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Injustice and Felony Murder

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Via Plumer, Adam Liptak discusses the case of a 20-year-old in Florida serving life without parole for lending some friends his car. What’s particularly useful in the article is that Liptak makes clear how unusual it is for the U.S. to have retained the concept of felony murder that holds accomplices equally responsible for murders committed by others regardless of their intentions:

Most scholars trace the doctrine, which is an aspect of the felony murder rule, to English common law, but Parliament abolished it in 1957. The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule. So is, as Mr. Holle learned, a killing by an accomplice.

India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.”

Countries outside the common law tradition agree. “The view in Europe,” said James Q. Whitman, a professor of comparative law at Yale, “is that we hold people responsible for their own acts and not the acts of others.”

The point here is not that Holle is entirely innocent, but it seems far more appropriate to sentence him as an accomplice before the fact than as a murderer. (And when combined with another distinctive feature of the United States compared to other legal regimes — maintaining the death penalty — the potential for injustice is even more severe.)

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  • BSD

    If Mr. Holle DID know (or reasonably should have known) that his car was being borrowed FOR a crime with a likelihood of violence, I have no problem in prosecuting him for murder.
    If it’s not clear that this was the case (the article linked is maddeningly unclear as to whether it is unclear or by his own admission), then he should not have been convicted of Felony Murder under the law as it stands. Once again, the problem her is not the law, but prosecutors getting away with a conviction without meeting their burden of proof, Judges who let them, and Juries who are incorrectly charged as to mens rea and burdens of proof.

  • If Mr. Holle DID know (or reasonably should have known) that his car was being borrowed FOR a crime with a likelihood of violence, I have no problem in prosecuting him for murder.
    Until we start applying this standard to corporate CEOs, this is ridiculous. It’s a car. It’s not murder.

  • Hogan

    By the same logic, they could have charged the victim’s mother with murder. No safe filled with marijuana, no crime. No safe, no consequences. No safe, no murder.
    (It’s even more logical on the assumption that there were many more cars in the state of Florida than there were safes filled with marijuana that night. But that may not be a good assumption.)

  • mpowell

    So what exactly is the felony-murder law? If you commit a felony and somehow that is linked to a murder, you are guilty of the murder? If you commit any crime and that is linked to a murder, you are guilty of murder? Do you need to have some appreciation of how it could result in murder? Like if you commited some kind of mail fraud that was a felony and randomly there was a related murder, would that count?
    I assume you have to commit some crime, right? So what felony crime did this guy commit? Wouldn’t the prosecutor have to prove that he knew they were going to commit a robbery when he lent the car? How could you possibly prove this? If the guy says, “no, I was drunk and I didn’t think that’s what they were doing”. And the other guys say, “no, we didn’t really tell him”. And this guy borrows his car all the time… seems kind of sketchy to me.
    I think I am against this felony-murder thing. Asking the victim’s father at the end of the article is pretty stupid, too. Who cares what he thinks? The point of the law is not to make him feel good.

  • Who cares what he thinks? The point of the law is not to make him feel good.
    Well, the US does seem to have institutionalized revenge as a legitimate penal goal.

  • Walt

    IIRC, you can be charged with felony murder if the outcome is a reasonably predictable consequence of your actions. It’s intended to apply to participants in an armed robbery where one of the robbery victims ends up dead. I think it’s reasonable in that case (but not reasonable in the case here; I suspect BSD has it right).

  • Boss, boss… it’s Floridatown… fuggeddabout it.
    A state where Rush and Ann Coulter are caught dead to right in felonies, and being rich and famous, and more important, being White, they walk scot-free (or on bullshit probation, anyway), where as this guy Holle is clearly guilty of “loaning vehicle while Black”… (see, e.g., this: http://www.talkleft.com/story/2004/01/26/664/31720), a serious crime in Florida at least.
    You can take Jim Crow out of the letter of the law… but can you really take it out of the law as applied? Mr. Holle is just another shining example in a country where something like 1 in 4 African American males can expect to be incarcerated at some point in their lives.

