Murder!
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For example, a getaway driver for an armed robbery can be convicted of murder if one of the robbers killed someone in the process of the robbery, even though the driver was not present at and did not expect the killing. In jurisdictions that also have the death penalty, felony murder usually qualifies as a capital crime; however, there are independent constitutional limitations on the imposition of the death penalty on those guilty of felony murder.
In the United States, felony murder is generally first-degree murder, and often a capital offense. When the government seeks to impose the death penalty on someone convicted of felony murder, the Eighth Amendment imposes additional limitations on the state's power to do so. The death penalty may not be imposed if the defendant is merely a minor participant and did not actually kill or intend to kill. However, the death penalty may be imposed if the defendant is a major participant in the underlying felony and exhibits extreme indifference to human life.
According to most commentators, the common law rule dates to the twelfth century and took its modern form in the eighteenth century, at which time it was adopted by most of the United States. Because the rule requires no intent to kill, or even to do bodily harm, it has been criticized as unjust. Accordingly, it was abolished in the United Kingdom in 1957. Every jurisdiction in the United States incorporates some form of the felony murder rule as part of its definition of murder. Some other common-law jurisdictions do as well.
In some jurisdictions (such as Victoria, Australia), the common law felony-murder rule has been abolished but replaced by a similar statutory provision.
Murder Origin
The concept of felony murder originates in the rule of transferred intent, which is older than the limit of legal memory. In its original form, the malicious intent inherent in the commission of any crime, however trivial, was considered to apply to any consequences of that crime, however unintended. Thus, in a classic example, a poacher shoots his arrow at a deer, and hits a boy who was hiding in the bushes. Although he intended no harm to the boy, and did not even suspect his presence, the mens rea of the poaching is transferred to the actus reus of the killing.Some commentators regard this as a legal fiction whereby the law pretends that the person who intended one wrongful act, also intends all the consequences of that act, however unforeseen. Others regard it as an example of strict liability, whereby a person who chooses to commit a crime is considered absolutely responsible for all the possible consequences of that action. Lord Mustill regards the historical rule as a convergence of these views.
Murder Description
However, the actual situation is not as clear-cut as the above summary implies. In reality, not all felonious actions will apply in most jurisdictions. To "qualify" for the felony murder rule, the felony must present a foreseeable danger to life, and the link between the underlying felony and the death must not be too remote. If the receiver of a forged check has a fatal allergic reaction to the ink, most courts will not hold the forger guilty of murder. Furthermore, the merger doctrine excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault, but so do many cases of manslaughter. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another.To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery, rape or forcible deviant sexual intercourse, arson, burglary, kidnapping, and felonious escape. Federal law specifies additional crimes, including terrorism and carjacking.
There are two schools of thought concerning whose actions can cause the defendant to be guilty of felony murder. Jurisdictions that hold to the agency theory admit only deaths caused by the agents of the crime. Jurisdictions that use the proximate cause theory include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause tests to determine if the chain of events between the felony and the death was short enough to have legally caused the death.
Felony murder is typically the same grade of murder as premeditated murder. In many jurisdictions, felony murder is a crime for which the death penalty can be imposed, provided that the defendant himself killed, attempted to kill, or intended to kill. For example, three people conspired to commit armed robbery. Two of them went in to the house and committed the robbery, and in the process killed the occupants of the house. The third person sat outside in the getaway car, and he was later convicted of felony murder. But because he himself neither killed, attempted to kill, or intended to kill, he cannot be executed even though he is guilty of felony murder.
Murder Examples
Murder Illustrative example
The following example employs general principles of law in the United States for the purpose of illustration.The Doe Gang attempts to rob a bank. John, Jane and Richard Doe will do the actual robbery. Mary Doe will act as lookout, and Joe Schmoe waits around the corner with the getaway vehicle. Mike Meek is a bank employee who is to make sure the alarm is not sounded. The robbery is a violation of both federal and state law, and can separately be prosecuted under each without incurring double jeopardy. Both jurisdictions employ the felony murder rule: for purposes of this example, we assume that federal law employs the proximate cause theory and state law the agency theory.
