bailey

West Virginia Law Review

No abstract provided.

The Endurance Of The Felony-Murder Rule: A Study Of The Forces That Shape Our Criminal Law, James J. Tomkovicz

Washington and Lee Law Review

No abstract provided.

Felony-Murder Doctrine Through The Federal Looking Glass, Henry S. Noyes

Indiana Law Journal

No abstract provided.

Felony Murder And Child Abuse: A Proposal For The New York Legislature, Barry Bendetowies

Fordham Urban Law Journal

"Lisa Steinberg's head was hit so hard her injuries matched those of a person who had fallen out of a three-story window. Over the course of three months, investigators believed that Jessica Cortez was beaten numerous times with fists, a ruler, and a belt by her mother's companion who, in addition, sexually abused her. Lisa and Jessica are only two of the many New York City children who have died as a result of child abuse in recent years; at least 126 other children died at the hands of abusive adults in 1988 alone. This alarming and ever increasing statistic …

Redefining A Culpable Mental State For Non-Triggermen Facing The Death Penalty, James J. Holman

Villanova Law Review

No abstract provided.

Felony Murder And The Misdemeanor Of Attempted Escape: A Legislative Error In Search Of Correction, Peter J. Mcquillan

Fordham Urban Law Journal

This article argues that a legislative reconsideration of the New York felony murder doctrine is timely and essential. The author traces the origins of New York's felony murder statute and recent efforts to limit its scope. The author argues that the felony murder doctrine contravenes the modern philosophy of adjudication based on subjective factors such as mens rea, eroding the link between criminal liability and moral culpability.

A Comparative Review Of States' Recognition Of Reduced Degrees Of Felony Murder

Washington and Lee Law Review

No abstract provided.

Abstracts Of Recent Cases, John Welton Fisher Ii

West Virginia Law Review

No abstract provided.

Criminal Law--The Felony Murder Doctrine As Related To Drunkenness, Giles Mccarthy

Kentucky Law Journal

No abstract provided.

Criminal Law--The Felony-Murder Doctrine Repudiated, Frank Selby Hurst

Kentucky Law Journal

No abstract provided.