Felony Murder (Critical Perspectives on Crime and Law)

Reasons to criminalize exist, as it is often put, only where law-makers have standing. And the mere fact that a wrong generates the aforementioned secondary duties does not itself give law-makers standing to criminalize it. According to a second objection, the focus on moral wrongdoing is unduly restrictive: According to one argument for this conclusion, the stable existence of almost any valuable social institution—be it financial, educational, familial, military, or political—depends on widespread compliance with its rules. Under realistic conditions, criminal liability for violation is necessary for stability.

It is the value of stable institutions, not the moral wrongfulness of violating their rules, that justifies bringing criminal law into existence Chiao A third objection returns us to the asymmetry discussed at the end of section 1. Many of the powers and permissions by means of which criminal justice is done are withheld from private persons. Most obviously, private persons are not typically permitted to use force to punish others for crime.

Few think that this should be changed. Vigilantism should remain criminal.

Theories of Criminal Law (Stanford Encyclopedia of Philosophy)

If the values that justify having criminal law are essentially public, we appear to have an easy explanation of this fact: If those values are not essentially public, things are more difficult. Let us take the third objection first. If impersonal values justify having criminal law, we have reason to opt for whichever set of legal rules will realise those values most efficiently.

If one set of powers and permissions will achieve more of the value in question at a lower cost, we should—all else being equal—opt for that set. Now compare two sets of rules. One permits state officials and private persons alike to use force to punish criminals. Another withholds the permissions granted to the former from the latter. We have good reason to think that the first set of rules would bring with it significant costs.

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Private persons are likely to make more mistakes about who committed crimes, and about how much punishment is appropriate for criminality. Different private punishers are unlikely to punish similarly placed offenders in similar amounts. And as their actions are less easily subjected to public scrutiny, private persons are less easily compelled to punish for the right reasons—in order to do justice rather than settle scores, get revenge, or maximise their profit margins Moore a, 42; Edwards forthcoming.

Avoiding these costs is a strong reason to opt for the second set of rules. True, that set prevents proportionate punishment being imposed by our imagined moot court. But it is plausible to think that this benefit is outweighed by the aforementioned costs. If it is, those who appeal to impersonal values to justify criminal law can explain why the moot court is not permitted to force us to give up our money. According to the second objection, what justifies having criminal law is its role in stabilizing valuable institutions. By preventing these wrongs, and holding wrongdoers responsible, we stabilize the institutions.

The contrast between a general justification focused on moral wrongdoing, and one focused on institutional stability, therefore turns out to be a false contrast Tadros , These observations help make a more general point. We can accept that criminal law is a tool properly used to support financial, educational, familial, military, and political institutions. If this kind of general justification is not too restrictive, is it nonetheless too expansive? This was the first of the three objections raised above. We need not infer that criminal law is unconcerned with moral wrongness.

We need only accept that there are facts about criminalization which give law-makers a duty not to criminalize some moral wrongs. There are many such facts, and their force varies depending on the wrong Simester and von Hirsch , —; Moore In some cases, criminalizing a wrong will inevitably result in selective enforcement, raising concerns about selection being made on discriminatory grounds.

In others, enforcement would necessitate gross invasions of privacy, and require the law to take sides in conflicts better resolved by the parties themselves. There is often value in freely choosing not to act wrongly, and in so choosing for the right reasons, rather than because one was coerced: It will almost inevitably divert scarce resources from other valuable priorities. And there is often reason to think that criminalization will not result in there being less wrongdoing in the world.

Criminal conduct may be driven underground rather than made less common. Institutions of punishment may house unseen abuse and victimization. Ex-offenders may be driven towards crime by their reduced prospects in life. Where reasons like these generate a duty not to criminalize a wrong, the conduct in question is no business of the criminal law.

No-one denies that some things should not be criminalized. What is less clear is how we are to work out what these things are. One approach is to seek constraints on permissible criminalization. Even if the values that justify having criminal law count in favour of criminalization, our reasons to do so may be defeated by reasons that count against. A constraint identifies conditions under which the latter reasons always win. Consider, for example, the wrongfulness constraint:. Principles like W give us a line we can draw without reference to at least some morally salient particulars.

Conduct that falls outside the line may not be criminalized come what may. Imagine we are considering whether to make it a crime to possess guns. Doing so will prevent a great deal of harmful wrongdoing that cannot be prevented otherwise. This is a powerful moral reason to criminalize. But if W is sound, and gun possession is not morally wrongful, that powerful reason is irrelevant to the decision with which we are faced.

