Reform and Reception

Reform and Reception

The presumption in § 210.2(1)(b) is a compromise, and the larger history of felony-murder reform explains why the Code stopped where it did. England abolished felony-murder liability by statute in 1957, providing that a killing in the course or furtherance of another offence is murder only if it was done with the same malice aforethought that murder requires when no other offence is involved.¹ The Code's drafters would have liked to follow that example, but they thought abolition "impolitic," and so they kept a felony-based route to murder in softened form.² The softening is what makes the compromise defensible on the drafters' own terms. Their commentary reasons that engagement in a listed felony will frequently justify a finding of extreme indifference, often enough to warrant presuming it, yet liability still depends on that finding, so a murder conviction rests on the actor's attitude toward human life and the felony alone does not supply it.³ Because a presumption can be answered with evidence, the Code keeps the felony's special place without giving up its commitment that murder requires culpability toward the death.⁴

The case for abolition rests on doubts about the old rule's rationale. The traditional justification is that a felon has a bad state of mind and has caused a bad result, so the gap between the harm intended and the death produced deserves little attention. Criminal law ordinarily refuses to hold a person liable for a result that differs greatly from the one intended, and felony murder cannot be defended as a rough substitute for depraved-heart murder, since the available figures show that accidental killings do not occur disproportionately often even in the felonies called inherently dangerous.⁵ Holmes illustrated the point with a chicken thief who shoots at the birds and accidentally kills a man hidden in the chicken-house. The theft does not make the shooting any likelier to kill, so if the aim is to prevent accidental deaths the law should punish accidental killing with firearms, and if the aim is to prevent theft, singling out thieves for murder when a death happens to occur is no better than punishing one thief in a thousand by lot.⁶

The Code's commentary answers the usual defense of the rule in two parts. Experience gives no reason to think that accidental homicides occur disproportionately often in connection with the specified felonies, and it remains indefensible in principle to apply the sanctions reserved for murder without at least a finding that the actor's conduct manifested extreme indifference to the value of human life.⁷ Statistics support the first part. In Enmund v. Florida the Supreme Court relied on the commentary's comparisons of robbery statistics, each of which showed that only about one-half of one percent of robberies resulted in a homicide.⁸ The deterrence rationale fares no better, because the number of killings during felonies is low, the share of those that are not already punishable is smaller still, and felons are unlikely to hear the rule's deterrent message in the way courts assume.⁹

That critique reaches the presumption as well, in a gentler form. The presumption works only if engagement in a listed felony makes extreme indifference probable, and a critic who doubts that felonies raise the risk of accidental death doubts the inference too. What the Code adds is an exit: because the inference is a presumption and not a definition of the offense, a defendant whose evidence raises doubt about conscious disregard of a substantial risk of death can contest it, and the felony alone then no longer carries the mental state.¹⁰

Jurisdictions that reconsidered felony murder responded to the same criticism in several ways, and only the last of these follows the Code.

• Some abolished the rule outright. Michigan did so under its common law in People v. Aaron, and Hawaii and Kentucky did so by statute.¹¹
• Some required proof of a culpable mental state toward the death. Vermont requires malice, which may be inferred from evidence that the defendant set in motion a chain of events likely to cause death or great bodily injury or acted with extreme indifference to the value of human life, and Delaware requires recklessness for first degree murder and criminal negligence for second degree.¹²
• Some kept the doctrine but limited who can be convicted under it. New York, for example, gives a participant an affirmative defense where a joint venturer, rather than the defendant, committed the act that caused the death.¹³
• A few adopted the Code's rebuttable presumption. A modern accounting reports that only one state has done so, and New Hampshire's statute, as recorded in People v. Burroughs, makes the defendant guilty of second degree murder if the presumption of recklessness and extreme indifference is not rebutted.¹⁴

These responses leave the doctrine sturdier than its critics might have hoped. Most jurisdictions still accept felony murder, generally with one or more limits, and total abolition has been rare even among states that adopted modern codes.¹⁵ The contrast with the misdemeanor-manslaughter rule, which recodification frequently abolished, supports the expectation that felony murder will survive in somewhat limited form for many years.¹⁶ Some states also continue to impose strict liability on a proximate-cause theory that requires only foreseeability, as the Illinois Supreme Court did in Dekens.¹⁷

This history supplies context rather than a rule to recite, but it guards against two misreadings. The Code's presumption is a deliberate middle position between the common-law rule and abolition, so an answer under the Code never stops at the fact that a listed felony was underway. And an answer set in a jurisdiction whose law is unspecified should not treat the Code's presumption as the majority approach, because few states have adopted it. Counts of this kind shift as legislatures recodify, so the figures themselves should be held loosely. The last section turns the Code's pieces into a sequence for working a problem.