Maxwell 1

Jeff Maxwell
LSTU E-103A
7 December 2015
Prompt 1
The felony murder rule is a rule according to law that states that a person is guilty of murder if
death results during the execution, or attempted execution, of a felonious act. Depending on the
theoretical framework guiding interpretation of the rule, the felon or, in the case of a conspired
offense, co-felons, may be charged with murder if the felonious act results in the death of a
victim, bystander, police officer, or co-felon. It can be argued that the felony murder rule either
dispenses with the mens rea component required to establish a homicide as murder, or it states
that the commission of a felony in itself establishes an implied form of the mens rea of malice
required to satisfy the common law definition of murder referred to as the state of mind called
felony murder (Dressler, Understanding Criminal Law, 31.06 Murder).
Due to its misattribution of moral culpability and subversion of retributive justice, the
felony murder rule should be abolished from criminal law. The presence of the felony murder
rule in criminal law is a reflection of an inadequate construction of the mens rea that is the
determining factor in the conversion of homicide, a legally neutral term (31.01 Homicide), to
criminal homicide, i.e., murder or manslaughter (31.02 Criminal Homicide). If the mens rea
were to include in the definition of its malice component some kind of analysis of the actors
expectation of death resulting from the intended felonious act, then the felony murder rule would
be rendered unnecessary. As it stands, however, establishment of criminal homicide as felony
murder relies on an implied malice that arises from a mental state defined as the intention to

Maxwell 2
commit a felony during the commission or attempted commission of which a death results
(31.02 [B] [2] Malice).
If the felony murder rule is understood as a means of disregarding the mens rea
requirement from the common law definition of murder, then the rule appears to permit the
implementation of the strict liability doctrine when a homicide occurs in the specific
circumstance of the commission of a felony. Strict liability in this context would authorize the
conviction of the felon for murder even though he or she is not morally blameworthy, and guilty
of murder, for an unintentional death having occurred during the commission of the felony. Strict
liability doctrine permits such authorization even when the definition of the crime requires proof
of mens rea (11.01 [A] Strict Liability).
However, the felony murder rule can also be understood to be a way of declaring the
intention to commit a felony, an act conceived of as inherently dangerous and threatening to the
preservation of human life, as satisfying the mens rea of malice (11.01 [B] [2] Malice).
Rather than imposing strict liability for a homicide occurring during the commission of a felony,
the rule instead inserts strict liability into the mens rea required to establish proof of murder.
The felony murder rule thus extends an actors culpability for the felonious act in itself to
culpability for the acts resultant, but unintended homicide. If the actors culpability is not
analyzed independently and separately for two distinct crimes, then the felony murder rule serves
to transfer the intent to commit a felonious crime different from and lesser than criminal
homicide to the intent to kill a human being, thereby establishing a malicious state of mind and
satisfying the mens rea of criminal homicide (10.04 Transferred Intent).
Through transference of intent, the felony murder rule constructs two culpable states of
mind from a single culpable state of mind such that the lesser felony is accompanied by one state

Maxwell 3
of mind while the homicide corresponds with a state of mind independent of but allegedly
generated by the state of mind accompanying the felony. The felony murder rule, therefore, holds
an actor morally blameworthy for two crimes while having only committed one. In effect, the
rule seeks to create the crime of the general commission of a felony in itself, which is to be
separate from but accompany the more specific crime that is simply categorized as felonious.
The actor is blamed for the crime as well as for its imputed nature.
By reorienting the mens rea component of homicide in such a way as to include an
element accounting for the actors awareness of the risk of death, and therefore satisfying the
mens rea of intent by demonstrating knowledge of certainty (the certainty prong of intent)
(10.04 [A] Intentionally), not only would criminal liability for causing death be shifted to
emphasize the importance of the mental element of homicide, but it would make the felony
murder rule, along with its attendant defects, superfluous. Because it is the mental element,
malice aforethought, that is requisite in the determination of a homicide to be murder (31.02
[A] Murder and Manslaughter), it is critical that it consist of a state of mind that considers
the expectation, or degree of risk, of death.
If an actor is to be deemed culpable for the commission of murder, particularly when the
killing of another human being is an unintended consequence of some other intended action that
is not homicide, the mens rea must somehow account for the actor having assessed the
probability of the intended action causing an unintended death. In this way, it can be reasoned
that the actor was aware of the likelihood of unintentional killing, which, in turn, attributes to the
actor some degree of intentionality. By properly attributing intentionality, the mens rea to
establish murder is not only met, but mens rea as a principle is preserved and the institution of
criminal law is legitimated.

Maxwell 4
The felony murder rule does not allow for a distinction to be made between culpability
and the harm resulting from a crime. In the case of the felony murder rule, it is an unintended
resultant harm of a felony crime that creates the culpability of the actor. The culpability of the
actor, determined by a subjective mental state, is externalized and objectified, and the law is
constructed such that culpability, or moral blameworthiness, is created by the law itself.
In effect, the felony murder rule undermines mens rea in its elemental sense (Dressler
10.02 [C] Narrow Meaning) by inserting a condition of strict liability into the requisite mental
states to establish malice. The condition of strict liability that arises from the felony murder rule
is not the discarding of mens rea in sole favor of the actus reus of homicide, any conduct causing
death, but rather it appears in the form of a separation of the mens rea from the actus reus. The
felony murder rule relies on mens rea defined broadly as general culpability (10.02 [B] Broad
Meaning), and distributes it in such a way so as to widen the scope of mens rea as conceived in
its elemental sense. Therefore, the mens rea for murder as an element of the offense, intentional
killing, is replaced by mens rea as culpability. Unrestricted culpability substitutes for specifically
defined culpability for a particular act. The unintentional killing of a human being, by means of
legislative rulemaking, is made into the intentional killing of a human being.
The felony murder rule, as a result, delegitimizes retributive justification for punishment
as it does away with the retributive principle of just deserts, since mens rea can be manipulated
so as to establish guilt indiscriminately. Similarly, the argumentative force of the utilitarian
justification for punishment is weakened by the fact that, in the case of the felony murder rule, a
person is punished for a crime committed by someone else. The utilitarian goal of deterrence is
made ineffective if the individual did not commit a crime in the first place and therefore cannot
be deterred from committing it a second time. Furthermore, deterrence is fundamentally

Maxwell 5
undermined in a case where negligent homicide and reckless or intentional homicide are
equalized, thus causing the actor to not be deterred from committing the greater crime, but
perhaps instead induced to commit the greater after having committed the lesser.
The felony murder rule is a threat to the institution of criminal law because of its
presence within the mens rea for malice. This positioning of a rule that relies on both transfer of
intent and strict liability doctrine is a corruption from within of the principle of mens rea that is
foundational to the continued legitimacy of criminal law. The limitations so often imposed by
courts when applying the felony murder rule are indications of the courts recognition that blame
must be placed precisely. Casting a net of guilt upon the morally innocent serves to
disproportionately and unfairly inflict punishment for crimes that they have not committed, as
well as to assign culpability to the felon when a crime has not even taken place, as in a noncriminal homicide that may take place when a victim of a felony kills a bystander, police officer,
fellow victim, or even one of the felons in the course of lawfully resisting the commission of the
felony. The criminalization of lawful acts results in the punishment of undeserving proximate
actors. More importantly, illegitimate criminalization only degrades the integrity of the criminal
law and the human dignity of those over whom it is exercised.

Very well written and clever paper, with a few imprecisions. Some more attention to
counterarguments would have made for a better paper.
A-