  • E

    Google “Lisl Auman”. At least in her case her conviction was reversed…but she still spent 7 years in prison.

  • Matt Weiner

    Readers of this blog should definitely Google Lisl Auman.

  • James B. Shearer

    From the NYT article:
    “But Mr. Holle did testify that he had been told it might be necessary to iknock outi Jessica Snyder. Mr. Holle is 25 now, a tall, lean and lively man with a rueful sense of humor, alert brown eyes and an unusually deep voice. In a spare office at the prison here, he said that he had not taken the talk of a burglary seriously.”
    Sounds like a rational jury could conclude he knew his car was going to be used criminally.

  • Pug

    Sounds like a rational jury could conclude . . .
    A rational jury would convict a 20-year old who was 1.5 miles away of murder? And a rational judge would then give him life without parole? Doesn’t strike me as very rational.
    Anybody who knows anything about Pensacola knows it is full of hanging juries and hanging judges.
    Hell, even Mom got three years in the joint out of this deal.

  • bosdcla14

    During law school, I worked in something called the Post-Conviction Justice Project.
    One of my clients was a woman who had been committed of felony-murder. She had a boyfriend who would sometimes pimp her out for money. On one particular occasion, they decided to add robbery to the usual plan. Basically, her boyfriend would rob the guy after he had sex with her.
    This guy had an affinity for bondage, so he tied up the my client. After she was tied up, her boyfriend the the guy got into an argument over money (seems especially stupid in light of the fact they were going to rob the guy). The boyfriend pulled out a gun and shot and killed the guy.
    So my client was guilty of a murder that she never wanted to happen and had been committed while she was tied up.
    She’d been in prison 29 years when I took her case, and while the parole board recommended her for parole the year I represented her, it was reversed by the Governor (parole board recommends parole slighly under 1% of the time, the majority of those recommendations get reversed). She was released after the next year, after 31 years in prison. She’d been 27 when it happened, so she’d spent the majority of her life in prison. A lot longer than many actual killers.
    Previous offenses had been arrests for prostitution (unsurprisingly) and drug possession.
    As a final note, in addition to the question of whether this is just punishment, it also costs approximately $35,000 a year to incarcerate someone. I hesitate to raise this because it somewhat obscures the issues of justice and leads to some people saying “prison should be tough, cut out the frills (ie, the programs that allow convicts to learn skills so they can get jobs that don’t involve crime—and don’t worry, those programs are basically gone at this point). But still, is an expenditure of over a million dollars (in 2007 dollars) a smart policy move? I don’t think so.

  • Mojo

    I agree that the CEO of General Motors should be imprisoned for life without parole. As the prosecutor said, “No car, no crime. No car, no murder.”

  • Sounds like a rational jury could conclude he knew his car was going to be used criminally.
    Right–which is why it would be perfectly reasonable to convict him as an accessory before the fact. Murder is an entirely different issue.

  • Pug

    The fact Mr. Holle was offered a plea deal because, in the prosecutor’s own words, “he was not as culpable as the others”, indicates an out of control prosecutor to me. Because the defendant refused the deal and exercised his right to a fair trial, the prosecutor asks for a life sentence?
    Is that the role of a prosecutor? To put someone whom he knows and admits is not as culpable as the others away for life? Why was the defendant not charged with the presumably lesser charges in the plea deal? Why should he be punished more harshly for taking his case to trial?

