Tuesday, October 06, 2009

Felony Murder and the Merger Doctrine

I like to share legal oddities, so here is one.

In Felony murder, there is no mens rea requirement in the traditional sense. If you accidentally kill (take that for granted, assume it is proven) a person while committing a felony (or in some jurisdictions, a certain set of felonies, rape, burglary...) it is treated as first degree murder.

First degree murder is otherwise only an intentional killing with premeditation of some sort--the highest form of culpability (and, consequently, it is a capital crime, meaning life in prison without parole or a death sentence).

Is someone who accidentally kills while robbing someone morally the same as a person who kills on purpose with premeditation? Is he more culpable than someone who intentionally kills without premeditation (second degree murder)? This rubs me the wrong way. Why not charge for just the accidental death and the robbery separately? That's what he's actually guilty of. It's as if we multiple the culpability for the offenses, not add them.

This is complicated. What if Joe rapes someone and a week later kills that same person accidentally? What if instead he rapes someone and she has a heart condition and she dies (accidentally) during the attack? Why should these be fundamentally different?

The issue becomes more hairy with the merger doctrine. Some kinds of felonies (assault with a deadly weapon) are really just a part of murder. Because they are essentially an element of murder, the question of guilt turns on the normal issues related to murder (was it intentional, was it premeditated, etc.). Okay, that makes sense (if you don't have the merger doctrine, then almost all murders are just felony murders, which makes all the rules about murder pretty much moot).

But given that, if you if assuault someone with a gun and kill them, that means you get the traditional analysis (was it intentional?, was it premeditated?). And if you accidentally kill them while robbing their house (you accidentally knock over a candle while escaping and it kills someone because of the ensuing fire) you don't get that analysis (you just are guilty of felony murder). Is the latter person more culpable than the former? Clearly no. But we treat them as such; it makes an enormous difference in his sentence.

There are historical reasons we have felony murder, but whatever the case, this is what we are left with in many jurisdictions.

4 comments:

Ann Marie said...

Just curious, but isn’t there mens rea, at least to some degree, in felony murder simply by the fact that the felony act itself was premeditated? In the illustration you use of Joe raping someone and then accidentally killing her a week later, verses Joe raping a woman who has a heart condition who dies during the attack, you ask why these should be fundamentally different. In the first scenario the woman’s death was not in any way related to a criminal act – when she died there was no intention to cause harm. In the second scenario there is intention to cause harm via the rape. While the result of death may not have been anticipated or intended, there was still premeditated intention to cause harm in the second illustration, and there was no such intent in the first.
I think it reflects our society’s belief that we are responsible for the consequences of our deliberate actions or the choices we make, even if those deliberate actions result in unintended or unforeseen outcomes. The same is true for the second illustration of a robbery where the robber knocks over a candle that ultimately results in the loss of life. The analysis of whether or not it was intentional is applied to the felony act. Did he intend to commit robbery? If so, then he is responsible for the harm brought about by the act of committing the robbery whether or not all of the harm caused was intended beforehand or not. Is he morally as culpable as someone who premeditates a murder? Personally I would say no, but I would also say they are far more culpable than someone who had no intention of causing harm who accidentally kills. In the former there is malicious intent and in the latter there is not.

Ron said...

very insightful...thank you for posting!

James Day said...

So many points could be argued, I do by enlarge agree with you Ron. My only concern is perhaps to some degree mirrored in Ann Marie’s comments.
In the state of Ohio, the F.M. Rule has been abandoned altogether, in its place involuntary manslaughter, studies of appeal rulings from other states suggest the “intentional “element is not universally held as superfluous.
Supreme Court of Illinois.(February 17, 2000.)
In People v. Perez, 189 Ill.2d 254, 725 N.E.2d 1258 (2000).
According their verdict on a Felony Murder Appeal;
“And here the court concluded its discussion with the black-letter rule of law: “In order to hold defendant accountable for Pedro’s murder, defendant must have, with the “requisite intent”, aided or abetted Rivera prior to or during the commission of the offense. Without knowledge of any common criminal design to harm Pedro, defendant could not “intentionally” aid in the scheme’s commission.”
The Doctrine of Merger that is used in the U.S “arguably” further bars the way to a principle being charged under the F.M.R rather than a strait forward murder charge, since to do so would potentially allow a murder conviction on less than the full mens rea requirement. Namely, an intention to kill, not merely to intend G.B.H. To ignore the Doctrine of Merger is to forgo the consideration of Manslaughter altogether? The Doctrine of Merger stands in opposition to that happening.
In general in most states, the “mens rea” requirement for the felony suffices for the substantive charge of murder (which you rightly draw attention to).I have little sympathy for the armed bank robber who finds himself charged with murder. But Ann Marie rightly draws attention to the person who does not have a justified predicate offence for a F.M charge in the first place. The Doctrine of Merger (with all its problems) is an invaluable tool in stopping inherently nonviolent and misdemeanours acting as predicates for the substantive offence. Many times in a group situation it is unclear whether the accused has committed any offence whatsoever? Guilt by association is the inference? In other cases, it is unclear whether the accused was an accessory to the crime, or an accomplice? This point is important. The law is wrong to suggest that the accessory (maybe less culpable than an accomplice) is someone not at the scene of the crime (I hired a hit man to murder my wife, therefore I am less culpable?)You could be an accessory even if you were present at the scene; if that is the case then Manslaughter seems the appropriate charge, not murder?

James Day said...

So many points could be argued, I do by enlarge agree with you Ron. My only concern is perhaps to some degree mirrored in Ann Marie’s comments.
In the state of Ohio, the F.M. Rule has been abandoned altogether, in its place involuntary manslaughter, studies of appeal rulings from other states suggest the “intentional “element is not universally held as superfluous.
Supreme Court of Illinois.(February 17, 2000.)
In People v. Perez, 189 Ill.2d 254, 725 N.E.2d 1258 (2000).
According their verdict on a Felony Murder Appeal;
“And here the court concluded its discussion with the black-letter rule of law: “In order to hold defendant accountable for Pedro’s murder, defendant must have, with the “requisite intent”, aided or abetted Rivera prior to or during the commission of the offense. Without knowledge of any common criminal design to harm Pedro, defendant could not “intentionally” aid in the scheme’s commission.”
The Doctrine of Merger that is used in the U.S “arguably” further bars the way to a principle being charged under the F.M.R rather than a strait forward murder charge, since to do so would potentially allow a murder conviction on less than the full mens rea requirement. Namely, an intention to kill, not merely to intend G.B.H. To ignore the Doctrine of Merger is to forgo the consideration of Manslaughter altogether? The Doctrine of Merger stands in opposition to that happening.
In general in most states, the “mens rea” requirement for the felony suffices for the substantive charge of murder (which you rightly draw attention to).I have little sympathy for the armed bank robber who finds himself charged with murder. But Ann Marie rightly draws attention to the person who does not have a justified predicate offence for a F.M charge in the first place. The Doctrine of Merger (with all its problems) is an invaluable tool in stopping inherently nonviolent and misdemeanours acting as predicates for the substantive offence. Many times in a group situation it is unclear whether the accused has committed any offence whatsoever? Guilt by association is the inference? In other cases, it is unclear whether the accused was an accessory to the crime, or an accomplice? This point is important. The law is wrong to suggest that the accessory (maybe less culpable than an accomplice) is someone not at the scene of the crime (I hired a hit man to murder my wife, therefore I am less culpable?)You could be an accessory even if you were present at the scene; if that is the case then Manslaughter seems the appropriate charge, not murder?