Criminal Justice: Felony-Murder Term Paper

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Take, for instance, a felon who sexually abuses a five-year-old; if such a person is not rational enough to realize the weight of the problems they inflict on their victims, how would they even begin to think and weigh their actions against the provisions of the felony-murder rule? if, for argument's sake, we assume that criminals are rational, there still is nothing much they can do to control crime scenes, most of which are usually highly chaotic. Even if they could, "the felony-murder rule does not substantially increase the criminal penalty for killing during a felony" (Malani, 2002, p. 6). In its absence, the state would only have to prove negligence and recklessness to charge the felon with murder (Malani, 2002).

The rule's opponents have argued that, in fact, the felony-murder rule increases crime. In the rule's absence, the state would grade punishment on an incremental basis as a felon's "mental state moves from negligence to specific intent," and a felon would be reluctant to cause any additional deaths after one accidental killing, because then, his punishment would assume a different angle -- i.e. from that of robbery to one of murder (Malani, 2002, p. 6). With the rule, however, such grading is eliminated and marginal deterrence (the disincentive to kill intentionally) diminishes after an incidence of accidental killing, simply because any additional deaths would only increase a felon's punishment from one to two murder sentences (Malani, 2002).

Suggested Reforms to the Felony-Murder Rule

The Commission of Law Review has put forward various proposals whose adoption could revolutionize the felony-murder concept and the field of murder convictions in general. The proposals have been explored in the subsequent subsections of this text, together with their strengths, and weaknesses.

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i) Having recklessness incorporated "into the mental element in murder": this would bring "murder killers such as terrorists wishing to damage property who did not intentionally cause death, but who were indifferent as to whether or not, their conduct would result in a fatality" (Law Reform Commission, 2008, p.52). Moreover, this proposal would open up the concept of risk, requiring it to be unjustifiable and substantial and would, in so doing, allow for culpability assessment (Law reform Commission, 2008). The fundamental weakness draws from its flexible formulation - which would make it prone to uncertainties and open for inconsistencies in jury verdicts (Law Reform Commission, 2008).

ii) Retaining implied malice murder: every adult of sound mind understands the fragility of the human body. This proposal seeks to ensure "that those who inflict serious injury while aware of the risk of death are as morally culpable as intentional killers" (Law Reform Commission, 2008). The main weakness stems from the difficulty involved in separating serious injuries from trivial ones.

iii) the non-inclusion of recklessness: that the fault element of recklessness not be considered when a case involves injury that leads to death, but rather be "dealt with under reckless killings manifesting extreme indifference to human life" (Law Reform Commission, 2008, p. 64).

I am of the opinion that the commission's proposals will do little to reform the highly-flawed felony-murder doctrine. Its main problem stems from the fact that it is too general, and hence tends to punish people disproportionately. Attempts to improve the rule and make it more effective in crime deterrence have, ever since its incorporation into the justice system, not yielded any tangible results. Any further attempts would only impose an extra tax burden on the already-overburdened.....

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