  • McKingford

    The Canadian example, with which I’m familiar, helps put things in perspective.
    In order to be convicted of murder, you need the mens rea for murder: you must have intended death (or at least grievous bodily harm knowing death was likely – not just possible). If you didn’t intend death, but you were a party to one of the other offences, you may be guilty of manslaughter, since death was a possibility.
    From the NYT article, this excerpt:
    Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victimsâAo rights group, said âAuall perpetrators of the underlying felony, not just the one who pulls the triggerâAu should be held accountable for murder.
    muddies the water a bit. In Canada, if four people participate in a robbery where the common intent is to kill the victim, then all parties are guilty of *murder*, regardless of who pulled the trigger. If, however, the common intent was a robbery but not a murder, but one of the parties pulls out a gun and kills the victim, the other parties stand liable for manslaughter: the test becomes whether death was objectively foreseeable. If none of the other parties knew a gun was going to be involved, it helps their defence (on the charge of manslaugher), that death was *not* objectively foreseeable.
    I say that the “victims’ rights” guy obfuscates a bit because I don’t think anyone is suggesting that all persons who participate in an “underlying felony” (ie. murder) are not guilty of murder, even if they didn’t pull the trigger. I have to say, though, that on the basis of the sketchy facts in this case it isn’t even clear to me that this guy would have been convicted in Canada of manslaugher, let alone murder.
    There’s a pretty simple reason to eliminate the felony murder provisions. Someone who intends to, and does, commit murder is far more *blameworthy* than someone who participates in a crime but does not intend death. That isn’t to say that the accomplice is not blameworthy, but to compare the intent to rob with the intent to kill is perverse.

  • Tyro

    The best explanation for justifying felony murder I’ve heard is that defendants party to a crime may simply all finger their accomplice as the guy who actually pulled the trigger. Felony murder makes these maneuvers all moot.
    However, when someone is in no position to game the system like that (like Mr. Holle and bosdcla14’s client), then felony murder makes no sense.

  • Is that the role of a prosecutor? To put someone whom he knows and admits is not as culpable as the others away for life?
    Yes, because District Attorney is an elected position in a country where “tough on crime” is tattooed into the inside of every reactionary’s eyelids, and a Assistant DA who won’t crush like a bug everyone tangentially involved with a killing will find themselves looking for a new job in short order.

  • StJoe

    Of course they can’t charge Holle’s mother or General Motors with murder, because they can’t charge them with being accomplices to the robbery, which requires a showing of intent to aid in robbery. The “no car, no robbbery” was confusing and poorly placed, but it was offered by the prosecutor to explain the theory for accomplice liability for robbery, not to justify felony murder doctrine (which cannot be justified).
    However, I can’t say for sure that Holle shouldn’t be charged with murder. I didn’t hear all the evidence of course, but if Holle was the accomplice to a robbery that entailed a great risk of death or grievous injury, then in most jurisdictions he can be charged with “depraved heart” murder, where the required mens rea is extreme indifference to the risk of death. The article adverts to some evidence that Holle knew that part of the plan for robbery was to knock out the victim. If the prosecutor could prove Holle was indifferent to the serious risk that the victim in this case would die or be seriously injured, then he can lock him away for murder anyways. These are not unheard of cases. For example, it’s possible to convict drunk drivers in egregious cases of depraved-heart murder.
    Therein lies my real beef with felony murder: the prosecutor doesn’t have to prove that level of culpability. He only needs to prove intent to aid in the robbery, and he can punish him even more severely than a perpetrator of depraved-heart murder. Beyond that felony murder doesn’t really deter effectively because few criminals are criminal law experts who know the felony murder doctrine.
    Another note: getting the death penalty in a felony murder case is harder given that there are some 8th amendment restrictions in play. But that’s cold comfort.

  • StJoe

    IIRC, you can be charged with felony murder if the outcome is a reasonably predictable consequence of your actions.
    That’s not felony murder, that’s “Pinkteron” liability. Felony murder has no “reasonably predictable” requirement.
    In Pinkerton jurisdictions, when you are convicted of conspiracy to commit a felony, you can be on the hook for murder if it was within the scope of the crime and was reasonably predictable. If you want to learn more you can read the published Pinkerton case, which IIRC is about a bank robbery.

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