Although scorned as irrational by academics, the felony murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the felony murder doctrine can be best justified, and confined within its justifying principles. To that end, this Article seeks to make the best of American felony murder laws by identifying a principle of justice that explains as much existing law as possible, and provides a criterion for reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor’s aims as well as the actor’s expectations, this Article proposes a dual culpability principle, which justifies imposing murder liability for killing negligently in the pursuit of an independent felonious purpose. A review of current felony murder rules reveals that most jurisdictions condition the offense on negligence through a combination of culpability requirements, dangerous felony limits, foreseeable causation requirements, and complicity standards. In addition, most jurisdictions require felonious motive through a combination of enumerated felonies, causation standards, and merger limitations. Thus, felony murder law more or less conforms to the dual culpability principle in most jurisdictions. This sufficiently validates the principle to warrant its use as a critical standard. Many felony murder laws nevertheless fall short of the principle’s demands in some respects, and this Article identifies the reforms needed in each jurisdiction. More importantly, it provides the arguments of principle and precedent that lawyers and legislators will need to advocate those reforms.
Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403 (2011).