NCJ Number
131709
Journal
American Criminal Law Review Volume: 28 Issue: 1 Dated: (1990) Pages: 73-142
Date Published
1990
Length
70 pages
Annotation
This evaluation of the special rules governing killings during crime argues that the felony-murder rule is not as thoroughly incompatible with intent-based retributive principles as has been commonly suggested.
Abstract
Legal commentators have persistently attacked strict liability aspects of felony-murder and misdemeanor-manslaughter rules. The attack regarding killings during crime has involved two fronts. First, felony-murder and misdemeanor-manslaughter rules have been argued to violate intent-based retributive principles of punishment. Second, some deny that the felony-murder rule serves any legitimate social purpose in treating killings during crime as strict liability offenses. It is argued that the felony-murder rule is consistent with intent-based retributivism and that it retains strong consequentialist justifications. A careful articulation of factors supporting a felony-murder rule can guide courts in resolving questions on the proper scope of the rule. Discriminating approaches to strict liability in criminal law are important to describe the current state of affairs and to prescribe any meaningful system of punishment. The absolutist approach rejects strict liability as inconsistent with the goal of not punishing the nonculpable. Although the absolutist can attempt to square the flat rejection of strict liability with the inevitable punishment of innocent persons, such attempts are far from uncontroversial. A move toward a discriminating theory of strict criminal liability is a necessity. 251 footnotes