A Question For Any Lawyers Out There
Posted in Legislation, Quickies, Thinking Critically on | 1 minute | 27 Comments →
Hi all, sorry for the decline in posts, but I’m effectively nauseated by (a)theism discussions right now, and I still want to debate computers, if nothing else, simply because they don’t get butthurt and call imply that people are losers prematurely.
So, a quick question: In some (all?) states, when two people commit a violent felony and one of them gets killed, by what logic is it fair to charge one criminal for the murder of another?
This has never made a lick of sense to me. The way I see it, if Drake and Tubbs decide to rob a store, and that store owner kills Drake – how is it ethical to prosecute Tubbs for murder? Am I missing something here? It sure feels like it.
Spanish Inquisitor
says...There are a couple of different competing, and sometimes overlapping, policy reasons behind criminal statutes. One is to punish the criminal for his transgressions. Another is to deter others from committing the crime in the first place. (There are others that I don’t remember from my law courses. I’m not a criminal lawyer.) I think statutes that arbitrarily impose penalties on actors who don’t directly contribute to the crime, but do so indirectly, fall into the latter category.
In your hypo, a statute that says that Tubbs is responsible for the death of Drake, even though he didn’t pull the trigger, simply because he helped put into motion the actions that led to the death of Drake, is basically an attempt to deter others. You’re saying to potential criminals “You may have no intention of someone getting hurt, but if for any reason someone does, we’ll treat you as if you caused the harm, regardless of whether you did it. So think twice about putting yourself in that situation in the first place.”
Whether it actually deters anything, is another question, but I think that’s the theory.
Lifeguard
says...It’s commonly referred to as “the felony murder rule,” and I’d concur with SI’s opinion as far as the policy reasons. It’s not completely unlike conspiracy laws either, where I believe a conspirator is guilty of all crimes committed by co-conspirators in the course of the criminal enterprise.
cl
says...Thanks guys, helps a tad, but not quite what I was looking for. What I’m interested in is any argument that can ethically justify this ‘deterrent’ statute. Tubbs clearly did not murder anyone in the example, so how is it ethical to pin a murder rap on him? Do either or both of you believe the “felony murder rule” is ethical? If so, why? If not, why not?
I don’t believe it’s ethical to punish people for crimes they didn’t commit. Do either or both of you?
Lifeguard
says...You wrote: “I don’t believe it’s ethical to punish people for crimes they didn’t commit. Do either or both of you?”
I haven’t given it a whole lot of thought since law school to tell you the truth, since, like SI, I’m not a criminal defense attorney or a prosecutor. It’s also so stamped into my head to look at these kinds of facts from a legal standpoint that it’s hard to get out of that mindset and think about it from a purely ethical point of view.
The issue, however, needs to be refined a bit when you’re talking about the felony murder rule, because it only applies when the murder took place during the commission of a felony– in lay terms “one of the more serious crimes.”
Felonies generally involve some form of violence or force(rape, robbery, et cetera), so part of the theory behind the rule is that if you’re going to engage in a violent crime, you will be held responsible for any homicide that takes place during the course of that crime (ie, you brought violence to the table, therefore you bear the responsibility for any mortal consequences).
So it’s not simply a matter of punishing someone for a crime they did not commit. It’s punishing someone for a homicide that resulted from their engaging in a violent criminal act.
Again, it may not be ethical, but I think that’s the argument for why it may be.
An interesting wrinkle on your fact pattern: what if Drake, in the course of the crime, experiences a pang of guilt and shoots himself in the head?
cl
says...Hey thanks for at least popping in over there at DD’s, but I don’t think anyone besides God can convince some of the folks over there that I’m anything other than what they’ve already decided I am in their minds. Anyways –
Tubbs’ decision did not result in Drake’s death – Drake’s decision resulted in Drake’s death. But it seems we’re both in agreement over the ethical concerns raised by the statute.
What if? I don’t see what you’re getting at there..
Spanish Inquisitor
says...I’m having a hard time bringing ethics to the law table. What does ethics have to do with this? Is it ethical for the state to execute anyone? If it is, then it’s ethical for the state to tie a murder rap on someone who could have foreseen the death of someone that died in the course of a felony that was put in motion by that someone, if tying that rap on someone might deter the next person from doing so.
Lifeguard
says...1) You wrote: “Tubbs’ decision did not result in Drake’s death – Drake’s decision resulted in Drake’s death.”
That may be true, and perhaps, the felony murder rule is unethical in that context. But are we talking about the ethics of the principle behind the felony murder rule, or the ethics of how it might be applied to the facts as you’ve described them in this case?
2) You wrote: “What if? I don’t see what you’re getting at there.”
Just wondering out loud whether that would count as felony murder under the law.
John Morales
says...Mental warfare apparently is harsh on the psyche.
You have my commiseration, I certainly wouldn’t wish to argue with myself while trying to sustain an unreasonable proposition.
cl
says...SI,
I agree on the difficulty of successfully resolving questions of ethics, but I disagree strongly here, as you compare apples to oranges, and your agrument depends on the complicity of someone. Presumably, death penalty recipients committed the crimes they were charged with, correct? Tubbs didn’t murder Drake, nor did Tubbs force Drake to take part in the robbery. Drake willingly chose to take part in the robbery, so how can we hold Tubbs accountable without encountering glaring contradictions in our legislation?
