Published June 19, 2014
A new book by UB Law School faculty member Guyora Binder comes to the defense of one of the most-maligned features of criminal law: felony murder rules, which impose liability when certain felonies cause death.
Felony murder liability is widely scorned as irrational, says Binder, SUNY Distinguished Professor who serves as vice dean for research and faculty development at the Law School. And some of the examples he discusses seem to make that case: A bank robber convicted of felony murder after a bank employee suffered a fatal heart attack once the robber had left the scene; the driver of a stolen car convicted of felony murder after a 2-year-old darted out in front of him; a cocaine user convicted of felony murder when a companion overdosed on the drug.
Yet Binder argues that these examples are misapplications of felony murder, reflecting misunderstanding of its principled basis. He contrasts these cases with others, where felony-murder liability was properly applied: a rapist smothered a child victim in an effort to silence her; a robber fired a gun inadvertently while using it to menace a victim; a fire set in a storefront to defraud the insurance company spreads to a neighboring apartment, killing a family.
Five hundred to 600 cases each year are prosecuted as felony murder in the United States, Binder says. In by far the most common felony murder scenario, an armed robber intentionally shoots a victim or a police officer, with no provable intent to kill.
“The law of felony murder has been viewed as an extreme example of legal formalism,” Binder says. “A lot of scholars assume it doesn’t make any sense, that it’s a legacy of ancient English common law that got incorporated into our legal system after the Revolution, and that there’s no way to reform felony murder laws to make them rational.”
All three of those assumptions, he argues in “Felony Murder” (Stanford University Press), are wrong.
Binder says that, contrary to popular belief, felony murder laws are an American invention, not an import, and they were enacted by legislatures, not courts. As to the claim that these statutes are irrational, his response is: not necessarily.
“The law of felony murder is often described as, if somebody dies accidentally, you’re liable,” Binder says. “That was never the rule. Really what’s involved is a defendant’s liability for causing death negligently and for a bad reason. If we kill intentionally, a good reason can mitigate or eliminate guilt and a bad reason—eliminating a witness, say or persecuting a religious group—can aggravate it. The same is true for causing death carelessly.”
Some critics, he writes, “argue that felony-murder liability is a morally arbitrary lottery in which punishment depends on the fortuity that an unintended death occurs in the course of a felony, regardless of the felon’s culpability for that death.”
But, he says, “Consequences do matter in everyday morality. We take actual harm a lot more personally than we take risk. For example, we punish successful murders more than we punish failed attempts.”
In considering reforms of felony-murder laws, Binder disagrees with legal scholars who assert that the statutes are beyond fixing. “Because scholars have criticized felony-murder liability as utterly irrational, they are dismissing the views of the electorate and not giving legislatures and courts guidance about how to make it more rational,” he says. “They’re saying it can’t be made rational. But in fact, felony-murder law as actually applied is pretty reasonable in most jurisdictions. Where it isn’t, the challenge is to conform the law to its justifying principles.”
Binder says he hopes “Felony Murder” will be read by legal scholars, professors and law students; by judges, whose jury instructions reflect their understandings of the law; and by defense attorneys and especially prosecutors. “I really hope it influences prosecutors,” he says. “We really rely on principled decision-making by prosecutors.”
Another intended audience: thoughtful lawmakers who might have the courage to go beyond tough-on-crime rhetoric and look at logical reforms to felony murder laws. “I’d like responsible legislators to be able to say, ‘I support felony-murder liability, but there are cases where it doesn’t apply,’” Binder says. “We need to have a principled law.”