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Critical Analysis of Felony Murder Rule

The Felony Murder Rule is a doctrine in the common law jurisdictions. This doctrine/ rule is used when an offender kills someone in the commission of a dangerous crime (called a felony), here, the murderer, his accomplices and co- conspirators will all be found guilty of the murder even though only one person had actually killed.

This rule is/was used to broaden the scope of murder in many Nations including United Kingdom, The United States, India and various other common law nations. This rule is mainly based on the transferred intent where the intent to hurt person one still exists even when the hurt is caused to the second person.

However, this rule was abolished in many Nations including India in 1957 along with the United Kingdom stating that it was a barbaric and immoral practice where the accused are punished and imprisoned under murder even when the accused did not commit the act. This rule is now only practised in the USA. It is also that most of the accused of this rule does not have the mens rea/ intent to commit the murder.

This rule was widely criticised in many nations as most of the accused were under the age of 25 and did not have the knowledge of the murder at all. For example, Z and X commits a bank robbery, which is a felony, and during the commission Z pulls out a gun and seeing that an elderly person gets a heart attack and dies on spot, Z and X will be held responsible in this scenario.

The punishment for Felony murder is as the same as the Murder in the USA, which is 25 years to life without parole (death by incarceration) and the Death penalty in some states. The killing can be premeditated or not, but the accomplices will be held liable for the first-degree murder. In some of the Jurisdictions, the criminal liability still exists even if a person other than the felons kills the victim as was stated in the case of People v. Hernandez where the defendants were convicted of second-degree murder.

In India, this rule was often not followed strictly. However, the rule of felony- murder has all the components Abetting mentioned in Section 107 of the IPC, 1860, Criminal Conspiracy mentioned in Section 120A of the IPC, 1860 and Section 34 of IPC which states that Acts done by several persons in furtherance of common intention. This research project aims to study more on the topic of Felony Murder Rule from the perspective of the various nations.

History
The felony murder rule, first originated in the common law nation in the early 12th century and took its modern form in the late 18th centuries after the American revolution had just ended. The modern form of the felony murder arose when on 1806, in the Treatise of the Peas of the Crown, Edward East has held that:
If the act on which death ensue [is] . . . done in prosecution of a felonious intent, however the death ensued against or beside the intent of the party, it will be murder[1].

The concept of Felony murder itself began in the roots of the earliest common law nation of the England. The support for this poured in from many of the lords and the scholars like William Russel, in his treatise[2] which was published in 1819, has mentioned that:
Whenever an unlawful act, an act malum in se, is done in prosecution of a felonious intention, and death ensues, it will be murder….

Similarly, every law has its own opponents, in the year of 1834 when the first Bentham influenced First Criminal Law Reform Commission found that the law to be totally incongruous with the general principles of our jurisprudence [3]. Because of the objection the rule was not applied properly in the courts of the England.

However, William Russel, pointed out a case R v. Smithies[4]. In this case, the accused, Ellen Twamley was found guilty of setting fire to his own house, killing one person inside the house. A felony of Arson was committed and he was held guilty for it, but Russel argues that even if the death of the person inside the house was accidental, the murder could be justified based on the recklessness rather than just a felony of Arson.

This doctrine of felony murder started to take off in the mid 1830's and more relevant and more defined rules to define a crime by felony murder started to come in. thus, when there was a surge in the application of the felony murder rule in the English courts pre- dominantly in the second half of the 19th century, it was identified as a controversial and an unjust law by Justices Blackburn, Stephen and Bramwell. Stephen J. commented that:
A rule imposing murder liability for accidental killing in the course of a felony such as theft would be perfectly barbarous and monstrous.

Bramwell J., also held the rule to be a:
Preposterous and acknowledged that he will not use it. But, Blackburn J., was in support of the rule and gave an example where a rapist was found guilty of the murder for smothering and killing the victim unintentionally. In view of this criticism, in the next edition of the Russell's Treatise, he amended what he previously said and stated:
The law appears to be that anyone who deliberately attempts to commit a felony and thereby occasions death, is guilty of murder. But in this respect, the law seems unreasonable [5].

Since India was colonised by the Britishers, the primary code which governs the criminal activities, the Indian Penal Code was made by the Britishers with the help of Lord Macaulay and the Indian Law commission and came into effect on 1860. Lord Macaulay was against the inclusion the felony murder rule in the IPC and argued that the rule would be barbaric and to hold someone innocent liable would be preposterous.

Finally, the deterrent value of the rule was interpreted by Macaulay as:
Holding felons liable for causing deaths non- negligently can do nothing to deter killing but can only deter felonies, and that such a punishment lottery in an ineffective way of doing so.