During the course of the robbery, the Bank Manager suffers an aortic dissection and dies almost instantly. A teller hits the silent alarm in the confusion. The police arrive, and Mary surrenders promptly. When the police enter the bank, John, Jane and Richard open fire: Jane kills an officer while Richard's wild shot kills John. Joe Schmoe hears the shots and flees. He does not see a child playing in front of the car, and accidentally kills her. Later, officers' bullets kill Richard and the teller behind him. The result of all this carnage is as follows:
Mary is probably not guilty of any felony murder, and will probably not be charged in any event, because she surrendered to authorities before any violence.
The manager's death is almost certainly not felony murder, because the connection to the robbery is too remote.
The officer's death is both first-degree murder for Jane, and felony murder for Joe and Mike, under both federal and state law. Jane may be charged with felony murder as a tactical matter if the ballistics are inconclusive.
John's death is felony murder for all three under federal law and probably state law. Some states might not allow it because he was a participant in the crime.
The teller's death is felony murder for all three survivors under federal, but not state law, because they were killed by a non-participant. Note that even though Joe had ceased to participate in the robbery at this point, his flight counts as a continuous transaction, so the rule continues to apply.
Richard's death is felony murder under federal, but not state law, for the same reasons. In practice, many prosecutors are reluctant to make the charge when an accomplice is killed by police.
The child's death is felony murder for all three in both federal and state court. Again, the fact that Joe was trying to flee does not mitigate the crime.
Jane is subject to the death penalty, even if the ballistics are inconclusive, because she attempted and intended to kill.
Joe is subject to the death penalty because he killed, albeit accidentally.
Mike escapes the death penalty, because he neither killed nor intended to kill.
Murder Felony
The term felony is a term used in common law systems for very serious crimes, whereas misdemeanors are considered to be less serious offenses. It is principally used in criminal law in the United States legal system.The distinction between a felony and misdemeanor has been abolished by some common law jurisdictions (e.g. Crimes Act 1958 (Vic., Australia) s. 332B(1), Crimes Act 1900 (NSW., Australia) s. 580E(1); other jurisdictions maintain the distinction, notably those of the United States. Those jurisdictions which have abolished the distinction generally adopt some other classification, e.g. in Canada, Australia, the Republic of Ireland and the United Kingdom the crimes are divided into summary offences and indictable offences.
Murder in the United States
In the United States, a felony is the higher category of criminal offenses, as distinct from a misdemeanor, which is the less serious category of offenses (although some states have done away with the felony/misdemeanor classification; for example, New Jersey designates offenses as first degree through fourth degree. A third degree offense is punishable by six months to eighteen months in jail. Some states also subdivide felonies into "classes", such as Class A through Class J or Class 1 through Class 7 felonies).Murder What is a felony and who commits one?
Crimes commonly considered to be felonies include, but are not limited to: aggravated assault and/or battery, arson, burglary, some instances of drug possession (dependent on the jurisdiction, often possession over a certain weight, based on the type of drug, is held to indicate intent to sell or distribute), embezzlement, grand theft, treason, espionage, racketeering, robbery, murder, rape, cannabis cultivation and fraud. A third offense for drinking and driving is also a felony in most states."The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories." Gonzales v. Duenas-Alvarez, 549 U.S. __ (2007) (citations omitted).
In some states, felonies are also classified according to their seriousness. The number of classifications and the corresponding crimes vary by state and are determined by the legislature. Usually, the legislature also determines the maximum punishment allowable for each felony class.
