Legal scholars are almost unanimous in condemning felony murder as a morally indefensible form of strict liability. This Article provides the long-missing principled defense of the felony murder doctrine. It argues that felony murder liability is deserved for killing negligently by means of a violent or apparently dangerous felony involving an additional malign purpose independent of physical injury to the victim killed. This claim follows from the simple idea that the guilt incurred in attacking or endangering others depends on one’s reasons for doing so. The article develops this idea into an expressive theory of culpability that assesses blame for harm on the basis of two dimensions of culpability: (1) the actor’s expectation of causing harm and (2) the moral worth of the ends for which the actor imposes this risk. It contrast this theory of culpability with the narrowly cognitive theory of culpability prevailing among criminal law scholars. It shows that the cognitive theory is motivated by the aspiration to achieve a value-neutral criminal law. Next it shows that it is impossible to assign culpability for a particular injury like homicide without evaluating actor’s ends. In addition, the article shows that an expressive theory better fits the overall pattern of American criminal law doctrine than does a purely cognitive theory of culpability. Finally, it argues that liberal political theory does not require that criminal law maintain value neutrality.
Notre Dame Law Review
The Culpability of Felony Murder,
Notre Dame L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/296