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Leagally Speaking



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03/01/2011 - American law is, by international standards, a series of innovations and exceptions. This is the second in a series of articles this year that will examine commonplace aspects of the American justice system that are unique in the world.

Adam Liptak originally researched and published these articles in 2007 and 2008. With permission from The Wall Street Journal, Mr. Liptak's articles have been edited for space, and we will try to update his reports with recent statistics or rulings that may have changed the law since the articles were first published.

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AMERICAN EXCEPTION MURDER, ONCE REMOVED

By Adam Liptak, The Wall Street Journal, December 4, 2007

Imagine that a groggy and hung-over 20-year-old lends his car to a friend after a raucous party that lasts into the early morning hours. The friend uses the car to drive three other men to the home of a marijuana dealer, aiming to steal a safe. The burglary turns violent, and one of the men kills the dealer's 18-year-old daughter by hitting her in the head with a hard object.

The car owner is miles away when it all goes down, but it does not matter. He is charged with murder under a distinctively American legal doctrine called the felony murder rule that makes accomplices as liable as the actual killer for murders committed during felonies.

This type of criminal charge is leveled against accomplices in more than 30 states across America. Wyoming prosecutors recently charged an accomplice of a felony-ending-in-murder under the felony murder rule. In that case, the accomplice helped plan and carry out the crime. A jury in Sheridan found him guilty of felony murder in September 2010, even though he did not pull the trigger.

Most scholars trace the doctrine 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. And, if a group of people is jointly engaged in a felony, and one of them kills someone during the felony, everyone in the group is liable for the act of murder.

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." Even countries outside the common law tradition agree. "The view in Europe," said a professor of comparative law at Yale, "is that we hold people responsible for their own acts and not the acts of others."

Does the felony murder rule result in disproportionate justice? The families and friends of the victims do not think so. Prosecutors and victims' rights groups in the United States say that punishing accomplices as though they had been the actual killers is perfectly appropriate. The position of the Criminal Justice Legal Foundation is that "all perpetrators of the underlying felony, not just the one who pulls the trigger" should be held accountable for murder.

Prosecutors also justify the doctrine on the ground that it deters murders. They say accomplices who know they will face harsh punishment if someone dies in the course of a felony may leave deadly weapons at home, or decide not to participate in the underlying felony at all.

But the evidence of a deterrent effect is thin. An unpublished analysis of FBI crime data from 1970 to 1998 by a University of Chicago law professor found that the presence of the felony murder rule had a minimal effect on whether a murder was committed during a felony.

About 80 people have been sentenced to death in the last three decades for participating in a felony that led to a murder, although they did not kill anyone. But, not every state's version of the felony murder rule is as strict, and a few states, including Hawaii, Kentucky and Michigan, have abolished it entirely. "The felony-murder rule completely ignores the concept of determination of guilt on the basis of individual misconduct," the Michigan Supreme Court wrote in 1980.

The vast majority of states retain it in various forms, but courts and officials have taken occasional steps to limit its harshest applications. Frequently, prosecutors offer plea bargains to minimally-involved accomplices, but not to the other participants. Governors have been known to commute the death sentences of accomplices convicted under the felony murder rule.

As for the four men who broke into the home? Prosecutors sought the death penalty for the man who actually killed the 18-year-old girl, but he was sentenced to life without parole. The men who entered the home with him, and the man who drove the car also received life sentences.

The prosecutor recognized that the car owner was less culpable than the other participants, and offered him a ten-year prison sentence, which he turned down. At his trial, the jury found that the car owner knew enough about the burglary plan to be considered an accomplice to the crime. He did not aid in the brutal murder of the young woman. He did not participate in the burglary. He did not help plan the crime. But in America, he is serving the same life sentence as the others. Guilty of murder, once removed.

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Nothing in this article should be construed as legal advice. You must consult with an attorney for the application of the law to your specific circumstances.

R. Michael Shickich is the founder of the Injury Law Firm located in Casper. The focus of his practice is personal injury and wrongful death cases.

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

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