Felony murder, also known as constructive malice, is a legal rule used in the United States and some other jurisdictions stating that any death that occurs during the commission of a felony is first-degree murder
The common scenario is that of someone suffering a fatal heart attack during the course of a bank robbery. That death, which may have been caused by the stress of the robbery or the failure to get medical treatment caused during it, would be counted as first-degree murder. Likewise, numerous criminals have found themselves charged with Felony Murder because their accomplice was shot in self-defense by the intended victim. Cue the criminal's family screaming about how it wasn't even their poor misunderstood choirboy
who pulled the trigger. The reasoning behind this law is that if the criminals had not been committing a felony, then the victim would not have died, therefore the criminals are responsible for the death.
First degree murder is a capital (death penalty) crime in many jurisdictions, but Supreme Court decisions in the U.S. have restricted this somewhat; in order to be eligible for the death penalty, a participant in a felony murder must either:
- Attempt to kill,
- Intend that a killing take place, or
- Act with reckless indifference to human life.
Can serve as Justice by Other Legal Means
In the UK, this crime has not been used since 1957. In England and Wales, it is either considered manslaughter (culpable homicide in Scotland), or, if one person commits a crime that is "outwith the common criminal purpose" any of his co-criminals may be acquitted of it entirely. The classic example is a man, part of a group of bankrobbers, who murders the teller because he was having an affair with his wife, without informing his confederates that he was going to do so, in a plan which otherwise did not call for the use of violence.
Note that this rule is the subject of great controversy in America. Because any
felony can serve as the basis for a felony-murder conviction, it can have some odd consequences. The drafters of the Model Penal Code
noted that because it is a felony in most states to sell a visibly drunk individual alcohol, if the drunk drinks himself to death or crashes his car and kills himself or other people, the liquor store shopkeeper or bartender who gave the drunk the booze might be criminally liable for murder under the traditional felony-murder rule. Obviously such a result is repulsive; it becomes more so when you realize that the cases that this is supposed
to cover—such as the classic armed-robbery scenario—could easily get murder convictions on the grounds of "depraved indifference" (American courts generally accept that when you act recklessly in a manner where it is not merely possible but likely that you are going to kill someone, it's murder by the rule of "depraved/extreme indifference to human life", or more poetically "depraved-heart murder"). Opponents of the rule (particularly defense attorneys) describe it as a prosecutor's easy way out, used not to get proper convictions when the facts are difficult
but rather to take a shortcut when the facts are easy and a conviction is assured on other legal grounds; even legal scholars who don't advocate for its abolition are quite wary of it. As a result of this wariness, the MPC (adopted by somewhere in the ballpark of 10-20 states) includes a very narrow version of the rule; one state (New Mexico) has modified it in a manner that makes it more or less useless; and three states have abolished it entirely (Hawaii and Kentucky by legislative enactment, Michigan by judicial decision).note
Contains spoilers, by definition.
Live Action Television
- Used in an issue of Nightwing, complete with a woman dropping dead of a heart attack during a robbery.
- One telling of Batman's origin has this law be the explanation for why Batman is a vigilante and not a badged police officer. One of Bruce Wayne's law professors poses a hypothetical situation where two teenagers steal a car for a joyride and end up hitting and killing a pedestrian. When Bruce states that only the driver should be held responsible for the death, the professor corrects him that both teens are responsible because they both participated in the felony which led to the death of the victim. Bruce finds this shockingly unjust, leading him to decide to work outside the law.
- In Peter Parker, The Spectacular Spider-Man, the second Prowler found himself in a terrible situation when he tried burgling a penthouse and a guard tried tackling him while the Prowler was going over the side to escape. As it happens, the combined momentum led to the guard being accidentally thrown off and he falls to his death while the Prowler could only watch helplessly clinging to the building wall. After that, the Prowler became even more dependent on his employer, Belladonna, considering the accident would still be considered a "murder in commission of a felony." The fact that the police suspect Spider-Man did it is no help considering the Prowler knows that the Super Hero will be looking for him to clear his name.
- In one episode of CSI, a man convicted in 1991 of killing a man during a burglary (put away by evidence from Catherine Willow's first solo case) appeals his conviction. It's found his girlfriend did it, but since he was present and covered it up, he is guilty of felony murder.
- Also used in the "Fight Night" episode's opening sequence, where the in-ring death of a boxer is provisionally declared a murder because the fight's organizers had rigged the betting odds to ensure they'd make a fortune. Someone was indeed charged with the boxer's murder, but that's because the other fighter had loaded his gloves with mercury for a neck-snapping punch, not because of the felony murder statute.
- In The Closer, a kid was killed because a man fired a warning shot at a couple of gang bangers who were trying to steal his car, and the bullet flew two blocks away and hit the kid. The bangers were arrested for felony murder as they instigated the crime which led to the kid's accidental death.
- In another episode, the owner of a jewelry store has a heart attack and dies during a robbery. The robbers get charged with both robbery and felony murder.
- Vinny on Wiseguy used criminals' fear of this law to save an innocent person without blowing his cover. A customer suffered a heart attack when Vinny (an undercover fed) was helping rob a bank, and Vinny insisted that the real crooks let him save the man, ostensibly because he didn't want to risk a felony murder charge.
- A favorite tactic of Jack McCoy in Law & Order was, if he couldn't get someone dead to rights on murder, to go after them for Felony Murder, usually with regard to how it related to suspects who acted with reckless indifference for human life.
- The fact that the British legal system no longer recognizes this has caused the Law & Order: UK writers a few problems when they remake an original series episode.
- On one episode of Breakout Kings, one of the fugitives was a man who had been put away for felony murder after he stole a car when he was 18 to go joyriding (his elderly victim had a heart attack when pulled out of the car). Once in prison he was sexually abused by the other inmates-he broke out mainly to get revenge on his main tormenter, who had gotten out and gotten married.
- A Real Life case in January 2012: A young woman, who was home alone with her infant shot and killed an intruder after he broke into her home. His accomplice, who ran away at the sound of the shots, is facing Felony Murder charges. She, on the other hand, won't be facing any charges.
- The case that led to the end of Felony Murder (or "constructive malice") in British law was that of Derek Bentley and Christopher Craig in 1952. Bentley, 19, was severely mentally disabled. Craig was 16. When breaking into a warehouse one night, Craig was carrying a gun. Confronted by the police, Bentley (while already under arrest) allegedly said "Let him have it, Chris!" Craig then shot dead a police officer. The prosecution claimed this meant to shoot him, which the defense contested of course, but it didn't matter-Bentley was part of the underlying felony, meaning legally he was guilty of the murder as well, even if he hadn't also urged Craig to do this. Craig was too young to be hanged (it was for 18-year olds and above only) and received "detention at Her Majesty's pleasure", paroled after 10 years. Bentley was hanged. The absurdity of the murderer being spared in place of his mentally disabled partner led to the Homicide Act 1957, abolishing constructive malice and permitting the defense of diminished responsibility (as Bentley was not allowed to utilize)-capital punishment was then mandatory for murder convictions, and this also helped in the campaign against hanging. In 1993, Bentley was retroactively pardoned, and his sentence quashed in 1998. The case was chronicled in a film named after Bentley's ambiguous words-Let Him Have It.