In India, the rule of felony murder was not extensively used and when in 1957, the rule was abolished in England and replaced it with the death had to be least foreseeable and so had to be caused with a degree of culpability amounting at least to negligence. Following this, India also abolished the rule.

Insight into the Felony Murder Rule.
The states which do have the felony murder rule have either severely restricted the rule or they have provided defences or loopholes which can be used effectively to come around this rule and limit its application, because when felony murder is talked about, it is automatically a first degree crime (deliberately planned crime) in some of the states, which is the most serious crime while some states state that it is a second degree crime(where no planning is present but the intention to kill is present). Now let us look at the factors that constitute a Felony murder.

Elements
There are the elements which are needed by the state in order for them to convict a person under the rule of felony murder.
  1. The death of a person;
  2. The offenders should have tried to commit a dangerous felony;
  3. The death of the person should have occurred while in the process of the felony or while fleeing away from the felony crime scene[6].
  4. During the course of the felony, the offenders should have triggered the chain of events which had caused the death of a person.

Intent for Felony Murder Rule
It is of the utmost importance to notice that the felony murder does not require for the intent to kill during a felony. The rule only requires the offender to have an intent to commit a dangerous felony. If there is an intent present or a premeditated intent to kill, then the provision for Murder will take place. Thus, most of the states limit the scope of felony murder rule only to those felonies where the foreseeability of the risk is present.

So, when a felony takes place with an unintended death (even an accident), then the intent of the felony will apply to the death too, this principle is called the substituted intent. An example of the intent would be, where a person Mr. X burns down a hotel because the owner throwed him out his suite, and many people die due to the smoke inhalation, here his intent was only to set the building on fire, but due to the substituted intent, he can and will be held liable for the murder of the people who die d to smoke inhalation.

Felonies which are considered for the Rule.
The felonies should be of inherently dangerous nature and an enumerated crime. There are various felonies which are not considered as inherently dangerous, such as embezzling large amount of money, where there is no danger present to another person. Some of the main felonies which also uses the rule of felony murder are:
  1. Robbery
  2. Kidnapping
  3. Arson
  4. Sexual Assault (Rape).
  5. Burglary.
These are some of the serious offences/ felonies for which the rule of felony murder is applied.

Punishments for Felony Murder.
The Felony murder rule which is predominant in the United States of America, regards it as a part of the homicidal acts. In most of the states where the rule prevails, it is awarded the same punishment of a first- degree murder and in some states, it is given the punishments of the second- degree murder. The punishment usually varies from 25 years to life imprisonment (with not parole, in case of first-degree felony murder).

In 27 states of America, the felony murder is also considered as a Capital Offence and thus contains the death penalty. But in the case of Enmund v. Florida[7], the Supreme Court held:
That the death penalty cannot be imposed on a defendant who only had a minor role in the underlying felony, such as any individuals who did not participate in the killing, or did not intend to kill during the felony.

However, in the case where the felon has exhibited a reckless indifference to human life, then the death penalty could be considered[8] for the Felony murder.

Exceptions and Limitations to the Co- Felons.
Since this is an unjust law or a penalty which is laid on the person who is completely innocent and does not deserve the punishment of a murder, many states have exceptions to this rule, so as to the co- felon only gets what punishments he deserves and not a superficial punishment. In common law application, each and every piece of the fact is analysed and determined whether the co- felon deserves the punishment of murder or not whereas in the case of the USA[9], since it follows a Civil Code of the Legal System, the exception for the co- felon liability is provided under the N.Y. Penal Law[10].

The merger doctrine[11], which states that when a person commits a felony and fulfils the conditions of 2 or more felonies, then the offences will merge and the crime which is of a lesser culpability will drop out and the more grievous crime will take charge, thus effectively avoiding the double jeopardy. All the murders and the manslaughter include some way of assault, so when a murder takes place during the commission of a felony, then the lesser crime of assault will be dropped and the proceeding of a murder take its place. However, when an assault is done to one person and the death of another person occurs during the felony, then the merger doctrine won't take place and the felons will be prosecuted for both the crimes of assault and murder.

Liability when someone other than the defendant kills the victim
It is generally presumed under this rule that the defendants are usually guilty of the murder in the murder take place during the commission of the inherently dangerous felony. But in the case where the death of another person is not caused by the felons, but rather caused by someone else during the commission of the felony, then it was held in the case of People v. Hernandez[12], that both the defendants were held liable for a murder that they did not commit.

