Author: Guyora Binder
Publisher: Stanford, CA: Stanford Law Books/ Stanford University Press, 2012. 351p.
Reviewer: Kimberly Kessler Ferzan | July 2013
Most theorists scoff at felony murder. To them, it is just a form of unprincipled strict liability, unworthy of theoretical attention. Not Guyora Binder. Binder offers a probing analysis of both the history and the doctrine of felony murder.
If he had just stopped there, the book would have been a complete success. But he didn’t. Rather, Binder also seeks to offer a conception of culpability that he believes undergirds and justifies much of the law. It is only when the law extends beyond its normative justification that Binder argues that it ought to be trimmed back. To Binder, felony murder is a tree worthy of pruning, not a weed to be plucked. Unfortunately, I think there are significant worries about Binder’s theory of culpability, theories that threaten his justification of felony murder.
The book is divided into three parts. The first is a defense of what Binder calls an expressive conception of culpability. The second part is the history of the felony murder rule. The last part analyzes the current law, asking to what extent statutory reforms are necessary to bring the law into normative conformity with the expressive conception of culpability.
To do this book justice, let me start with what I truly admire about it. Binder cares about the history and the law of felony murder. Rather than take at face value the constant trope that felony murder is unprincipled strict liability inherited from the English common law, Binder analyzes felony murder then and now, finding that it bears little resemblance to its reputation. The depth and breadth of this historical exploration are breathtaking. There simply was no English common law of felony murder that was unthinkingly received into American case law. Felony murder is a creature of American statutes. (And the myth of felony murder is a creature of American scholars: “By the time of the American Revolution, the rule that an accidental death in the course of any felony was murder had become a standard theme in scholarly writing. Yet no English court had ever actually applied such a rule.” (P. 115))
More than dispelling the mythology, Binder also reveals that different states take different approaches to felony murder. Sure, some states have similar schemes, but you have to look at how all the parts within one state relate to the whole. You can’t just shift from a merger limitation in one state to an inherently dangerous limitation in another. The parts of the statutory scheme work together.
To put it simply, Binder respects felony murder, and it shows. Perhaps the most telling example of this is his lack of a model statute. Binder knows that different codes function differently, and thus, the reforms he recommends are not a level of broad generality, but at the level of nuanced twists that are state specific. Binder doesn’t deal in generalities; he pays attention to each state’s law. So, for instance, Binder appreciates that twenty-five states exhaustively enumerate which felonies are eligible for felony murder and fourteen additional states enumerate felonies but they are not exclusive. He then argues that although many of these felonies are inherently dangerous (and thus serve as a useful proxy for negligence at a minimum), the enumerations tend to include at least one felony (and sometimes different felonies) that are not inherently dangerous. Thus, the lesson for many jurisdictions is to banish burglary as a felony murder predicate, because Binder concludes burglary is not inherently dangerous, and the lesson for a handful of states is to get rid of drug offenses as predicates. No one who takes the law of her jurisdiction seriously can ignore the book. If I were refining a state’s law of felony murder, this is clearly the place I would start.
Although the practical, grounded parts of the book are exceptional, Binder’s defense of felony murder’s normative underpinnings is far less so. Binder finds the consequentialist defenses of felony murder to be lacking and seeks to defend felony murder on retributivist grounds. However, for felony murder to be justified, four claims are necessary and only jointly sufficient. First, felony murder statutes must capture negligence and not strict liability. Second, results need to matter. Third, negligence must be culpable. Fourth, negligence has to have the potential to be as culpable as other killings that are designated as murder.
Let’s take each step in turn. Binder does make a compelling case for felony murder as a crime of negligence, not strict liability. Indeed, one of the best arguments in the book is Binder’s explication of the relationship between formal and substantive strict liability. Building on the work of Mark Kelman and Ken Simons, Binder makes a convincing case that felony murder most often approximates negligence and it is only formally, not substantively, strict. After all, if a state limits felony murder to inherently dangerous felonies, then it is hard to see how a reasonable person would not recognize his conduct to be dangerous. One might be able to imagine worrisome instances of over inclusiveness (the underlying felony might not always be inherently dangerous in each instance of commission), but the potential for over inclusiveness is inherent in the nature of rules.
I will not offer a defense of why results don’t matter. I have done that elsewhere. Rather, I will deny that Binder’s expressive conception of culpability justifies negligence and justifies catapulting some negligent killings into the classification of murder.
Is negligence culpable? Binder has two moves to argue that it is. First, he claims that his expressive conception of culpability justifies negligence, even if a cognitive conception does not. Second, he claims that negligence can be quite culpable when it expresses significant indifference to others, indifference revealed by the commission of the felony.
Binder claims that there is a debate between cognitivists and expressivists. According to Binder, cognitivists care about the mechanics of the choice, dealing with questions of risk and harm, whereas expressivists care about the meaning of the choice, probing the reasons why the defendant acted. Notice how the argument runs from here. The rapist, the arsonist, and the robber all reveal significant contempt for others’ lives by choosing to pursue their felonious deeds. And this expression can be sufficiently significant so as to warrant substantial punishment.