Murder Punishment
A felony may be punishable with imprisonment for more than one year or death in the case of the most serious felonies, such as murder, treason, and espionage; indeed, at common law when the British and American legal systems divorced in 1776, felonies were crimes for which the punishment was either death or forfeiture of property. In modern times, felons can receive punishments which range in severity; from probation, to imprisonment, to execution for premeditated murder or other serious crimes. In the United States felons often face additional consequences, such as the loss of voting rights in many states, exclusion from certain lines of work, prohibition from obtaining certain licenses, exclusion from purchase and possession of firearms or ammunition, and ineligibility to run for or be elected to public office. In addition, some states consider a felony conviction to be grounds for an uncontested divorce. These, among other losses of privileges not included explicitly in sentencing, are known as collateral consequences of criminal charges.Civil sanctions imposed on United States citizens convicted of a felony in many states include the loss of competence to serve on a grand or petit jury or to vote in elections even after release from prison. While controversial, these disabilities are explicitly sanctioned by the Fourteenth Amendment to the United States Constitution, a Reconstruction-era amendment that deals with permissible state regulation of voting rights.
Murder Expunction
Theoretically, federal law allows persons convicted of felonies in a federal United States district court to apply to have their record expunged after a certain period of time with a clean record. However, the U.S. Congress has refused to fund the federal agency mandated with handling the applications of convicted felons to have their record expunged. This means that, in practice, federal felons cannot have their records expunged.For state law convictions, expunction is determined by the law of the state. Some states do not allow this, regardless of the offense, resulting in class of people permanently lacking many legitimate opportunities. These people can have extreme difficulty finding a job or even a place to live, regardless of qualifications or references, which can result in their return to a life of crime.
Murder Manslaughter
The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind. This is particularly true within the law of homicide, where murder requires either the intent to kill, or a state of mind called malice, or malice aforethought, which may involve an unintentional killing but with a willful disregard for life. The less serious offense of manslaughter, on the other hand, is the taking of human life but in a manner considered by law as less culpable than murder. Manslaughter is usually broken down into two distinct categories: voluntary manslaughter and involuntary manslaughter.Murder Voluntary manslaughter
Voluntary manslaughter cases where the defendant may have an intent to cause death or serious injury, but the potential liability for murder is mitigated by the circumstances and state of mind. The most common example is the so-called heat of passion killing, such as where the defendant is provoked into a loss of control by unexpectedly finding a spouse in the arms of a lover or witnessing an attack against his or her child.There have been two types of voluntary manslaughter recognized in law, although they are so closely related and in many cases indistinguishable that many jurisdictions do not differentiate between them.
Provocation. This is a killing caused by an event or situation which would probably cause a reasonable person to lose self-control and kill.
Heat of Passion. In this situation, the actions of another cause the defendant to act in the heat of the moment and without reflection. This falls under the provocation heading. Diminished Responsibility is another defence to murder that will negate the charge down to voluntary manslaughter. An abnormality of the mind that causes the defendant to not know what he is doing at the time of the killing.
Murder Involuntary manslaughter
Involuntary manslaughter, sometimes called criminally negligent homicide in the United States or culpable homicide in Scotland, occurs where there is no intention to kill or cause serious injury but death is due to recklessness or criminal negligence.Murder Criminal negligence
Negligence consists of conduct by an individual which is not reasonable -- that is, the individual did not act with the care and caution of a reasonable person in similar circumstances. This "reasonable person" is fictitious, of course, but reflects the standard of conduct which society wishes to impose. Violation of this standard may lead to civil liability for the consequences of the negligent behavior.Negligence rises to the level of criminal negligence where the conduct reaches a higher degree of carelessness or inattention, perhaps to the point of indifference.
Murder Recklessness
Recklessness or willful blindness is defined as a wanton disregard for the known dangers of a particular situation. An example of this would be throwing a brick off a bridge onto vehicular traffic below. There exists no intent to kill, consequently a resulting death may not be considered murder. However, the conduct is probably reckless, sometimes used interchangeably with criminally negligent, which may subject him to prosecution for involuntary manslaughter: the individual was aware of the risk of danger to others and willfuly disregarded it.In many jurisdictions, such as in California, if the unintentional conduct amounts to such gross negligence as to amount to a willful or depraved indifference to human life, the mens rea may be considered to constitute malice. In such a case, the offense may be murder, often characterized as second degree murder.