In this case, they reason which was given was that the mens rea which was intended for the felony was imputed into the killing of the person even if the final fatal act was not done by the felons. This case held that the felony murder can be used for any death which took place in the place where the felony took place. Another angle from which the liability of the felon can be viewed from is when the co- felon is killed by anyone in the furtherance of a felony, the other felon(s) will also be held liable for the murder of the co- felon as it was mentioned in the case of State v. Canola[13].

Felony murder rule in different nations
The felony murder rule is one of the most maligned yet legal doctrines around the world. This rule is called as monstrous and as an unsupportable legal fiction[14]. Having the criticism, it has, this rule has ceased to exist is various countries by now and the only nation which still strictly follows this rule is The United States of America. The felony murder rule which existed in the England and Wales and the Ireland, where it was first established, positively abolished the rule on the grounds that it was unjust under Section 1of the Homicide Act of 1957 in England and Wales and under the Criminal Justice Act (N.I.), 1966 in the Northern Ireland. Although the rule was totally established as a single unit from their law, the effect of the doctrine is still preserved in the common law principle of Joint enterprise, where the accused of the crime is responsible for all that they've caused during the act of crime. While in the Scotland, the rule of felony murder has never existed but, it has a similar to the felony murder rule called the Art and Part, which has the same effect to the crime as in the doctrine of felony murder.

In the Common Law nation of Australia, the Actual rule of Felony murder does not exist but rather they have their own form of the rule which has similar effects of the felony murder rule. In Section 18 (1) (a) of the Crimes Act 1900 (NSW)[15], the similar rule is called as the Constructive murder. Under this rule, The act or omission causing death must be done in an attempt to commit or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years". In the case of Ryan v. R[16], the elements of a constructive murder were laid down as follows:
  1. The accused should have caused the death of another person;
  2. In the course of or in furtherance of committing;
  3. A serious offence;
  4. The offence must have a necessary element of violence.
As we can see here, even if the doctrine of felony murder does not exist in the Common Law nation of Australia, the constructive murder and its effects still exists.

In Canada, a Common Law Nation, the Doctrine of felony murder was not directly framed in their Criminal Code, however like Australia, they have a similar law under Section 230 and 229 (c) of the Criminal Code, 1892 which has the similar effect of the Felony murder (although not as close to constructive murder). The main aim for the Canadian Law is to establish the proportionality of the punishment which is related to the crime committed.

Since it is a common law country, they are allowed to determine the result of each of the cases by properly analysing the facts, the circumstances and the nature of the crime committed. In the case of R v. Martineau[17], the court held that the:
conviction for murder requires proof beyond a reasonable doubt of a subjective foresight of death.

And in doing so, the Sections 230 and 229 (c) of the Criminal code was held unconstitutional. Section 230, which largely equated to that of the felony murder rule, stated that:
Culpable homicide when committed during the commission of a High Treason or Treason …. whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being.

Since the main ingredient of the Felony Murder rule is the Intent and the foreseeability (as mentioned in Chapter 3.2 of this paper), when the Supreme Court of Canada declared the foreseeing aspect as unconstitutional, it means that the somewhat closer to a felony murder rule had to be repealed. Section 229 (c), was a supplement law to Section 230 which stated that ought to know is likely to cause death.

Another interesting rule in the Canadian Criminal Code Law is that, the murder which takes place during the commission of another crime is technically not called murder but they are treated as murder with a maximum penalty for such offences as life imprisonment for negligence, although unlike murder it is not mandatory for a life imprisonment.

In the United States of America, the first-degree murders and the felony murders are the most serious crimes in their hierarchy following this all other variants of homicidal acts. The United States is the only country which still uses the legal doctrine of the felony murder directly, without disguising it in any other wordings. It is one of the widely criticised[18] legal features of the American laws. In the hierarchy of murders in the States, there are different degrees of murders based upon their culpability.

A felony murder is considered as a first- degree murder, which has the highest culpability. All other acts of homicide need to wilful, deliberate and premeditated; the felony murder only requires there to be a murder while the commission of felony is taking place. Over the course of the history, it has been noted that the felony murders do not have any culpability[19], because it was not intended by the felons and the judiciary are negligent in their services and do not demand either side of the case to prove the intent to kill[20]. Being one of the most disputed doctrines in the nation, it has been questioned and challenged at various states inside the USA, for constitutional validity of the doctrine.

The doctrine itself is said to have originated from England after the America had gained their independence and still continues to be a law. In the treatise[21] of W. Clark and W. Marshall, they had mentioned that:
At common law, malice was implied as a matter of law in every case of homicide while engaged in the commission of some other felony, and such a killing was murder whether death was intended or not. ... On this principle, it was murder at common law to unintentionally kill another in committing, or attempting to commit, burglary, arson, rape, robbery, or larceny. The doctrine has repeatedly been recognized and applied in this country, and is to be regarded as still in force, except where it has been expressly abrogated by statute.

