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Sunday, December 02, 2007

Sean Taylor and the Effect of Harm in Criminal Law

One of the investigators talking about the death of Washington Redskin player Sean Taylor stated that he didn't think the killer planned to kill.  The investigator noted that the placement of the bullet -- and everything he knew about the crime -- suggested that this was a burglary that went wrong.  He said that while the burglars likely knew Taylor lived in that home, there is nothing to suggest that they harbored any animosity toward him. 

The charges filed against these burglars who killed: first degree felony murder.  Felony murder has long had its critics -- and for good reason.  If during the course of committing a felony (in many states, only a felony designated as inherently dangerous), a death occurs in a foreseeable way, then the offender is on the hook for the most serious category of murder.  In Florida, felony murder is punishable by death.  (This is not true in all states, including Virginia, which per capita leads the nation in executions.)  Criticism of the felony murder rule is certainly not limited to academics.  In Florida, there's a citizen's group calling for the abolition of the rule.   http://felonymurderfl.org/

Felony murder is not the only example of severe punishment for forseeable, but unintended results -- it is however the most well-known.  Conspirators are liable for the forseeable actions of their co-conspirators.  In some jurisdictions, those who aid or abet one crime are liable for the foreseeable, but unintended results of the crimes they aid or abet.  These rules are obviously problematic because they permit punishment based on chance -- and impose sanctions on those who cause the most harm as opposed to those who are the most morally culpable. 

It is hardly offensive, however, to apply the felony-murder rule to Taylor's case.  Taylor's death was not just bad luck -- or the result of a somewhat foreseeable, but unlikely chain of events.  Taylor did not die of a heart attack -- he died of a gun shot wound to the groin.  Even if the investigator is correct that a shot to this region of the body is not a typically indicative of intent to kill -- a shooter aiming a bullet there must be aware of an extraordinary high risk of death -- to the point that it would not be unfair to say the shooter knowingly caused a death.  Premeditation can be formed in an instant -- here, there was much more thought than that.   The shooter entered Taylor's house prepared to use a weapon against someone if necessary -- even if he had no animosity toward Taylor.

A felony murder charge in Sean Taylor's case is not unfair, quite the opposite.  The Taylor case, though, raises the question of why the felony murder rule is needed.  His killers could have been convicted under the ordinary first-degree murder rule.  Likely, though, the Taylor case will destroy whatever momentum the grass-roots movement against the felony murder rule had gained in Florida. 

Posted by Wes Oliver on December 2, 2007 at 11:36 AM in Criminal Law | Permalink


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a shooter aiming a bullet there must be aware of an extraordinary high risk of death

This seems like the definition of depraved heart murder that Florida makes second degree murder:

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084. - 782.04(b)(2)

So, I doubt that the killers could be convicted on first degree murder charges in Florida, absent the felony-murder rule. The state appears to allow for near-instantaneous premeditation (see note 5 in this case) but the decision must be made "to kill."

Depraved heart murder sweeps in such crimes as firing a gun randomly into a crowd or playing Russian roulette. Felony-murder takes into account the additional evil intent of committing the felony and transfers it to the killing. Depraved heart (2nd degree murder) + intent to commit dangerous felony = felony-murder (1st degree murder)

Posted by: Greg | Dec 3, 2007 12:40:04 PM

There's something very nice packed into Steve's comment, which I very much appreciate. I'd offer only the following by way of response. Many jurisdictions infer the intent to kill from discharging a deadly weapon at a vital organ. Is the groin a 'vital organ'. Not to be comical about a very serious issue, but it seems pretty vital to me... But more importantly, it seems to me highly likely to kill. It is a rebuttable presumption, though - so let's say the killer convinces the jury of the facts Steve hypothesizes - the gun went off as he ran away. Should that be the highest form of murder? Is he the most culpable? Perhaps I am just substituting a felony-murder rule for discharge-of-weapon-at-vital-organs-presumes-intent-unless-you-convince us-otherwise rule. Less catchy to be sure, but seems to permit a tighter fit between culpability and punishment.

And I simply agree with Abe's point, but I am not sure that judicial/prosecutorial economy worth the trade-off on felony murder, or Pinkerton liablity for that matter.

Posted by: Wes Oliver | Dec 2, 2007 4:08:18 PM

His killers could have been convicted under the ordinary first-degree murder rule.

It's a lot easier to get first-degree murder convictions under the felony murder rule than to prove intent and complicity, though.

Posted by: Abe Delnore | Dec 2, 2007 2:18:43 PM

I'm not sure if it's the best idea to stretch the knowledge element of ordinary first-degree murder to meet this case. Yes, intent can form in an instant, but if the shooter intentionally shot low as he ran off (for example), I'm not sure we should say that he had "knowledge" as to the result (death). This case is unsympathetic, for sure, but I think the standard we'd create would elevate many reckless forms of homicide to murder one. While I'm no staunch supporter of felony murder, I'd rather have Taylor's killers be charged with that rather than having a broad scope for first-degree murder.

Posted by: Steve | Dec 2, 2007 2:17:51 PM

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