Reforming the felony murder rule

By Scott Tibbs, May 29, 2019

A prosecutor unhappy with California's efforts to reform the felony murder rule said "We're literally talking about letting murderers go free." Well, no, that is not what is happening, because the people getting released did not actually kill anyone. It does not help the argument to exaggerate the case.

A better question is this: Should there be punishment for involvement in crimes that lead to death? Yes. Should the penalty be enhanced, for non-murder crimes, if accomplices kill people? Yes. But should they be treated as actual murderers? I have said in the past that the felony murder rule is a good rule. In some cases, I still believe that. But not in all cases. Let's examine two scenarios:

In scenario A, two men conspire to kidnap and rape a woman, with no plans to end her life. One of the men snaps and murders her. Should the other man be treated the same as the one who committed the murder, even though he did not actually kill her? Yes. Yes!! A hundred quintillion times, YES!!

In scenario B, three men conspire to rob a store. They plan to stick up the clerk, grab the money and run. There is not supposed to be violence. Should the man waiting in the getaway car be charged with murder if one of the two in the store maliciously shoots the clerk? No.

The key here is what was intended, and if something really did go off the rails in the way the non-killer did not intend or desire. There are cases where the felony murder rule would be unjust. There are cases where it is totally just and good. This is why we need to have discernment. Show mercy when it is just, and go for maximum punishment when that is just. Too often, prosecutors go for the maximum when a lighter hand is needed. But we should not release dangerous super predators either. Be wise. Be discerning.

But how is this written into the law? That is where it is tricky, because the law must be as clear as possible. We deserve to know what is legal and illegal, and in illegal actions we deserve to know how severely the state treats each crime. We cannot say a prosecutor "may" pursue felony murder charges whenever there is a death, because that leaves too much to interpretation. The law should be written in such a way that discourages or forbids unjust charges but allows felony murder charges where appropriator.

For example, if someone is engaged in a violent crime (the kidnap and rape in Scenario A) then he can be charged with felony murder. If someone is not involved in violence (the guy driving a getaway car) then he cannot be charged with felony murder. The law would need to be very clear in what is and is not felony murder. Even then, there will be some room for interpretation, and we must expect our judges and prosecutors to have wisdom and discernment on when such charges are appropriate.

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