However, I have a distinction to offer: I’m more willing to accept the “felony murder rule” if an innocent bystander is killed. If me and my boys rob the local bank and Jane Doe catches lead, I’d say her death was on our hands.
Lifeguard,
Both. The latter was intended as an hypothetical example to question the former.
John Morales,
Not at all. It’s all the BS that comes along with it, and that BS is hard on patience.
I don’t.
John Morales
says...Wikipedia seems helpful regarding your inquiry:
cl
says...John,
Thanks for the link, as it helps establish some historical background, but it doesn’t address the question I asked. Note the distinction I made to SI in comment 9 that I agree with this principle of transferred intent when we’re discussing innocent bystanders, but such was not the context of the post. Emendations welcomed.
Spanish Inquisitor
says...You’re making a distinction between someone with culpability for the underlying felony and someone without. I think the law doesn’t distinguish when it comes to human life. Murder is murder, whether you like the victim, or not.
It may have an effect when the sentencing rolls around. I could see a judge imposing a harsher sentence on Tubbs if it was an innocent bystander, but it would have no effect on the conviction itself. The choice is guilty, or not guilty. There is no guilty but only if I like the victim.
But again, I don’t think there’s much concern for ethics, meaning how we treat the actor, underlying the policy considerations. This is a future result driven policy, with deterrence as the goal, so sometimes people have to be made an example of. The statute weighs the future deterrence against the present unfairness to the criminal, and finds in favor of the future potential victim.
Also, John Morales brings up a nice Latin concept, mens rea. You should look into that. Tubbs had the mens rea to do something proscribed by society, so he’s not innocent. Sure he didn’t pull the trigger, but should the death of Drake go unpunished? Someone has to pay, and certainly not the store owner (unless his actions were unjustified, e.g. he chased him down the block and shot him in the back.)
cl
says...I’ve not said or suggested otherwise. I’ve said Tubbs didn’t murder Drake, nor did Tubbs force Drake to take part in the robbery. Drake willingly chose to take part in the robbery. Given that fact, how is Tubbs responsible for murder?
What makes you think I said that? That’s twice now you’ve attributed this position to me. I think we might be talking past each other here.
Then in your opinion, this justifies convicting a man of a murder he did not commit? Why not come up with an equal or better deterrent that doesn’t involve prosecuting people for crimes they didn’t actually commit?
1) Why assume I haven’t? 2) Tubbs’ and Drake’s guilt was assumed in the OP; 3) I understand modern law see things a bit different than traditional law. In the former, with homicide as our example of actus reus, our definition is something like any conduct resulting in the death of another individual, and mens rea is established if the conduct resulting in the death was done intentionally or knowingly. In the latter, murder is the unlawful killing of a human being with malicious intent. The former was an emendation of the latter – I suspect – precisely because of the deterring powers we’ve discussed.
Think of the typical teenage hold-up gone awry. Two thugs packin’ heat stickin’ up the liquor store. They aren’t thinking they’re gonna pull the trigger, in fact, their guns might not even be loaded. Store clerk’s is, though, hence Drake’s unfortunate situation, and on what grounds can we establish mens rea for an act of homicide on Tubbs behalf?
Still, so far, it seems the only or best explanation offered is that the statute is justified regardless of ethics because of it’s power as a deterrent. I’m still not persuaded.
Dominic Saltarelli
says...What you are asking for requires a re-evaluation of your own assumptions regarding individual responsibility. Basically, you can only understand how it would be ethically feasible to prosecute Tubbs by being politically liberal.
If you’re a conservative who believes in things like individual liberty, then there is no ethical justification. None. But if your emotional make-up is that of a collectivist liberal (they’re calling themselves “social democrats” nowadays… again…), then the ethical nature of holding someone accountable in the scenario you described is quite clear. As described above, it serves as a deterrent to future cooperation between individuals who would similarly decide to rob a store, since the rights of the community come before the rights of the individual.
By placing the community first rather than individual rights, it then becomes perfectly legitimate to punish individuals that threaten or harm the community in any perceivable manner, even if they personally did not commit an actual crime (as in, harmed another or another’s property). You see it when people argue the ethical necessity of elevating “hate crimes”, criminalizing “hate speech”, and throwing people in jail for mere possession of child pornography or marijuana. When you put the concept of the community first, it is ethically justifiable to sacrifice any number of individuals in creating a more perfect or just society.
After all, to the liberal, the community is more important that the individual.
Dominic Saltarelli
says...And for clarity, being a libertarian myself, when it comes to Republican/Democrat distinctions, I just see left and further left, hence the bi-partisan platform of criminal behavior listed above.
Spanish Inquisitor
says...You invited me to comment and help you understand your quandary, and the hypothetical contained in it. I’m not taking a position on the ethics, just helping you come to your own conclusion (which, if you ask me, was already made before my first comment – you just like to diddle with people).