We are not permitted to criminalize, however much harm criminalization would prevent Moore , 72—73; Simester and von Hirsch , 22—23; Duff b, — Some suspect that all purported constraints on criminalization fail Duff et al , 44—52; Tadros , 91— This is not to say that anything goes. It is rather to say that we cannot use a line like that drawn by W to work out what is permissibly criminalized. To trace the limits of the criminal law, we must engage in a more complex normative exercise: The limits of the criminal law cannot be traced in advance of this exercise.

Instead, they are determined by it. The constraint to which most attention has been paid is the so-called harm principle. It is nowadays widely recognised that there is no single such principle. Rather, there are many harm principles Tadros a; Tomlin b; Edwards These principles have very different implications.

That conduct is harmful, or unreasonably risks harm, does not show that we will prevent a proportionate amount of harm by criminalizing it. Conversely, we may be able to prevent harm only by criminalizing conduct that is harmless, and that does not unreasonably risk harm. To see the first point, consider the use of drugs. Criminalizing use may turn a drug into forbidden fruit that is more attractive to potential consumers, and place production in the hands of criminal gangs who make consumption ever more harmful.

Users may become less willing to seek medical treatment for fear of exposing their criminality, and may end up with criminal records that lead to social exclusion, and damage their employment prospects for years to come United Nations Where criminalization does have these effects, the harm it does is out of all proportion to any harm prevented.

To see the second point, consider the possession of guns. Possessing a gun is not itself harmful. And many possess guns without unreasonably risking harm. If one endorses HPP , things are different. What matters is not the effect of each instance of gun possession, but the effect of criminalizing all of them: To apply W we need to know what makes something morally wrongful. But while this is necessary, it may not be sufficient. I have decisive reason not to go out in the rain without my umbrella. But it does not seem morally wrongful to do so Tadros , 11— Whatever the correct criterion, we must ask how law-makers are to apply it.

We must also ask whether just any morally wrongful act will do. Some wrongful acts also violate rights, such that those who commit them wrong others. Some crimes are mala in se —they criminalize conduct that is morally wrongful independently of the law. Most crimes are mala prohibita —they criminalize conduct that, if morally wrongful at all, is morally wrongful partly in virtue of the fact that it is unlawful. Is W compatible with the existence of mala prohibita?

That depends on the extent to which changes in the law can produce changes in morality. The rules of the road are the classic case.

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Apart from the law, it is morally wrongful to drive dangerously. Such conduct is malum in se. What we should do to conform to this moral norm is not always obvious. To help, the law puts in place rules that tell us which side of the road to drive on, when to stop, and how fast we may go. Imagine we obey these rules. In doing so, we drive more safely than we otherwise would have: One proposal is that it is morally wrongful to violate legal norms that have this effect: Mala prohibita of this kind would then be compatible with W. Of course, things are not so straightforward.

Even if legal conformity generally improves our moral conformity, there may be exceptional cases in which it does not—in which we can violate the rules of the road without putting anyone in danger, or in which violation helps keep everyone safe. And there may be people for whom even the generalization is not true—whose expertise enables them to systematically violate legal norms without creating risks any greater than those created by the rest of us. Can an explanation be given of why these violations are nonetheless morally wrongful?

If not, W implies that even morally beneficial mala prohibita —like the rules of the road—must ultimately be removed from the criminal law Husak , —; Simester and von Hirsch , 24—29; Wellman Most views are comparative: One challenge is to identify the relevant baseline. Are we harmed by an event if we are worse than we would have been if things had been different?

If so, different how? Are we harmed if we are worse off than we were immediately beforehand? Or should we focus not on the position we were or would have been in, but on the position we should have been in morally speaking Holtug ; Tadros , —?

2. Functions of Criminal Law

A second challenge is to determine in what way we must be worse off. The wider our answer to this question, the more likely it is that harm principles collapse into their supposed rivals. Some say we are harmed when our interests are set back Feinberg , 31— But it is plausible to think that we have interests in avoiding disgust, annoyance, and dismay. Many people are disgusted, annoyed, or dismayed by what they take to be morally wrongful.

On an interest-based view, they are also harmed. Any harm principle that uses this notion of harm thus threatens to permit criminalization of much conventional immorality Devlin A narrower view has it that we are harmed only if our future prospects are reduced, because we are deprived of valuable abilities or opportunities Raz , —; Gardner , 3—4; Simester and von Hirsch , 36— Disgust, annoyance, and offence need not—and often do not—have this effect.

So they need not be—and often are not—harmful. Whatever view of harm we take, we must also decide whether all harms count for the purposes of a given harm principle. People sometimes harm themselves, they are sometimes harmed by natural events, and harm is sometimes done consensually. Recall that if we endorse HPP , we must decide whether the harm criminalization prevents is proportionate to the harm it does. Can we include all the aforementioned harms in our calculations? Or must we only include harm done to others without their consent Mill ; Dworkin ; Feinberg ; Coons and Weber ?

