Paradox in Practice: A Reckoning of the Common Law’s Antiquated, Prejudiced Felony Murder Rule
Paradox in Practice: A Reckoning of the Common Law’s Antiquated, Prejudiced Felony Murder Rule
Abstract: The doctrine of felony murder applies harsh and disproportionate sentences such as life without parole or capital punishment as a form of strict liability. While all other common law jurisdictions worldwide abolished the doctrine, it uniquely survives—and actually flourishes—in the United States. These other jurisdictions, including the United Kingdom and Canada, abolished it due to severe issues in the proportionality between crime and punishment. They also emphasized the importance of mens rea in their criminal law systems The United States recognized these issues in other contexts both legally and diplomatically. This is evidenced by its decision to end capital sentencing for non-murder crimes and its repeated denunciation of non-murder executions in countries such as Iran and North Korea where the practice still exists. Yet, curiously, the felony murder rule continues to exist and perpetuate unjust justice throughout the US criminal justice system.
This Note analyzes the legislative and judicial history of felony murder in three common law jurisdictions and advocates for three distinct ways that the United States can abolish it entirely. Part II describes the common law consensus to abolish the doctrine of felony murder outside of the United States by recounting its evolution in the United Kingdom and Canada In so doing, it details how these jurisdictions dealt with the lack of proportionality between crime and punishment and the nonexistence of mens rea. Part III discusses the United States’ legal rationale of proportionality rooted in the Eighth Amendment ban against cruel and unusual punishment. It argues how US logic behind condemnations of select countries’ capital punishment for non-murder crimes is inconsistent with its practice of felony murder and therefore delegitimizes these denunciations as empty threats. Last, it details the disparate impact of felony murder on Black people across the United States. Part IV reflects on the paths to abolition deployed by the United Kingdom and Canada and describes two ways the United States can abolish felony murder by federal action. Similar to the UK model, the US legislature can outright abolish the felony murder doctrine. Or, mirroring Canada’s approach, it can implement congressional legislation to elevate civil liberties in the penal system. This could pave a foundation for the US Supreme Court to abolish felony murder similarly to the Canadian Supreme Court. Part IV demonstrates the ability and trends of individual US states abolishing felony murder, and advocates for three ways each state should abolish the doctrine through their courts, legislature, or a combination of both. Finally, it calls for more open source reporting and tracking of felony murder generally and as it relates to race. This would allow the United States to reckon with the racial injustice felony murder perpetrates against people of color, and predominantly Black people.
Recommended Citation: Julia Tedesco, Paradox in Practice: A Reckoning of the Common Law’s Antiquated, Prejudiced Felony Murder Rule, 45 Fordham Int'l L.J. 211 (2021).