Concept

Criticism and Reform

Common-law felony murder

Criticism and Reform

The rule studied in this chapter has drawn two kinds of criticism, and each has produced its own response. The first is conceptual: the doctrine says that it supplies malice, and critics ask whether that description fits what the rule actually does. The second concerns the factfinder, because a rule that fixes malice in advance takes away the jury's chance to judge the felon's real attitude toward human life. Courts have answered mostly by narrowing the rule, through the dangerous-felony limit and the causation and timing requirements already covered. Reformers have gone further and proposed replacing the conclusive substitution with a presumption that the jury can weigh. The conceptual dispute comes first below, since the reform proposal is easier to follow once the dispute is clear.

Is Malice Really Implied?

The traditional statement of the rule is that an intent to commit a felony supplies implied malice.¹ That phrasing keeps faith with the definition of murder as a killing with malice aforethought, because malice stays on the list of what must be shown and the felony's mental state is treated as proving it. The prosecution establishes that the defendant intended the felony, the law treats that intent as establishing malice, and no one asks what the defendant expected, wanted, or feared about the death. Because the substitution is conclusive, the defendant cannot answer it with evidence of care, good intentions, or surprise at the result.

A second view holds that this description is a label that hides what the rule does. An intent to rob or to burn tells a factfinder something about the defendant's wish for property or destruction and nothing about the defendant's attitude toward life, so the step from one to the other is not a real inference. A conclusion that no evidence can rebut operates as a rule of substantive law, and the substantive rule is that a killing in the course of a dangerous felony is murder. On this account malice drops out of the case altogether, and courts that adopt it say the doctrine makes malice irrelevant.

The two views differ in vocabulary and in how a court explains the verdict, and they converge on the result. Under either one, a felon who neither intended nor foresaw a death is guilty of murder once the felony and the causal link are shown. The criticism lands at that point, because murder carries a stigma and a punishment that the law otherwise reserves for people who kill with a culpable attitude toward life. The implied-malice view covers the gap with a fiction, and the irrelevance view states the gap openly. Both invite the same reform instinct, which is to return to the factfinder the question the rule answers in advance.

Students lose this issue by treating the defendant's lack of malice as an argument available against felony murder, since neither description leaves room for it.

Model Penal Code Alternative

The Model Penal Code responds by replacing the conclusive substitution with a presumption. Under § 210.2(1)(b), a homicide is murder when it is committed recklessly under circumstances manifesting extreme indifference to the value of human life, and that recklessness and indifference are presumed when the actor is committing, attempting, or fleeing from robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape. The Code therefore keeps a mental state about life as an element of the crime, namely recklessness of an extreme kind. The felony no longer supplies that mental state by operation of law, and it serves as evidence from which the jury may find it.³

The difference in mechanism is the whole point of the proposal. A presumption of this kind lets the jury treat the felony as sufficient proof of extreme indifference without requiring it to do so, and the prosecution keeps the burden of proving the element. Two things follow. The presumption reflects the ordinary experience that a person who commits a violent felony usually shows disregard for whether others live or die, so in typical cases it produces the same murder verdict the common-law rule would. The presumption also leaves room for the unusual case, in which the defendant can offer evidence that the conduct did not manifest indifference and the jury can act on it. The enumerated list limits the presumption to violent felonies, which parallels the dangerous-felony limit at common law.

The Code's approach should not be confused with abolition of the felony's significance. The felony still carries weight toward a murder verdict, and what changes is who decides whether that weight is enough. Students who describe the Code as imposing a conclusive presumption have attributed the common-law rule to it, and a short statement of the contrast is the safest way to avoid that error on an exam.

Is Malice Really Implied?

Murder at common law requires malice aforethought, and the felony-murder rule convicts a felon of murder for a death the felon may never have intended. A court applying the rule must therefore say what has become of the malice requirement, and courts give two different answers. The question surfaced in People v. Aaron, where trial judges had told juries that a finding of intent to rob, or proof that deaths occurred during an arson, was enough for first-degree murder, and the Michigan Supreme Court asked whether the intent to commit the underlying felony may satisfy the malice element or whether the trier of fact must find malice some other way.⁵ The court limited its inquiry to whether the common-law rule, which lets proof of the intent to commit the felony stand for the mental element of murder, should continue to be recognized.⁶ The opinions in that case, and the courts that have followed them, divide over how to describe what the rule does, and the two descriptions are set out below.