Be that as it may, whether we take into account other harms remains important: As well as asking how constraints might be clarified, we must ask how they might be defended. One type of defence proceeds from within our theory of ideals. A theory of ideals includes an account of the values that bear upon how we should act, and of the priority relations between those values Hamlin and Stemplowska To see how such a theory might generate constraints, consider W. One argument for that principle is the argument from conviction Simester and von Hirsch , 19— One response to these arguments is that criminal law does not always censure or stigmatize.

Another is that the arguments rely on priority claims that cannot be sustained. The argument from conviction depends on our accepting that moral defamation cannot be justified. The argument from punishment depends on our accepting that those who do not act wrongly have an absolute right not to be punished. These claims may be too strong. To test the second, think again about possession of guns. Imagine that we criminalize possession, and that we have good reason to think that we can thereby save many lives.

It is plausible to think not. This would likely result in some lives being lost. The fact that not punishing safe possessors would probably have this effect is a good reason to think that safe possessors lack a valid complaint if they are punished. It is a good reason to think that it sometimes is permissible to punish the morally innocent. If it is, premise 3 of the argument from punishment is false Tadros , — Whatever one thinks of this means of prevention, it is not the means we utilize when we make use of criminal law.

Absent perfect compliance, criminal law prevents wrongs by publicly making accusations, condemning people as wrongdoers, and punishing them for their wrongs. Public accusations often stick even if nothing comes of them. Punishment is harmful by its very nature. Some claim that we can justify causing such harm—at least when the state does the harming—only if this is a necessary and proportionate means of preventing people being harmed. So it is impermissible to criminalize when this condition is not satisfied. One might reply that the harm internal to justified punishment is harm we lack reason not to impose.

Leaving this aside, it is far from obvious that harm has lexical priority over other values. The above argument for HPP seems to depend on this claim. But there is wrongdoing that is both serious and harmless. It is plausible to think that the value of preventing such wrongs, even when this does not prevent harm, is at least sometimes capable of justifying the harm done by criminalization Tadros , — A second defence of constraints proceeds from within non-ideal theory: One might say that all criminal law theory is part of non-ideal theory—that we have reason to have criminal law precisely because people will otherwise act wrongly.

Be that as it may. As well as fallible agents who would otherwise commit crimes, there are fallible agents who make, apply, and enforce criminal laws. Any non-ideal theory must also take account of the errors the latter are disposed to make. Some are errors of application and enforcement—errors made when police officers arrest, prosecutors charge, and courts punish the innocent. More important for present purposes are the errors law-makers are disposed to make when creating crimes.

These errors matter here for the following reason. If followed, speed limits prevent some drivers from driving in ways that are impeccable in isolation. Let us grant that, when followed, constraints like W or HPP prevent some law-makers from criminalizing in ways that are impeccable in isolation.

Many defenders of HPP offer defences that proceed in the manner just described. One error is that of underestimating the value in lives very different from our own: A second error is that of underestimating the value of toleration. That value includes making space for experiments in living, which both help combat prejudice by exposing people to the unfamiliar, and help people develop deliberative faculties by exposing them to that with which they disagree Mill ; Brink If the main effects of criminalizing drug use are felt in communities the affluent shun, it is not hard to see how law-makers could be blind to the amount of damage criminalization does.

Law-makers who make each of these errors will be tempted to create criminal laws that are anything but impeccable—laws designed to suppress activities the value in which has been missed, which do much more harm than their designers anticipated. The case for HPP is that it stands in the way of this temptation. Those who follow it must tolerate conduct—however offensive or immoral they deem it to be—unless they can show that criminalization is a necessary and proportionate means of preventing harm. Harm-based arguments are nowadays ubiquitous when proposed criminal laws are discussed.

Some think this shows that HPP is no constraint at all Harcourt But it is no surprise that those who merely pay lip service to a principle are not constrained by it.

The argument of the previous paragraph was an argument that HPP should be followed. To follow that principle is to take seriously the need for an empirical showing—grounded in adequate evidence—that a given law is necessary to prevent a proportionate amount of harm. A better objection is that the error-based argument is incomplete. How widespread would error be if law-makers took themselves to be free of HPP? When are the benefits of following HPP —in errors prevented—worth the costs—in otherwise impeccable criminal laws?

Might there be some other rule that brings us those benefits at a lower cost than HPP?

