Crime & Punishment Workshop Series
presents
Guyora Binder
State University of New York at Buffalo Law School
Making the Best of Felony Murder
Friday, February 18, 2011
12:30 – 2:00
Solarium (room FA2), Falconer Hall
84 Queen’s Park
Although scorned as irrational by academics, the felony murder doctrine persists as part of American law. It is therefore important that criminal law theory show how the felony murder doctrine can be best justified, and confined within its justifying principles. To that end, this article presents a constructive interpretation of the felony murder doctrine in American law. A constructive interpretation seeks to make the best of law by identifying a principle of justice that accounts for as much as possible of the law as it has developed, and provides a standard for criticizing and reforming the rest. Drawing on my prior work, this article justifies felony murder liability on the basis of the moral intuition that blame for causing harm is properly affected by the actor’s aims as well as the actor’s expectation of causing harm. This two-dimensional conception of culpability as both cognitive and normative pervades our criminal law. It justifies imposing felony murder liability as punishment for killing negligently in the pursuit of an independent felonious purpose. I refer to this justification as the dual culpability principle. An examination of criteria of felony murder liability for both killers and accomplices in all American felony murder jurisdictions reveals that most condition the offense on negligence through a combination of culpability requirements, dangerous felony limits, foreseeable causation requirements and complicity rules. In addition, most jurisdictions condition the offense on felonious motive through a combination of enumerated felonies, causation requirements, and merger limitations. Thus, felony murder law conforms to the dual culpability principle in most respects in most jurisdictions. This sufficiently validates the principle to warrant its use as a standard for critique and reform. Many felony murder laws nevertheless fall short of the principle’s demands in some respects, and this article identifies the reforms needed in each jurisdiction. More importantly, it provides the arguments of principle and precedent lawyers and legislators will need to argue for those reforms.
Guyora Binder, University at Buffalo Distinguished Professor, SUNY at Buffalo Law School, is co-author of "Literary Criticisms of Law" (2000, Princeton University Press) and "Criminal Law" (2008, Aspen), and author of "Treaty Conflict and Political Contradiction," (1989, Praeger) as well as the forthcoming "Felony Murder" (Stanford University Press). His writing on legal theory, criminal law, and international law have been published in the Yale and Georgetown Law Journals, and the Stanford, Michigan, Texas, Notre Dame, University of Chicago and Boston University Law Reviews as well as the Yale Journal of Law & Humanities.
A light lunch will be provided.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