The first description keeps malice on the list of elements. Its premise is that the mental state required for the felony, such as an intent to rob or to burn, is a different thing from the mental state required for murder, but that the law permits the second to be proved conclusively by the first.⁷ The malice that results is called implied rather than express, and the label is meant to show that the rule imposes a mental state on certain killings rather than dispensing with one.⁸ Another opinion in Aaron put the same point in terms of definition: the doctrine may be said to ascribe or supply malice, yet the meaning of malice stays the same, and proof of intent to commit a dangerous felony is simply allowed to establish that meaning conclusively.⁹ California describes its second-degree rule in parallel terms, as a substitute for one form of malice (conscious disregard for life) that leaves the malice element itself in place.¹⁰ A Massachusetts concurrence likewise says the common-law rule rests on constructive malice, defined as the intent to commit the underlying felony.¹¹

The second description calls the first a fiction. A separate opinion in Aaron reasoned that once the felony intent conclusively satisfies the prosecution's burden, the prosecution is relieved of proving malice at all, so the defendant's state of mind toward the killing is irrelevant and the offense requires only a felony or attempted felony and a killing causally connected to it.¹² Listing intent to commit a dangerous felony as a fourth kind of malice is, on this reasoning, circular, because it defines malice to include a case in which malice is not an element.¹³ California's court adopted that analysis in People v. Dillon, observing that the Michigan court had divided on whether malice is an element and agreeing with the justice who said it is not.¹⁴ Dillon supplied the mechanism: a presumption that no evidence can rebut operates as a rule of substantive law, so saying that malice is conclusively presumed from the felony intent is a roundabout way of saying that the prosecution need prove only that intent.¹⁵ The logic is that an element is a fact the prosecution must prove and the defendant may contest, and when the contest is forbidden the fact can no longer affect the outcome. California decisions such as People v. Stamp had already described the first-degree rule as substantive law rather than an evidentiary shortcut to finding malice, because it withdraws the malice question from the jury.¹⁶

Both descriptions reach the same verdict in the standard fact pattern. The prosecution proves the dangerous felony and a death causally connected to it, and evidence that the defendant never meant anyone to die has nowhere to land, because under one description malice is already conclusively established and under the other it is not in issue. The disagreement is therefore about candor in explaining the rule, and the objection that has followed the rule applies to both explanations alike. A rule that punishes a homicide in the course of a felony without proving the perpetrator's state of mind toward the death departs from the principle that liability for a result requires a culpable mental state as to that result, and the Massachusetts court in Commonwealth v. Matchett applied that principle against a rule that would punish every homicide committed during any felony.¹⁷ The implied-malice label covers the gap between the felon's mind and the death with a fiction, and the irrelevance label states the gap openly.

The choice of description matters most when a court decides where the rule stops. A court that says the felony supplies malice has a built-in boundary, since the substitution is credible only when the nature of the felony shows disregard for human life; Matchett reasoned that where a felony lacks sufficient danger to life, forming the intent to commit it establishes no such state of mind, and the doctrine does not apply.¹⁸ A court that says malice is irrelevant has no inference to test, so the boundary has to come from the rule's purpose. California's court, following People v. Phillips in calling the rule a highly artificial concept, therefore gives it the narrowest application consistent with its aim of deterring felons from killing negligently or accidentally.¹⁹ Both routes lead to the dangerous-felony limit and the other restrictions treated earlier in this chapter, so the vocabulary changes the explanation of those limits more than the outcome in a typical case.

Hypothetical Illustration

A robber carrying a loaded gun stumbles while leaving a store, and the gun discharges and kills a bystander. The robber offers credible testimony that nobody was ever meant to be hurt. Armed robbery is a dangerous felony, so the intent to rob establishes the mental element of murder conclusively, and the testimony is immaterial whether the court calls malice implied or says it is not an element.

Change the felony and the result changes. A thief commits grand theft at a lumber yard and, in hauling off a pallet, topples a stack of boards onto a night watchman, who dies. Grand theft can be committed without creating a substantial risk of death, so the felony's intent cannot stand in for malice. The prosecution must now prove malice by an ordinary route, such as intent to kill, intent to cause serious bodily harm, or a depraved heart, and the thief's evidence that the collapse was accidental and unforeseen bears directly on whether any of them exists.

On an exam, the safe course is to name the dispute when a stem invites it and to resolve the facts the same way under either description. An argument that the defendant had no intent to kill and never foresaw the death fails against a qualifying dangerous felony with a causally connected death, and the argument gains traction only when the felony falls outside the rule, because then the prosecution must prove malice in the ordinary way. Where a stem tells you the jurisdiction's formulation, use its vocabulary; where it does not, describe both and avoid asserting which one applies.

Model Penal Code Alternative

The two descriptions of the common-law rule in the preceding section, malice implied and malice irrelevant, agree on one point: the defendant cannot show that the killing reflected no indifference to human life. The Model Penal Code changes that single feature and leaves the rest of the structure recognizable. It treats as murder a homicide committed purposely or knowingly, and also one committed recklessly under circumstances manifesting extreme indifference to the value of human life.²¹ The felony does not supply that mental state by operation of law. Instead, "recklessness and indifference [to the value of human life] are presumed if the actor is engaged … in … robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape."²² A mental state about human life therefore remains an element of the crime, and the felony becomes evidence from which the jury may find it.