We need answers to all these questions, and more, to know if an argument from within non-ideal theory can support HPP Tadros , 94— A number of other possible constraints on the criminal law have been proposed Dan-Cohen , —; Ripstein As mentioned earlier, some are skeptical of all such principles. The correct response to this skepticism remains unclear. One possibility is that a defensible general line can indeed be found. The question is where the line is, and how it is to be defended against objections like those sketched above. If so, we must ask what shape that theory ought to take, and how lofty should be the ambitions of those who construct it.

Elements of offences that require particular mental states are known as mens rea elements. Other elements are known as actus reus elements. Responsibility is understood here as answerability Duff , 19— While we are answerable to the courts for committing offences, we may avoid liability by offering satisfactory answers in the form of defences. This account of criminal responsibility—call it the answerability account —relies on a distinction between offence and defence to which we will return.

One argument for the answerability account invokes rules of criminal procedure and evidence. The best explanation of these rules, so the argument goes, is that offending acts generate a duty to answer that is otherwise absent. Some think that, on closer inspection, our rules of procedure and evidence fail to support the answerability account, and help to undermine it.

This matters here for the following reason. It suggests that we owe the criminal courts answers not for acts that are offences but for acts that are crimes —for offending acts which do not satisfy an available defence. Obviously enough, it is for crimes that we are criminally liable. If responsibility is answerability, and we are answerable for crimes, the conditions of criminal responsibility and the conditions of criminal liability are one and the same.

What should these conditions be? There has been much discussion of the mens rea principle MR:. Standard mens rea requirements include intention and recklessness. Whether criminal responsibility should require mens rea , and what mens rea it should require, both depend on the reasons we have to accept MR. Perhaps the most familiar defence appeals to the culpability principle C:. Culpability, as that term is used here, is a moral notion. It is synonymous with moral fault or moral blameworthiness.

Mens rea is not sufficient for culpability—even intentional killings are sometimes excused. But it may well be necessary—culpability may presuppose at least some element of mens rea Simester ; cf. If this is so, the debate shifts to whether we should accept C. One worry about this principle is its generality. The consequences of criminal liability are not always especially burdensome. And the benefits of liability without culpability may be especially significant. To take but one example, think of regulations that govern the activities of corporations, and which protect the health and safety of the public at large.

Making it a criminal offence to violate these regulations, and imposing hefty fines, need have none of the destructive effects of imprisoning individuals. Dispensing with culpability requirements may increase the deterrent effects of the law, by making it harder for violators to escape conviction. Whether C is sound depends on whether effects like these—which, ex hypothesi , protect the health and safety of many—can justify imposing criminal liability without culpability.

That C may admit of exceptions does not, of course, show that C is not generally sound. I suggested above that, where C does apply, it entails MR. How much mens rea C requires is a further question.

Theories of Criminal Law

Take the offence of causing death by dangerous driving. The actus reus of the crime requires two things: Some think that C calls for two mens rea requirements: The idea that each actus reus element should have a corresponding mens rea element is known as the correspondence principle Ashworth Whether C in fact supports that principle is a matter of debate. It is sometimes the case that the risk of causing some harmful outcome like death helps make it the case that an act like dangerous driving is wrongful.

There is an internal connection, in these cases, between our assessment of the act and the risk of the outcome. Conformity to RL is a matter of degree. But an especially high degree of conformity is expected of the criminal law. Another is the damage a guilty verdict does to the life of the accused. In this way, mens rea requirements contribute to personal autonomy by increasing our ability to steer our lives away from criminal conviction and punishment. In doing so, Guyora Binder opens a path to a fundamentally new way of understanding the role of criminal law in contemporary society.

Truly one of the outstanding contributions to criminal law theory in our time. He uses law, history, politics, and related social sciences to demonstrate the philosophical complexity of the felony murder rule, often ignored by scholars. This inventive and highly philosophical book is best suited for lawyers, graduate students, scholars, and those generally interested in the philosophy of law.

He is the coauthor of Criminal Law: Would you like to tell us about a lower price? If you are a seller for this product, would you like to suggest updates through seller support? The felony murder doctrine is one of the most widely criticized features of American criminal law. Legal scholars almost unanimously condemn it as irrational, concluding that it imposes punishment without fault and presumes guilt without proof. Despite this, the law persists in almost every U.

Felony Murder is the first book on this controversial legal doctrine. It shows that felony murder liability rests on a simple and powerful idea: In presenting this idea, Guyora Binder criticizes prevailing academic theories of criminal intent for trying to purge criminal law of moral judgment. Ultimately, Binder shows that felony murder law has been and should remain limited by its justifying aims. Read more Read less. Review "Guyora Binder's exploration of the historical and doctrinal subtleties of the felony murder rule is lucid and brightly illuminating.

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