The New York Times recently had a story about the latest state, California, considering abolishing the felony murder rule, the tough American principle that if you participate in a felony and someone is killed, you can be tried for first degree murder even if you didn’t directly cause the death. Writing about the rule in 2014 as it applied in a particularly odd case, I wrote,
I sort of like it, and always have. Like all laws, however, it doesn’t work perfectly all the time.
The reason I like the rule is that it acknowledges the real danger of initiating felonies, crimes that are serious and destructive. If you burn a business down to collect the insurance, for example, you should be held responsible by the law if the fire gets out of control and someone is killed. The law combines criminal and civil offenses; the felony murder rule is like a negligent crime principle. It is a law that implicitly understands Chaos Theory at a basic level: actions often have unpredictable consequences, and even if the consequences are worse than you expected or could have expected, you still are accountable for putting dangerous and perhaps deadly forces in motion. If you commit a felony, you better make damn sure you know what you are doing, because if people get killed, you will be held to a doubly harsh standard. Better yet, don’t commit the crime.
Don’t commit the crime. I have this reaction to all complaints about harsh sentences when the individual complaining (or having an advocate complain on his behalf) is guilty of the crime involved…You knew the risk, and you get no sympathy from me. The same applies to felony murder. The felon rolled the dice, and lost. (Somebody else lost too: the victim who was killed.) Nobody made him (or her) roll.
The potential California reform would change state law so that only someone who actually killed, intended to kill or acted as a major player with “reckless indifference to human life” could face murder charges. That would avoid seemingly harsh sentences in cases like the one the Time story focuses on, in which Shawn Khalifa, 15 at the times, served as a look-out while some teenage friends broke into an elderly neighbor’s house in the California town of Perris, looking for cash. The elderly homeowner was injured in the burglary and eventually died. A jury convicted the teenager of first-degree murder under the felony murder rule, and he is serving a sentence of 25 years to life. I am tempted to support the California measure, which would avoid Khalifa’s kind of sentence while keeping the possibility of a felony murder charge when the culpability is more than just moral luck.
I was pretty tough in 2014, writing…
It is easy to mount a persuasive argument against the rule, for no doubt about it, the rule in practice leads to unpredictable consequences sometimes—-but then, so does committing felonies. When a particular application of the rule is unjust, it is up to judges, prosecutors and others in the system to minimize the injustice, if injustice there is. No rule or system works perfectly; that does not mean that we shouldn’t have rules.
Yup, that sounds like me. But what’s wrong with tweaking the law to remove some of the features that encourage injustice? Then I wrote,
If all instances of the felony murder rule involved defendants like [the one in the freakish case discussed, a man who loaned his car to friends knowing that they were going to commit a robbery, and someone was killed] then I agree, the rule would be due for scrutiny, reform, and maybe elimination. As it is, however, the system has plenty of balances in place that could have, would have, and maybe should have prevented its harsh application in his case. Even accepting [the] weak argument that [the] sentence is excessive is not sufficient reason to condemn the felony murder rule itself. It might not have worked perfectly in this case. But the fact that a law isn’t perfect is not an indictment. No law works every time.
Now I’m going to write this: If there is a way to make a law with flaws less likely to work imperfectly, why not do it?
Reading the older post, I found myself wondering whether I was reacting to the advocate for abolishing the rule and his lousy, lazy argument. That’s bias at work, of course. The fact that a bad argument has been made to support a legitimate position doesn’t make the position less valid. And the advocate was Charles Grodin, who I described as “Bill Maher before Bill Maher was, or perhaps an earlier, smarter Alec Baldwin.” Was cognitive dissonance at work?