The difference between a presumption and a conclusive substitution lies in who holds the last word. When the felony only presumptively proves extreme indifference, the defendant may offer evidence that the conduct did not manifest such indifference, and the factfinder, not the statute, decides whether that evidence suffices. The New Jersey Supreme Court described the Code's design in these terms in State v. Martin: instead of treating felony murder as an absolute-liability offense, the Code created a presumption of recklessness when a death occurred in the course of certain felonies, including arson, and an unrebutted presumption would support a murder conviction.²³ The reason for the design is the drafters' objection to the common-law rule, which holds an actor liable for a death irrespective of mental state and so runs against the general principle that people answer for consequences they intended, contemplated, or could foresee.²⁴ The drafters called the rule "a form of strict liability to which we are opposed."²⁵ A presumption meets that objection at its source, because the prosecution still has a mental element to prove and the defendant still has a way to contest it, while the list of enumerated violent felonies keeps the presumption aimed at conduct that ordinarily shows disregard for whether others live.

That objection gained force because the setting that once made the rule tolerable had disappeared. At common law every felony was punishable by death, so it made little difference whether the actor was convicted of murder or of the underlying felony, and the rule's main use was to reach a homicide committed during an attempt that failed, since attempts were then punished only as misdemeanors.²⁶ Later, as legislatures created a wide range of statutory felonies, many of them minor and carrying penalties far below those for murder, the same rule produced startling results, such as murder liability for a seller of liquor in violation of a felony statute whose purchaser fell asleep on the way home and died of exposure.²⁷ Two different reforms answered the problem. England, where the doctrine began, ended it: the rule was a fixture of English common law until 1957, when Parliament declared that an unintentional killing during a felony would be classified as manslaughter.²⁸ The Code's solution keeps murder available, since it recommends abolishing felony murder as an independent basis of liability except to create a rebuttable presumption of malice for killings during a felony, and most states have not yet followed that proposal.²⁹ The English route therefore removes the murder label from an unintended felony killing as such, while the Code's route leaves murder in play and requires the jury to be satisfied about the defendant's attitude toward life.

Hypothetical Illustration

An arsonist burns a vacant warehouse to collect insurance money. Before lighting the fire, he walks the building twice, checks the lot for vehicles, and phones the security company to confirm that no one is on site. A trespasser, a woman sheltering in a back office whom the arsonist never saw, dies in the blaze. Arson is a dangerous felony and the death is a direct result of it, so under the common-law rule the intent to burn establishes the mental element of murder, and his precautions cannot reduce it. Under the Code, arson triggers the presumption of extreme indifference, but he may present the same precautions as evidence, and the jury may find that burning a building he had good reason to think empty did not manifest extreme indifference to the value of human life.

Change one fact and the two systems converge. If the arsonist had seen a light in an upper window and lit the fire anyway, he would have nothing to rebut with, the jury would find extreme indifference, and both rules would produce a murder conviction.

Dropping the conclusive rule does not leave culpable felons unpunished for murder. The Code's commentary on causation gives an example: when a participant in a robbery shoots at a police officer with intent to kill and provokes return fire that kills a bystander, the robber who began the shooting could be charged with purposeful murder, with no felony-murder rule involved.³⁰ Murder on an implied-malice theory is likewise available when the felon's conduct shows conscious disregard for life, which explains why the two approaches usually agree in the ordinary armed-felony case.³¹ The presumption reaches even burglary, yet it remains rebuttable there, so a defendant whose entry created little danger to anyone has a realistic chance of overcoming it.³² The approaches part only at the margin, where the defendant's conduct genuinely showed no extreme indifference.

Few jurisdictions have adopted the Code's approach in full. Even among states that generally follow the Code, some keep a felony-murder rule, and New York's statute is an example.³³ New Jersey's commission first agreed with the Code's treatment, and it ultimately recommended retaining the rule while conceding that "principled justification in its defense is hard to find."³⁴ On an exam, the stem's description of the jurisdiction controls. Students lose points both by attributing the common-law rule to the Code and by assuming the Code's escape hatch exists in a common-law jurisdiction, and the first error usually takes the form of treating the presumption as conclusive.

Exam Analysis Steps

Because the result turns on whether the defendant may contest the mental state, the analysis should begin with the jurisdiction's formulation and then move to the evidence. The steps are these:

Determine whether the jurisdiction applies the common-law rule or a presumption-based rule, since the stem's description of the statute decides which analysis follows.
If the rule is presumption-based, check whether the felony is one of those that raise the presumption, namely robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape.³⁵
Ask what evidence the defendant can offer to show that the conduct did not manifest extreme indifference to the value of human life, such as precautions taken, the absence of a weapon, or the limited danger in the way the felony was carried out.
Decide whether a jury could accept that evidence; if it could, the case turns on the jury's finding, and if the facts show disregard for others' lives, the presumption holds and the result matches the common-law result.