My Manual Improvement Suggestion: Eliminate Strict Liability Felony Murder

2/25/2021

Thank you to "Scott" below for pointing out that felony murder in the military is a strict liability offense (with respect to causing death). Felony murder statutes of this nature are criticized for allowing unintended killings to be punished the same as premeditated murders, and therefore many (I believe most) jurisdictions require some minimum mens rea with respect to the causation of death. See Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403 (2011). The UCMJ felony murder provision thus appears as a harsh outlier. It would permit murder liability for a bank robbery getaway driver who accidentally kills a jaywalker.

Could the President graft on a mens rea? I recognize that the President should not be creating criminal law or departing too much from the statute, and that interpretive matters such as these are the province of CAAF. However, there is the old doctrine of the "hierarchy of rights." United States v. Guess, 48 M.J. 69, 71 (C.A.A.F. 1998) ("Although the President's interpretation of the elements of an offense is not binding on this Court, absent a contrary intention in the Constitution or a statute, this Court should adhere to the Manual's elements of proof. Where the President's narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, “we will not disturb the President's narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution.”"). The term "hierarchy of rights" has not appeared in a published opinion since this 1998 case, but the doctrine has never been overruled.

The Manual states in the Explanation that "The commission or attempted commission of [a predicate offense] is likely to result in homicide..." 56.c.(5). If "likely" means >50%, though, this is clearly wrong. It is most clearly wrong with respect to burglary. Binder gives a figure of .02% of burglaries resulting in death (p. 458).

Brenner Fissell

EIC

1 Comment

Cloudesley Shovell

2/25/2021 02:41:12 pm

My first question would be: how many felony murder prosecutions are there under the UCMJ each year (or decade)? I'm sure they have occurred, I am just not personally familiar with one. I might be induced to look it up, however I have no LEXIS or Westlaw access.

For comparison's sake, I decided to look up a random state's felony murder law. I chose New Jersey. Here it is: (NJ Stat. 2C 11-3.a(3))

(3) [Murder] is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism pursuant to section 2 of P.L.2002, c.26 (C.2C:38-2), and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants; except that in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

(a)Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b)Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

(c)Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(d)Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

A couple things stood out. For starters, at least in New Jersey, you're not guilty of felony murder if one of your fellow co-actors ends up dead. So if the quick-draw sharp-shooting bank guard kills your fellow bank robber, you're ok. However, if the same bank guard ain't so sharp-shooting and accidentally kills an innocent person while trying to shoot your buddy (or you) you're guilty! Moral of the story--don't break the law.

No mens rea is required in New Jersey, either. However, NJ seems to mitigate this issue with the affirmative defense that the defendant "Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury." There's that word "likely" again. I think your take that likely must mean >50% is incorrect. I don't have access to New Jersey jury instructions, but it would be interesting to see how that affirmative defense is handled by NJ courts. However, in the classic law school hypothetical of the getaway driver striking and killing a pedestrian, I think the affirmative defense under NJ law would fail. Is a getaway driver fleeing the scene of a robbery more likely (!) than other drivers to hit a pedestrian or cause a fatal vehicle mishap? Yep. Guilty! Just my humble opinion.

The whole point of felony murder law is to provide additional deterrence against and punishment for the commission of felonies. People living ordinary law-abiding lives kill other people every day. It's a sad fact of life that mishaps happen. That's what civil liability is for. But by deciding to commit a felony, a person steps outside polite law abiding society. Such a person deserves to suffer all the criminal sanction the law has to offer and should rightfully be stripped of the argument or defense that, "whoops, accidents happen." Thus felony murder.

Kind regards,
CS

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My Manual Improvement Suggestion: Eliminate Strict Liability Felony Murder

Brenner Fissell

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