Copyright (c) 2008 All rights reserved. http://works.bepress.com/david_crump Recent documents in David Crump en-us Sat, 08 Nov 2008 04:35:59 PST 3600 http://works.bepress.com/david_crump/7 http://works.bepress.com/david_crump/7 Thu, 06 Nov 2008 14:23:13 PST 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 virtually all jurisdictions continue to follow it in some form. It is important to recognize, however, as many academics have not, that different jurisdictions have developed very different formulations of the felony murder doctrine. There are good formulations of the rule, and there are bad ones. Ultimately, the merit of the criticisms depends upon which version of the rule is under discussion.For example, a felony murder statute that requires the defendant to have committed a "dangerous act" is effective to tie criminal liability much more closely to the defendant's individual blameworthiness than a version that depends instead upon a "dangerous felony" in the abstract. Although critics often charge that the felony murder rule separates liability from blameworthiness, the better formulated rule can withstand this criticism and, indeed, contributes to proportional grading of homicidal offenses. The better formulation also achieves other purposes. Although critics disparage deterrence-based rationales on the theory that the types of accidents involved in felony murders are unlikely to respond to deterrence, the better-written rule applies to cases in which the potential for deterrence is at its highest. Also, a better written statute is less likely to carry the vices of ambiguity and vagueness. Some of the newer critics of the felony murder rule charge, in effect, that it is underinclusive. It allegedly results in convictions of some bad actors while other bad actors whose conduct is as bad or worse are exonerated. The better written version of the rule, however, does not produce this kind of disparity. Others suggest that the rule is overinclusive, in that it allegedly convicts individuals whose conduct does not deserve to be labeled murder. Again, the better rule targets individual blameworthiness, and thus it is less vulnerable to this criticism. Still other academics invoke the philosophy of moral luck: the principles that assertedly should guide us in attaching consequences to moral actions that produce unintended results. The better written felony murder rule ties consequences to expectations, and therefore it is less subject to criticisms based on moral luck.As before, the author concludes that the question whether to keep the felony murder rule is a matter of policy that can be argued either way. The decision should not be made, however, with a blind eye toward the arguments that support the doctrine. And it should not be made without consideration of the precise formulation of the rule that is at issue. David Crump Criminal Law and Procedure