Oh-Oh… I May Be Mellowing: I’m Not As Keen On The Felony Murder Rule As I Once Was

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?

16 Comments

Filed under "bias makes you stupid", Law & Law Enforcement

16 responses to “Oh-Oh… I May Be Mellowing: I’m Not As Keen On The Felony Murder Rule As I Once Was

  1. “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.”

    No to muddy the waters, but let’s say someone (as in Reverend Al Sharpton, President Obama’s GO-TO guy on race relations) incites enough people to enough rage that they intentionally start a conflagration to, and I quote, Burn The Jew Store Down (Freddies Fashion Mart) which results in over eight fatalities?

  2. Paul Compton

    Would the ideal solution to problems of overreach with this law be that if the judge, prosecutors and others don’t ameliorate the sentence, then the Governor can be requested to commute the sentence?

    That way the deterrent would still be in place but with the possibility of grace. It still relies on fallible, biased, and incompetent people of course, but what in life doesn’t!

  3. Chris Marschner_

    I would be open to a modification such that the person had to be in proximity to the murder to such a degree that he or she might have been able to intervene. A lookout may not even know what happened inside during the crime. I might add a caveat to that position such that if it can be proven that the “lookout” knew that weapons were carried then he or she should anticipate that a murder was a good possibility and felony murder should be charged.

    The problem with reying on prosecutors and judges mitigating the felony murder is that it may be applied unevenly by different judges. Moral luck should not play a role in sentencing.

    • Another Mike

      Don’t kid yourself, they know what the minimal equipment for a successful robbery is. Robbery is an immoral act… how does “moral luck” figure in? “Give me the money or I shoot you” (or words to that effect, (I toned it down since the kids might still be up.) leaves little to the imagination.

    • isolumikko

      “..it may be applied unevenly by different judges..”
      This argument applies to all discretion: police, prosecutorial, judicial, the power to pardon. If we follow the no-discretion road we then have the situation where “one size fits all”, which leads to injustice by a different route.
      For me the issue is more one of mens rea – should the defendant have been aware that the enterprise they joined in could result in a death? And can that be put into an efective rule? I don’t know.

  4. Another Mike

    Keep it as is. Period.
    There is always a borderline event that someone like the NYT or Time will seize upon to make life easier for the criminal underclass that makes life miserable for the rest of us. Would they be beating the drums like this if the guy was 35, rather than 15. Probably not.

    I’ve seen the felony murder rule applied to the getaway driver waiting out side; once when the store clerk had a heart attack when the robber displayed the gun and another time when the death was the robber, shot by the intended victim. When you lie down with dogs you may well get fleas.

    Maybe some mitigating language regarding juveniles. Several states have made accommodations for exceedingly harsh sentences when the younger set is involved. Other than that, you were right the first time.

    • I am confused. How is it that the presence or absence of a lawyer affects whether someone is deported, once it’s established that they’re in the country illegally?

      • Sue Dunim

        Are you familiar with the asylum seeker process?

        See article 51 part 1 of the Refugee Convention 1951. The bit saying that refugees who are illegally present in a country can’t be sanctioned for that as long as they present themselves to the authorities within a reasonable time. Which under the US Immigration and Naturalization Act (INA) is within 1 year of entry.

        Tell me, what do you think such a hearing in front of a trier of fact is for?

        Here, I’ll help: INA 208 3.B.b i and ii

        (i) IN GENERAL- The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A) . To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

        (ii) SUSTAINING BURDEN- The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

        If you can’t look at a situation where a 3 year old – or 3 month old – without adult assistance is supposed to provide adequate evidence to enable a credible judgement, and not see it as a mockery of “due process”, then I fear we have an insuperable difference.

        The world is seeing such things happening in the US. This goes well beyond PR Disaster into damaging national security.

        • Who decided that the 3 year old or 3 month old needed to seek asylum in the U.S. in the first place? It certainly wasn’t the child. I’ll assume that someone died in the process of taking the child to the U.S. and that’s why the adult who made the decision can’t also provide credible testimony.

          As far as I know, the standards for “due process of law” that apply to American citizens don’t apply when deciding whether an illegal immigrant can stay. There’s no question as to whether the violation of the law took place; the crime is technically in progress in the courtroom and therefore empirically verifiable. The only question is whether to make an exception.

          It does make sense that people should have lawyers arguing on behalf of them being refugees, but for a solitary child we don’t necessarily know whether they wanted to come to the U.S., or what information they’re basing that decision on. They may not know what’s going on.

          Being responsive to wrath and hubris myself and having the mindset of an engineer, I’m inclined to address a refugee problem by taking over the country of origin and stopping the root cause of the conflict. I understand that’s not generally how it’s done on this planet. Before such an intervention it’s customary to wait for the country to invade its neighbors, and sometimes even that doesn’t prompt action.

          • Sue Dunim

            . I’ll assume that someone died in the process of taking the child to the U.S. and that’s why the adult who made the decision can’t also provide credible testimony.

            The adult that brought them in is tried separately. Haven’t you heard about this “separating at the border” policy of the Leader’s? All minors are now classed as unaccompanied minors, as their parents are in immigration detention. They are unavailable for testimony, and have no idea where their children are. The children have no idea where there parents are either. No audit trail is kept spanning the three organisations involved. This is apparently deliberate, though it may possibly be gross incompetence due to the hasty nature of the novel policy implementation.

            The point is that there was never àny intention of uniting parents with their children. Now, as some courts have ordered such reuniting, there is much scrambling within these organisations to create an audit trail, but they just don’t have the data, it’s been lost between the cracks.

            Only in cases – and these are a large proportion – where children have been put in the care of relatives – cousins, grandparents etc – is there a chance of getting legal representation. But the carers don’t usually know where the parents are being imprisoned, or even if they’ve already been deported, and have no way of finding out. The parents meanwhile have no way of knowing who is now caring for their lost children, let alone any addresses or contact details for them. They have to somehow get permission from the guards to ring around any relatives they do have contact information for, and ask them to do the detective work.

            • You’re right, that doesn’t sound competent. If they aren’t keeping track of which child they separated from which adult, then that’s a huge problem.

              I wasn’t aware that the “separation of families” policy referred to trying them as completely separate individuals. I thought it meant that children can’t be imprisoned with adults, and have to stay with someone. It sounds like whoever’s in charge of implementing the policy doesn’t know how to do it right and should be replaced by someone who does.

          • Sue Dunim

            As far as I know, the standards for “due process of law” that apply to American citizens don’t apply when deciding whether an illegal immigrant can stay.

            Full explanation at https://mobile.nytimes.com/2018/06/25/us/politics/due-process-undocumented-immigrants.html

            Summary – everyone claiming asylum on US soil is entitled to due process, according to the courts.

  5. Zanshin

    Wow, a possible reversal of Jack. That’s even more exciting than a possible reversal of SCOTUS.

    I’m a witness of history in the making

  6. How about ‘don’t do the crime?’

    You chose the side of wrong (illegal), and bad crap may happen to you… natural consequences.

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