While the other nations have a slightly different rule where the foreseeability of risk should be present, in the States, an unforeseeable death arising out of a non- dangerous felony would also be deemed ass a felony murder and first-degree murder charge will be filed against the felon(s)[22]. The critics attack this rule because of the modern-day evolution of law has stopped with itself and has not been applied to the Doctrine of felony murder.

In the case People v. Aaron[23], the rule was held as anachronistic legacies of morally regressive age. Some argue that this is a perfectly viable rule which is in operation has it prevents the commission of felonies, but what the fail to address is that a legal system of a country will never move forward when the innocents are the ones who are continuously being subjected under the felony murder rule. This rule is also misused by the corrupt and the maligned State assigned attorneys due to their own biased nature and the difficulty to win the case or lack thereof.

In the case of Ryan Holle[24] in Florida, the man served a life imprisonment with no parole for simply lending his car to a friend who in furtherance killed his girlfriend while on an on- going burglary. Ryan, who lent the car, was convicted of pre- meditated murder.

Felony Murder Rule in California
In the United States of America, 45 out of the 50 states have the felony murder rule active in legislation. The states of Hawaii, Massachusetts, Kentucky and Michigan have abolished the Doctrine of Felony Murder by holding them unconstitutional. In the state of California, on January 1st of 2019, California Senate Bill 1437 was passed, which gave new bounds for the felony murder rule.

It doesn't actually abolish the doctrine, but rather fine lines the usage of the doctrine in a fairer way which significantly reduces the chance of the defendant to be convicted of a first-degree murder. This bill was set rolling in 2011, when in the case of Brown v. Plata[25], the US Supreme Court ruled that the overcrowding of the prison is violative of the Eighth Amendment. They regarded felony murder rule of a useless nature which just occupies the prison space among other doctrines.

This bill wasn't the first time the California has opposed to the System, back in 1960, the Judges of the California High court have called this rule as Artificial and Barbaric and further had mentioned that rules like these erode the relation between criminal liability and moral culpability[26].

This unwise and outdated doctrine had gained a lot of traction against it after the Felony Murder Elimination Project[27] had found that about 5,206 (out of which 3,711 were first time offenders) people are serving life imprisonment without parole (death by incarceration). Out this 5,206, 68% (3,557) were African Americans and Hispanic and out of the total about 3,221 people were under the age of 25. With the statistics at hand, we can see how the courts and the District Attorneys have pumped up the number with majority of them being from the minority communities.

The changes which were brought by the Bill are:
  • He or she commits or attempts to commit a felony or is a major participant in a felony
  • One of the following circumstances also applies:
  • He or she kills a person
  • He or she acts with reckless indifference to human life
  • He or she aids and abets in first-degree murder with intent to kill
  • An on-duty police officer is killed as a result of the commission of the felony[28].

The main difference between the old and the new law is that the new law considers the intent of the defendant. In the old rule, the defendant could be convicted when the murder happens during the felony even if it was accidental, unintentional or where no knowledge by the defendant. Another important factor which the new bill brings in is that whether the defendant was or was not a major Participant of the crime that took place, based on this the culpability will be assessed.

This law not only applies for the new crimes which are happening or which will take place but rather works retrospectively too, thus freeing thousands of inmates who were wrongfully convicted with the Doctrine of Felony Murder.

Felony Murde in India
in India, the Doctrine of Felony murder was abolished in 1957 shortly after England had abolished it. But, to some extent the effects of the abolished doctrine are preserved in different sections of the Indian Penal Code, 1860. When read together, Section 34 which defines intention of several person in furtherance of a crime and the liability of one person shall extend to others who were involved, Section 107 talks about the abetment of a thing (Specifically the words needed to be used are intentionally aids, illegal omission) and Section 120A is the definition of Criminal Conspiracy, where two or more persons agree to do an illegal act, from the Indian Penal Code, gives the effect of felony murder doctrine.

In an Indian Case of Mallanna S/o Narasappa Erat and ors. v. State and anrs.[29], the Sessions Court had held that the appellants/accused have shared common intention so far as consequence of their act of murder and convicted all of the appellants under section 304 I of IPC for the Act of one person.

Conclusion
The maligned and an outdated rule of the Felony Murder, is one of the vestigial doctrines which rips of the trust of the people away from the legal systems of a nation. Doctrines like these are mainly used to get advantage over a certain group or for alleged deterrence of an act. However, the rule in its basic core itself is wrong, as the deterrence works, but not for the deterring murder, but for the deterrence of felonies.