In some jurisdictions, such as Victoria, recklessness is sufficient mens rea to justify a conviction for murder.
Murder Vehicular or Intoxication manslaughter
Vehicular manslaughter is a kind of misdemeanor manslaughter, which holds persons liable for any death that occurs because of criminal negligence or a violation of traffic safety laws. A common use of the vehicular manslaughter laws involves prosecution for a death caused by driving under the influence (or driving with .08% blood alcohol content), although an independent infraction or negligence is usually also required.In some US states, such as Texas, Intoxication Manslaughter is a distinctly defined offense. A person commits intoxication manslaughter if he or she operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
Intoxication manslaughter, vehicular manslaughter and other similar offenses require a lesser mens rea than other manslaughter offenses. Furthermore, the fact that the defendant is entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense. For example, in Texas, to prove intoxication manslaugher it is not necessary to prove the person was negligent in causing the death of another, only that they were intoxicated and operated a motor vehicle and someone died.
Murder Misdemeanor manslaughter
In the United States, this is a lesser version of felony murder and covers a person who causes the death of another while committing a misdemeanor -- that is, a violation of law that does not rise to the level of a felony. This may automatically lead to a conviction for the homicide if the misdemeanor involved a law designed to protect human life. Many violations of safety laws are infractions, meaning that a person can be convicted regardless of mens rea.Felony murder and the death penalty
The Eighth Amendment does not prohibit imposing the death penalty for felony murder. The Supreme Court has created a two-part test to determine when the death penalty is an appropriate punishment for felony murder. Under Enmund v. Florida, 458 U.S. 782 (1982), the death penalty may not be imposed on someone who did not kill, attempt to kill, or intend that a killing take place. However, under Tison v. Arizona, 481 U.S. 137 (1987), the death penalty may be imposed on someone who was a major participant in the underlying felony and acted with reckless indifference to human life.Murder Enmund v Florida
Enmund was a 5-4 decision in which the Court applied its capital proportionality principle to set aside the death penalty for the driver of a getaway car in a robbery-murder of an elderly Florida couple. While Enmund sat outside in the getaway car, his accomplices Sampson and Jeanette Armstrong rang the doorbell of Thomas and Eunice Kersey, who lived at a farmhouse in central Florida. When Thomas Kersey answered, Sampson Armstrong held him at gunpoint while Jeanette took his money. Eunice came out with a gun and shot Jeanette, wounding her. Sampson shot back and killed both of the Kerseys. The Armstrongs took all the Kerseys' money, then they went back to the getaway car Enmund was driving.Enmund and the Armstrongs were indicted for first-degree murder and robbery. The judge instructed the jury that, under Florida law, killing a human being while engaged in the perpetration or in the attempt to perpetrate a robbery is first-degree murder. Enmund and Sampson Armstrong were convicted of first-degree murder. At a separate penalty hearing, the trial judge found that the murders were committed for pecuniary gain and were especially heinous, atrocious, or cruel, and that no statutory mitigating factors applied, and then sentenced Enmund to death. On appeal the Florida Supreme Court rejected Enmund's contention that his death sentence was inappropriate because he did not kill or intend to kill the Kerseys.
Justice White ruled that the Eighth Amendment forbade Florida from imposing the death penalty on an offender such as Enmund who "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed."
Murder Tison v Arizona
Tison, like Enmund, was a 5-4 decision in which the Court qualified the rule it set forth in Enmund. Just as in Enmund, the Tison Court applied the proportionality principle to conclude that the death penalty was an appropriate punishment for a felony murderer who was a major participant in the underlying felony and exhibited a reckless indifference to human life.This case stems from an infamous prison break during the summer of 1978. Gary Tison was serving a life sentence at the Arizona State Prison in Florence for killing a prison guard, and his wife and three sons planned to break him and his cellmate Greenawalt out. On July 30, 1978, they entered the prison with an ice chest full of guns, locked the visitors in a closet, and freed Gary Tison and Tison's cellmate. The group hid out in an isolated house for two days, and then they made their way toward Flagstaff in a white Lincoln. Along the way, one of the Lincoln's tires blew out, and so the group decided to flag down a car and steal it. Tison's son Raymond flagged down a passing car while the elder Tison, the other two Tison boys Donald and Ricky, and Greenawalt laid in wait. Eventually the Lyons family -- John, Donnelda, two-year-old Christopher and fifteen-year-old Theresa -- stopped to assist.
