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October 25, 2010

What do you like and/or dislike most about the MPC and Ohio approaches to homicide?

A number of top-notch students have started a top-notch discussion of felony murder and other homicide issues in this prior comment thread.  In addition to wanting to praise those students for their efforts, I wanted to provide this new post to urge additional class discussion and debate over these homicide topics (especially in the context of discussing/debating some key difference between how homicides are treated in Ohio and Oliwood).

Especially because the Model Penal Code lacks any true form of felony murder (or its JV version, misdemeanor-manslaughter), perhaps I can jump-start a discussion and debate by asserting that the MPC's drafters made a mistake in not including a traditional FM provision.  Alternatively, because the Ohio Revised Code lacks any true form "extreme recklessness" murder, perhaps I should focus discussion and debate by urging our class to urge the Ohio General Assembly to amend its murder provisions to enable extremely reckless killers like Mayes and Malone to be branded (and sentenced) as murderers.

On the first issue, consider the fact that some modern commentators have suggested that a key reason the MPC's approach to homicide has been rejected by most states is the absence of any true form of felony murder.  With the benefit of hindsight, do others agree with my supposition that MPC drafters could have been more effective by drafting a very limited and targeted form of felony murder to cover, for example, causing the death of an innocent person in the commission of a rape or with deadly weapon during the commission of serious violent felony?  In other words, should the MPC have included an FM provision akin to the one to be found in the Ohio Revised Code?

UPDATE:  It dawns on me that folks might also be interested in how the federal criminal code approaches these issues, so here are links to the federal homicide basics, including:

For a variety of reasons, federal homicide prosecutions are relatively rare.  But, as evidenced by this Ninth Circuit ruling handed down just today, they are not that uncommon in response to killing on Native American lands.

ANOTHER UPDATE:  Kudos to Luke for spotlighting the first-degree murder charges that have been brought against the "Hiccup Girl" in Florida as a result of her role in a botched robbery.  Here is a link to Florida's murder provisions, which are elaborate to a fault and showcase how some states approach the codification of felony murder in modern times.  In addition, as this local news article about the case highlights, there may be a lot of interesting aspects to the "Hiccup Girl" case as it moves forward.  The article is headlined "Tourette's syndrome may play into Jennifer Mee's defense, attorney says."

October 25, 2010 in Class reflections | Permalink


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The MPC should have a version of felony murder? NO WAY! I totally disagree! In fact, I don't think that any state should have felony murder as strict liability murder.

All states have murder statutes. If someone commits murder while committing a felony, then they should be charged whatever degree of murder relative to the respective statute based on the mens rea, in addition to the underlying felony.

What is the benefit of having felony murder statutes? How can murder be strict liability? How can you be branded a murderer if you don't even commit the murder, but rather were a "get away driver"?!

Do we really think that felony murder statutes serve as a deterrent? Is robber going to be that much more careful as to not kill anyone when they rob a convenience store? I don't think so. But for argument's sake, let's concede that a robber knows about the felony murder statutes and decides that she will not even put bullets in her gun when she goes in the store. But, when she pulls the gun on the person behind the counter, she knows for a fact she is not going to kill anyone. She has no intent to kill. But the person behind the counter doesn't know this and pulls out a shotgun and shoots. The robber dives out of the way, but an innocent bystander in one of the aisles gets shot and killed.

In many felony murder jurisdictions, the robber is going down for murder. My problem is not that the robber goes down for murder. My problem is that felony murder being strict liability doesn't allow for the person to cry out in a high pitched voice "I didn't mean to do it"! Because in the scenario above, the robber really didn't mean to do it...and in fact they didn't do it! Why not charge them with robbery and negligent homicide or even involuntary manslaughter and let them have the opportunity to defend themselves?

I'm somewhat okay with the felony murder provision in the Ohio Revised Code since at least it has to be the person's "specific intention" to cause the death of another. But I am absolutely against murder as a strict liability offense.

Posted by: Luke@CrimLaw | Oct 26, 2010 12:29:08 AM

This is a developing story involving a 19 year old girl who is known as the "hiccup girl". She has admitted to involvement in a botched robbery that left the victim dead and has been charged with first degree murder. The thing is, she didn't pull the trigger...police say that she was the "set-up girl". See the story here:


Here is a good CNN video telling the story:

There was an interview with the prosecutor in this case on the Today Show this morning that I will post once it's available.

Posted by: Luke@CrimLaw | Oct 26, 2010 7:41:35 AM

UPDATE: I thought it was the prosecutor who was on the today show this morning, but it was actually the lead investigator. About midway through the story, when they start talking to this investigator he talks a little bit about FL law and how they can charge the "Hiccup-Girl" with felony murder even though she was not involved in the killing.