Every person should get the punishment that they deserve, but paying for something one did not do or even think of it is pathetic. In my opinion, the courts themselves should recognise that this rule is an unconstitutional doctrine and should abstain away from the rule, so that at least in the future cases the justice won't be malicious.

The felony murder rule was born half baked; weak and was developed at a rapid pace with no room for development, now it poses as a great risk to the integrity of the constitutions and fundamental rights of Nations such as the USA. This Article has demonstrated how the Felony murder rule works in different regions and how maliciously they are used in some of the nations.

Bibliography:
  • P.S.A. Pillai, Criminal Law, (Lexis Nexis, 14th edn., 2019
  • 1 William L. Clark & William L. Marshall, A Treatise on the Law of Crimes 514-16 (Fred B Rothman & Co. 1900).
  • Ian Leader- Elliot, Revising the Law of Murder in the Indian Penal Code: A Macaulayan Reconstruction of Provocation and Sudden Fight 1 SSRN E-Journal (2010).
  • Gregory Sidak J., "Two Economics Rationales for Felony Murder" 51 CLR (2017).
  • Jason Tashea, California considering end to felony murder rule, ABA Journal (2018).
  • Guyora Binder, The Origins of American Felony Murder Rules, 57 Stanford LR 99 (2004).
  • Nelson E. Roth, Scott E. Sundby, Felony-Murder Rule a Doctrine at Constitutional Crossroads, 70 Cornell L.R. 446 (1985).
End-Notes:
  1. Edward Hyde East, A Treatise of the Pleas of the Crown 255 (P. Byrne, Law Bookseller 1806)
  2. William Oldnall Russell, A Treatise on Crimes and Misdemeanours 660- 61 (RareBooksClub 1819)
  3. Thomas Starkie, First Report from His Majesty's Commissioners on Criminal Law 29 (1834).
  4. 1 72 E.R. 999 (Old Bailey 1 83)
  5. William Oldnall Russell & Samuel Prentice, A Treatise on Crimes and Misdemeanours 761 (Bradbury, Agnew & Co. Printers 1877
  6. Wilson v. State, 68 S.W.2d 100 (1934).
  7. 102 S. Ct. 3368.
  8. Tison v. Arizona, 481 U.S. 137.
  9. Jackson v. State, 286 Md. 430 (1979)
  10. N.Y. Penal Law s. 125.25 (3)
  11. Merger Doctrine, available at: https://www.law.cornell.edu/wex/merger_doctrine#:~:text=In%20criminal%20law%2C%20if%20a,charged%20with%20the%20greater%20offense (Last Visited Nov. 17, 2020).
  12. 82 N.Y.2d 309 (1993).
  13. 73 N.J. 206 (1977).
  14. State v. Harrison, 90 N.M. 439 (1977).
  15. Crimes Act, 1900 (Act 40 of 1900), s. 18 (1) (a).
  16. (1967) HCA 2.
  17. (1990) 2 SCR 633.
  18. Felony Murder as a First-Degree Offense: An Anachronism Retained, 66 Yale L.J. (1957).
  19. Norris, The Felon's Responsibility for the Lethal Acts of Others, 105 U. PA. L. REV. 50 (1956).
  20. Crum, Causal Relations and the Felony Murder Rule, l. U.L.Q. 191, 208-10 (1956).
  21. 1 William L. Clark & William L. Marshall, A Treatise on the Law of Crimes 514-16 (Fred B Rothman & Co. 1900).
  22. Guyora Binder, The Origins of American Felony Murder Rules, 57 Stanford LR 99 (2004).
  23. 299 N.W.2d 304 (1980).
  24. 951 So.2d 834.
  25. 563 (2011) U.S. 493
  26. Jason Tashea, California considering end to felony murder rule, ABA Journal (2018).
  27. Felony Murder Elimination Project, available at: https://www.endfmrnow.org/new-statistics (Last visited Nov. 18, 2020).
  28. California Felony Murder Defense Attorney, available at: https://criminaldefenselawventura.com/criminal-defense/murder/felony-murder/ (Last visited Nov. 18, 2020).
  29. (2019) 14 SCC 640
Written By: Kiran Kumar J, Tamil Nadu National Law University (TNNLU)

Suggested Articles:
  1. Culpable Homicide
  2. Corpus Delicti: Establishing Murder in the Absence of Dead Body
  3. Attempt And Criminal Conspiracy Under Indian Penal Code, 1860

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