While Raymond was showing John Lyons the flat tire, the other Tisons and Greenawalt emerged from the brush. Raymond forced the Lyons into the Lincoln, and then he and his brother Donald drove the Lincoln down a service road. Meanwhile, the other Tisons transferred their belongings into the Lyons' car, keeping the Lyons' money and guns. Gary Tison shot out the radiator on the Lincoln, and forced the Lyonses out. John Lyons began begging Gary Tison for his life; Gary Tison mentioned he was "thinking about" killing the Lyonses. Gary told Raymond and Ricky to go back to the Lyons' car and get some water. According to Raymond, while they were gone, Gary started shooting the Lyonses; according to Ricky, the shooting began once they returned with the water. Both agreed that they had returned in time to watch the elder Tison and Greenawalt kill the Lyonses.
Several days later, the Tisons and Greenawalt were apprehended at a police roadblock. A firefight broke out. Donald Tison was killed at the scene; Gary Tison was wounded and escaped into the desert where he later died. The two remaining Tison brothers were later tried individually for capital murder in the deaths of the Lyonses. The murder charges were predicated on Arizona's felony murder statute, which provided that killings that occurred during a robbery or kidnapping were first-degree, death-eligible murder. The Tison brothers were convicted. At a separate sentencing hearing, three aggravating factors were proved -- the Tisons had created a grave risk of death to others, the murders were committed for pecuniary gain, and the murders were especially heinous, cruel, or depraved. The Arizona Supreme Court upheld their death sentences. Then the Supreme Court decided Enmund. The Tison brothers brought a collateral attack on their sentence, claiming that Enmund required their death sentences to be struck down. The Arizona Supreme Court rejected this argument, asserting that the dictates of Enmund had been satisfied because the intent requirement of Enmund could be inferred from the fact that death was a foreseeable result of participating in a dangerous felony.
Justice O'Connor concluded that the death penalty would be appropriate for a murder like the one the Tisons had been convicted of if it could be shown that the defendant was a major participant in the underlying felony and had acted with reckless indifference to human life.
Proportionality and Felony Murder
The Court's proportionality principle has three components, two of which are objective and one of which is subjective. The objective evidence the Court looks for is the legislative judgment of the states and the behavior of sentencing juries; the subjective evidence the Court looks for is the extent to which a particular death penalty serves the goals of retribution and deterrence. Examining nearly the same question a mere five years apart, the Court came to two different conclusions -- that the Eighth Amendment allows the death penalty for felony murder in some cases but not others, and that the dividing line is the situation presented by Tison.Murder Legislative Judgments of the States
In Coker v. Georgia, 433 U.S. 584 (1977), the Court had rejected the death penalty for rape because only one state -- Georgia -- allowed that punishment. Accordingly, the task for the Court was to count the number of states that allowed the death penalty for felony murder to see if the death penalty was a comparatively rare sanction for that crime.This enumeration was not as simple as it might seem at first. In 1982, 36 states authorized the death penalty. In four, felony murder was not a capital crime. In 11 others, proof of some culpable mental state was an element of capital murder. In 13 states, aggravating circumstances above and beyond the fact of the murder itself were required before imposing the death penalty. This left eight states -- out of 36 -- allowed the death penalty for merely participating in a felony in which a murder was committed. The Court concluded that this evidence "weighs on the side of rejecting capital punishment for the crime at issue"--felony murder for a minor participant who did not actually kill anyone or intend to kill anyone.
