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October 22, 2013

Comments seem to be working again, so let's start felony murder (repeal?) discussion

I am pleased to report that, at least on my laptop, the comment function appears to be operational for this blog again.  Inspired by that great reality, I thought it would be useful to begin here a discussion of the always controversial topic of felony murder (and its JV version, misdemeanor manslaugher). 

Specifically, drawing on an amusing little editorial complaining about an Illinois decision about the doctrine from a few years ago, I wonder if I could build support among students to seek to abolish both felony murder and misdemeanor manslaugher doctrines in Ohio.  To begin, I urge everyone to read this commentary, headlined "It's a Bird, it's a Plane, it's Felony Murder." Then, based on the points made therein, I wonder if anyone would support a proposal to repeal Ohio Revised Code Subsection 2903.02(B) and all of Ohio Revised Code Section 2903.04.

October 22, 2013 in Class reflections, Course materials and schedule, Reflections on class readings | Permalink

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From a retributavist perspective, the MPC solution to deaths caused in the commission of a felony seems much more just than the current felony murder statutes permeating our state criminal laws. If you manifest extreme indifference and cause a death, that too is murder. Committing a forcible felony, or an "offense of violence" as Ohio calls it, creates a rebuttable presumption that the defendant was extremely indifferent to human life and would thus legally culpable. This gives deference to the need to punishment to fit the crime. It is backwards looking to see if the act itself was within the definition of murder, either purposefully, knowingly, or recklessly, and not particularly concerned with the consequences.

From a utilitarian perspective, the felony murder rule makes a lot more sense. It might deter people from taking the risk of committing felonies that are offenses of violence because of the risk of killing someone and being labeled a murderer. It makes it a heck of a lot easier to incapacitate felons who cause dead bodies if you don't have to worry about proving a mens rea. Additionally, who couldn't use a little rehab? The utilitarian might respond that consuming valuable resources prosecuting and locking forcible felons up to the same degree as murderers is not cost effective. This is a question for the jury of scientific inquiry. But utilitarianism would seem to have a harder time "causing the death" of felony murder statutes as a theory of punishment.

Posted by: Elliot Gaiser | Oct 22, 2013 4:32:26 PM

Oliver Wendell Holmes supported this rule. He has never been wrong. Not even one time.

I recalculated the math showing no benefit in a classic article opposing it. I showed the math favored the rule as a deterrent. The math in the article was mistaken.

Here is a brief review of the debate, and a middle course suggestion.

http://www.harvard-jlpp.com/wp-content/uploads/2009/05/CrumpFinal.pdf

Posted by: Supremacy Claus | Oct 23, 2013 7:01:39 AM

The mens rea is mind reading. That is a supernatural power attributed to God judging mortal sins upon arrival in heaven, according to the Catholic catechism. The mens rea: Latin phrase from a church language, supernatural, faith based, from the canon of a church. Totally in violation of the Establishment Clause.

Where are all the Jews in the lawyer profession? How could they allow this outrage in silence. Imagine the Sharia in the common law. I read their book. 90% of it is pretty good. Only 10% is the goofy stuff people hear about. Nevertheless the explosion would be huge if anyone suggested it as the basis of the common or criminal law.

That is correct. All crime should be strict liability. How do you know the hunter shooting another thinking him a deer is less dangerous than the one who was paid $10,000 by the other's wife in a contract killing? From an utilitarian view, that question is completely not obvious.

Posted by: Supremacy Claus | Oct 23, 2013 7:10:56 AM


Thanks for the Harvard link. As a first year student, this supplied a useful articulation of many confusing concepts pinging around in what is left of my brain.

But I've got questions! Even if OWH, who was never wrong (not even once apparently), and he supported the rule, he certainly had the capacity to be wrong. And, heck, felony murder is too much fun not to at least take a second look.

If the law maintains "a requirement that the defendant must have engaged in an act clearly dangerous to human life," isn't it obvious that a violation of the "good felony murder rule" requires some additional blameworthy/dangerous action? Even if precise definition of mens rea is unachievable by humans, can't we take comfort in a jury of peers establishing what is and is not reasonable?

But, I don't see how this will deter felons as it only affects violent felons. If the rule is, as Crump refers to it, a "good rule," we are not punishing the pickpocket who robs a fainthearted victim. This class of felons is engaging in inherently more dangerous conduct and a more severe punishment need be on the table. But, "inherently dangerous" is inherently flawed. The article addresses many reasons why, especially in California.

My gut tells me that there is something to the felony murder rule. I want some rules to distinguish between very bad felons and not as bad felons. With your deer hunter scenario, I feel different if the hunter killed a victim on the victim's property, outside of deer season, in broad daylight when the victim was wearing safety Orange holding a sign that said "I am not a deer" as opposed to a professional deer huntsman (got to jump at the chance to use the word "huntsman") former U.S. Army sniper shooting a grown up dressed as Bambi. I don't KNOW either is any less dangerous but I am comfortable in letting reasonable minds debate it.

Posted by: Christopher Sponseller | Oct 23, 2013 8:50:14 AM

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