The problem is that Binder’s dichotomy is a false one. As I argued in Holistic Culpability, the cognitive and the expressive are just opposite sides of the same coin. We don’t judge the defendant because she thinks about risks mechanically. We judge her because we look at what she does and why she does it and evaluate her. We want to know what the risk the person foresaw was, and why the person imposed that risk. Both are necessary for the evaluation of recklessness. In our book, Larry Alexander and I argue that insufficient concern is the unified conception of culpability, and we offer a conception of recklessness that embodies this calculation. The idea is that when one takes risks for insufficient reasons one is culpable. Bottom line: cognitivist theorists care about the meaning of choices and the reasons why they were made.
On the other hand, expressivism, without mechanics, lacks an essential inquiry. We should not ask “the normative meaning of the felony” as Binder suggests unless and until we understand what the defendant averted to. I may desire to fire my gun because I hate other people, but there is a huge difference between aiming at you and aiming in the air in an empty field. The risk the actor believes he is imposing partly determines the meaning of the action.
So-called cognitivists certainly care about the indifference expressed by purposeful, knowing, and reckless killings. Moreover, the paradigmatic felony murders, such as killings resulting from rape, robbery, and arson, aren’t typically going to be negligence cases. They are recklessness cases. Most defendants are going to be consciously aware of a risk of death when they beat a woman senseless to have intercourse with her, or point a gun in someone’s face to get his wallet, or set a house on fire. That is, most instances of felony murder could likely be prosecuted as extreme indifference homicides. If so, the question turns to whether it is appropriate to remove the question of the defendant’s mens rea as to death from jury consideration by presuming it via the commission of an inherently dangerous felony. Such a statute would strike me as troubling over inclusive, but this is not the focus of Binder’s argument.
Binder is defending negligence. He is claiming that the principle of dual culpability—the expression of hostility from committing an inherently dangerous felony combined with negligence vis-à-vis death—is sufficient for substantial criminal punishment. Again, we have to imagine, not the paradigm cases of recklessness, but cases where the defendant does not advert to the risk of death or grossly underestimates it. Once we are talking about negligence, however, then as discussed by Heidi Hurd and Michael Moore, the reasons individuals are negligent vary widely from being “awkward,” to “stupid,” to “weak,” to “selfish.” That is, actors with all sorts of failings may fail to live up to the reasonable person standard. Although I reject the reasonable person test on other grounds, it is important to note that even those who think that negligence can be culpable ought to reject some of these categories for criminal law. Having a low I.Q. might prevent one from living up to a standard such that one imposes risks unknowingly, but it is hard to believe that that can render one a criminal, much less a murderer. It is certainly possible, for instance, that a defendant with a low I.Q. might meet the mens rea required for rape, while failing to understand that he is also imposing a risk of death. The range of failings that can lead to negligence bear little resemblance to expressions of hostility to others.
But what about the selfish? These are doubtless the individuals Binder has in mind. They are the individuals who don’t appreciate the risks they impose on others because they don’t care enough about others to observe the risks. And indeed, the reason they are selfish is because they aim at a felony! Hurd and Moore, like Alexander and I, think there is a problem with punishing these actors because they lack the requisite degree of control over their characters. This is the precise point where Binder needs an argument that selfish actors are still fairly held accountable for their failures to realize risks. The evaluative conception of culpability does not answer this question. The meaning of the choice to commit a felony is the culpability of that felony, complete with when, how, and why it was accomplished. I agree that that can be very culpable, express profound hostility, and ought to be punished severely. However, Binder’s expressivist position – that these felonies express contempt for others—combined with negligence vis-à-vis death still can’t do the work he wants it to do. Negligent acts done for selfish purposes are still negligent acts. Felonies done for bad reason are culpable felonies. But the commission of the felony, and its attendant culpability, does not answer the concern of the opponents of negligence theory and that is the concern that punishing for negligence bottoms out in nothing other than punishing for character.
Moreover, although I think negligence does not belong within the province of the criminal law at all, even among theorists who are sympathetic to negligence liability, Binder does not provide the argument that this selfishness could possibly be sufficient not just for manslaughter liability but for murder liability as well. That is, when an individual is unaware or misestimates the risk of death, how can this be on par with those who intend to kill or consciously risk killing? If I commit arson, but I have checked out the building and truly believe it to be abandoned and truly believe the fire to be containable, how am I a murderer just because I failed to check one room that contained a sleeping homeless man? How so, even if the reason I don’t check is because I am distracted with thinking about how I will get rich by collecting the insurance money from the arson? Binder argues that there is dual culpability in felony murder cases—negligence vis-à-vis death and an independent felonious purpose—but negligence vis-à-vis death is sometimes just that, negligence vis-à-vis death. There is no moral alchemy that can make one more culpable vis-à-vis x just because one is culpable vis-à-vis y.
Ultimately, Binder has made the case that felony murder ought not to be cast out of the criminal law as a grotesque creature of unregulated strict liability. He has shown that these statutes are worthy of greater consideration and scrutiny, and thus, this book has made a lasting contribution to our understanding of felony murder.
Larry Alexander and Kimberly Kessler Ferzan, with Stephen J. Morse, Crime and Culpability: A Theory of Criminal Law (Cambridge University Press 2009)
Kimberly Kessler Ferzan, Holistic Culpability, 28 Cardozo Law Review 2523 (2007)
Michael Moore & Heidi Hurd, Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence, 5 Criminal Law and Philosophy 147 (2011).
Kimberly Kessler Ferzan, Distinguished Professor of Law, Rutgers University, School of Law—Camden.