Posted by: Luke@CrimLaw | Oct 26, 2010 7:59:25 AM

I agree with Luke. While I think that I understand the rationale behind the justifications for the felony murder rule, I feel that by being strict liability under MPC gives uniform treatment to potentially very different situations.I think Luke's example contrasted with someone who kills his rape victim create different levels of culpability. While neither felony should have been happening in the first place, it seems to me that felony murder is a bit too extreme considering the variety of players, situations, and circumstances that may be involved in a situation in which the rule is applied.

For example, the book states that, "...knowingly creating a risk of death in the context of another criminal act is more culpable than knowingly creating a risk of death in the context of an innocent or less culpable act". While this may be true, and in my opinion probably the strongest argument in favor of felony murder rule, I am not sure it is quite enough to justify making felony murder a strict liability rule, and would probably turn on if committing a felony always involves knowingly creating a risk of death.

I like Luke's idea of charging the person(s) who committed or had part in the felony inividually based on their "blameworthiness" in the situation and use the felony as a consideration in prosecuting them. This clearly will not be the most efficient or easiest way to do things, and may not be a better system but seems to be more in tune with retributivist ideals of punishment.

I just realized this seems to be on the list of topic discussions for today, I hope I didn't jump the gun!

Posted by: Mallika Reddy | Oct 26, 2010 8:46:26 AM

Ohio's felony murder provision makes sense to be because of the "proximate result" qualification. I think it makes sense to have a felony murder provision when there would be no other way to get the person for murder. Without the felony murder provision, wouldn't we have serious causation problems in holding people responsible for murders done in the commission of felonies?

On the deterrence factor of felony murder, I would be curious to see other statistical studies about how often murders are committed during a felony...

Posted by: Rachel Ladan | Oct 26, 2010 1:36:47 PM

For those interested in another current homicide case, you might follow the link below, detailing the story of ATF agent Will Clark (is that even important?), who shot and killed a belligerent drunk who was harassing (assaulting?) his girlfriend. Since Agent Clark was in the US Virgin Islands, he was apparently not given off-duty federal agent status (immunity?). Thus, while he has been cleared by a "multi-agency" inquest, he is still facing 2nd degree murder charges in St. Thomas under US Virgin Islands law. For more the link is:

A quick glance: over the statute apparently in question, VI ST T. 14 § 922. A WestLaw search came up with a surprising result: the statute is unlike any homicide statute I've seen, in that it actually names certain devices, the use of which resulting in a dead body automatically qualifies one for a 1st degree murder charge (mens rea?)... Furthermore, what are the policy considerations here/theoretical perspectives? Do we want to encourage our off-duty law enforcement officers to turn a blind eye? Or just not shoot someone? Not to mention the whole question of what the heck is going on when an ATF agent doesn't get "off-duty" recognition that a local police agent might in a US territory?

As usual, more questions than answers (plus a future peek at justifications?), but something that got me thinking nonetheless.

Posted by: Michael Shoenfelt | Oct 27, 2010 5:02:10 PM

I agree with Luke on his analysis of Felony Murder. For the same reason that I don't like strict liability under the Felony Murder Doctrine - I appreciate the fact that Ohio Law requires "purpose" to be an aggravated murderer, or “regular” murderer. The more and more I think about the difference between knowing, and reckless (probably vs. likely) the more I agree with the requirement of highest level of culpability to be branded a murderer. If we had “purpose or knowing” as the culpability for murder – I think a lot of cases would be decided on how much we can judge the individuals awareness of the probability of their actions. The current distinction we're forced to make between purposefully killing, and knowinginly killing is much better than having to decide between knowingly killing and recklessly killing for the purposes of murder, especially since the distinction isn't incredibly clear.

Posted by: Sara Smith | Oct 28, 2010 1:47:33 PM

I was recently reminded of a film I saw during my undergrad study at OSU, called "Who Killed Vincent Chin?" In short, a man got into an argument with two other gentlemen who proceeded to search for him for about a half an hour following the fight, and proceeded to beat him to death with a bat when they found him. They were later convicted for manslaughter and received a fine of 3k and probation for three years. The judge interestingly stated, "These weren't the kind of men you send to jail... You don't make the punishment fit the crime; you make the punishment fit the criminal." Do you agree that the homicide was manslaughter? If so, how do you feel about the judges remarks?

Posted by: Brandon Frank | Oct 29, 2010 10:24:01 AM

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