By 1987, the counting of the states had shifted. In response to Enmund, four states had modified their capital punishment statutes to reject the death penalty for murder committed in the course of a felony when the participant exhibited reckless indifference to human life. Nevertheless, the Court observed in Tison that of the states that authorized the death penalty for felony murder, only 11 forbade it even for major participants in the felony who exhibited reckless indifference to human life. By the time of Tison, some state supreme courts had expressly interpreted Enmund to allow the death penalty in these cases.
Murder Sentencing Decisions of Juries
"The jury... is a significant and reliable objective index of contemporary values because it is so directly involved" in the criminal justice system. In Enmund the Court recited that of 362 appellate decisions since 1954, only 6 involved a death sentence for a nontriggerman convicted of felony murder, and all 6 executions took place in 1955. This was comparatively rarer than death sentences for rape, of which there had been 72 between 1955 and 1977. Also, as of October 1, 1981, there were 796 people on death row in the United States, of whom only 3 had been sentenced to death absent a finding that the defendant had actually killed someone or intended that a killing take place. In Tison, however, the fact that since Enmund, state appellate courts continued to review and approve death sentences for defendants convicted of felony murder who were major participants in the underlying felony and had exhibited extreme indifference to human life persuaded the Court that juries still considered the death penalty an appropriate punishment for at least some defendants convicted of felony murder.Murder Retribution and Deterrence
Faced with the objective evidence suggesting that legislatures and sentencing juries did not uniformly reject the death penalty for all defendants convicted of felony murder, the Court had to limit the death penalty to a discrete and narrow category of felony murder defendants based on its estimation of which category would best effectuate the goals of retribution and deterrence. The Enmund Court stressed that the propriety of the death penalty must be measured in light of Enmund's own conduct. The Tison Court added that historically, the individualized determination incorporates an assessment of the mental state with which the defendant commits a crime, because a more culpable mental state merits a more severe punishment. In Woodson v. North Carolina, 428 U.S. 280 (1976), the Court had struck down a mandatory death penalty statute because it failed to provide for individualized consideration at sentencing. The rule fashioned by Enmund and Tison accommodated this concern by ensuring that only felony murder defendants who had a sufficiently culpable mental state received the death penalty.In an earlier case the Court had remarked that "capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation." The Tison rule retreats from this belief with its implicit assessment that the death penalty can deter even those who act recklessly. "A narrow focus on the question of whether or not a given defendant intended to kill... is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers." In the Court's estimation, "reckless indifference to the value of human life may be every bit as shocking to the moral sense as an intent to kill." Imposing the death penalty on a major participant in a felony who exhibits reckless indifference to human life is justified because of the interest in expressing retribution; imposing it on someone who intends to kill serves deterrence.
Murder Those Who Do Not Intend to Kill Do Not Deserve the Death Penalty
Justice Brennan concurred in the result in Enmund but dissented in Tison because he believed that there was a measurable difference between one who acts intentionally and one who acts merely recklessly. Both cases had one crucial fact in common -- neither Enmund nor the Tison brothers had committed an act of murder. Enmund had been in the getaway car; the Tison brothers had been fetching a jug of water for the Lyon family. If the death penalty is to be reserved for the worst murderers, Brennan believed in maintaining the distinction between an intentional act and a reckless one. "It is precisely in this context -- where the defendant has not killed -- that a finding that he or she nevertheless intended to kill seems indispensable to establishing capital culpability." Yet the law had traditionally regarded reckless behavior to be less blame worthy than intentional behavior, because it recognizes the "freedom of the human will an a consequent ability and duty of the normal individual to choose between good and evil." Because Enmund had not intended to kill the Kerseys, the Court had struck down his death sentence as not measurably contributing to either the goal of retribution or of deterrence. For Brennan, then, it was incongruous for the Court to hold in Tison that putting someone to death who had acted recklessly would.Brennan also faulted the Court for ignoring the states that had abolished the death penalty altogether when counting the states that authorized the death penalty for felony murder. "It is critical to examine not simply those jurisdictions that authorize the death penalty in a given circumstance, but those that actually impose it." None of the 65 executions that had taken place after Enmund were carried out on a felony murderer who had not killed or intended to kill.
