In Search of Intent: Responding to the Retributivist Criticism of Felony Murder with Knobe’s Theory of Intentional Action
Abstract
Beginning with Joshua Knobe’s study of 2003, research has shown that three factors determine whether people call an action intentional: (1) the actor’s mental state, (2) the morality of the conduct and (3) the outcomes caused by that conduct. Importantly, when conduct is morally bad, and especially when it causes a morally bad outcome, people are more likely to call the action intentional. This phenomenon is called the Knobe Effect.
Although some argue that the Knobe Effect represents a mistaken perception of intent—i.e., that it is a mistake to base one’s perception of intent on anything but the actor’s mental state—Knobe argues that intent refers to more than a mental state. He argues that, in light of the Knobe Effect, whether an action is intentional depends on the morality of the actor’s conduct and the outcomes caused by that conduct, in addition to the actor’s mental state.
This article uses Knobe’s theory to respond to the most common retributivist criticism of felony murder. Some retributivist scholars maintain that the felony murder rule is unjustified because it authorizes punishment for murder without a sufficient showing of intent. On their view, only intentional killings are culpable enough to merit punishment for murder because intent determines culpability.
Knobe’s theory responds to this criticism by suggesting a way for states to limit the felony murder rule to intentional killings. Under Knobe’s theory, certain cases of felony murder involve intentional killings, even when the defendant did not subjectively intend to kill or recklessly endanger, because a killing can be intentional by virtue of the immorality of the conduct (a dangerous felony), the severity of the morally bad outcome (a death), and the presence of an immoral mental state regarding the death. Thus, I argue that when the felony murder rule is limited to intentional killings, it finds as much support in the retributivist theory of punishment as the traditional murder rule. Additionally, by addressing the retributivist criticism, Knobe’s theory suggests a way to eliminate felony murder’s most troublesome applications.