But to answer that last question, quoted above, yes, if the state of the law allows it, then it’s justified. If you don’t think the state of the law is ethical,you have the right to convince your lawmakers to change things. Until then, you’re stuck with it. The ethics are irrelevant.
I think Dominic explained things quite well, too. In a society, democratic or otherwise, the health of the community almost always overrides the health of the individual, subject to the Bill of Rights. Take that as you may. Scott Roeder and the 88 year old white supremacist in Washington might disagree, but then, they get to sit in jail an fume about it from now on, don’t they?.
Lifeguard
says...Cl,
Would it make a difference, in your example, if, when the store owner fires at Drake, he ends up killing an innocent bystander? Would it be ethical, under those circumstances, to prosecute Tubbs AND Drake for murder?
Why or why not?
I believe this is relevant because it isolates the issue of vicarious responsibility as opposed to getting tied up in a discussion as to whether the “victim” (in your example Drake) had it coming to him for participating in a robbery in the first place.
SI,
Methinks, and correct me if I’m wrong SI, that’s what you’re getting at when you talk about whether or not one likes the victim or not, am I right?
Man… I ALMOST miss law school right now…
Spanish Inquisitor
says...Yes. Exactly. He’s focusing on the victim when trying to determining whether it’s ethical to convicted of a vicarious murder.
Spanish Inquisitor
says...This is what I get hurriedly posting comments early in the morning before coffee.
Let’s try it again…
Yes. Exactly. He’s focusing on the victim when trying to determining whether it’s ethical to convict someone (Tubbs) of a vicarious murder.
John Morales
says...There is a freely downloadable and informative paper on the ethics and legality of the issue:
Mens Rea Quagmire: The Conscience or Consciousness of the Criminal Law?
Jeremy M. Miller
Chapman University – School of Law
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=920924
cl
says...Lifeguard,
Yes, because the innocent bystander didn’t make the choice to participate in the violent felony.
Thank you for explaining SI’s position better than SI.
SI,
All I was wondering was why and/or how you seemed to have heard something completely different than what I wrote. I never said a word about liking the victim. I misunderstood you because you expressed yourself poorly. I wasn’t “diddling” with you.
Lifeguard
says...Cl:
You wrote: “Yes, because the innocent bystander didn’t make the choice to participate in the violent felony.”
So then you agree with SI’s assessment that your position on vicarious responsibility depends on the victim? If so, I’m not entirely unsympathetic, but that IS SI’s point– that you only have a problem with the felony murder rule when it’s applied to someone who somehow “deserves” to die.
What if Drake shot and killed the shopkeeper? Do you think Tubbs could be ethically prosecuted for murder?
cl
says...SI framed it as a matter of “liking the victim” and I had no idea where that came from or what SI meant by those words. Then SI told me I just like to diddle with people when the problem was that I never said anything about “liking the victim” and simply misunderstood SI. Of course, many a time online, problems automatically entail the idea that the problem is with me, even when people admittedly type hurried comments. Maybe one day SI will give me the benefit of the doubt.
Back to the issue, I believe individuals should be punished for crimes they committed. Just as the errant shopkeeper didn’t murder the innocent bystander, Tubbs did not murder Drake. However, I also believe that two kids who roll a parked car into traffic are responsible for all the ensuing damage, and that’s what’s making this tough – for me.
My position on vicarious responsibility is certainly connected to the choices the victim makes, and that’s why I say it’s not murder if the shopkeeper misses.
I have a problem when people are charged with crimes they didn’t commit.
In reality, such a question could only be determined by the evidence. I could envision scenarios that would justify such a prosecution, and I could envision scenarios that would challenge such a prosecution.
Lifeguard
says...Cl:
1) You wrote: “Back to the issue, I believe individuals should be punished for crimes they committed. Just as the errant shopkeeper didn’t murder the innocent bystander, Tubbs did not murder Drake.”
Just for the sake of clarity, I prefer the phrase “acts they committed” to “crimes they committed.” It’s just clearer. Think about it, in a felony murder jurisdiction, Tubbs DID murder Drake because, even though he didn’t shoot Drake, “murder” in that jurisdiction encompasses homicides that take place during a felony. Words like “crime” and “murder” are legally defined terms, and what we’re really arguing about here is whether it’s ethical to create a category of crimes based on vicarious responsibility. I’m not trying to make an end run here, just to clarify the terms and what it is we’re talking about.
2) You wrote: “My position on vicarious responsibility is certainly connected to the choices the victim makes, and that’s why I say it’s not murder if the shopkeeper misses.”
I see what you mean here and can be sympathetic– to an extent. If the shopkeeper shoots Drake, then it’s self defense and a justifiable homicide under the circumstances. Given that Tubbs, as a conspirator with Drake, had ample opportunity to either talk Drake out of it, go to the cops, or warn the shopkeeper, that he knew that deadly force would be involved, and chose to participate anyway, then can we really say that Tubbs bears no responsibility for Drake’s murder?
In other words, if Tubbs would be vicariously responsible by virtue of his participation in a violent crime for the murder of a bystander shot by the shopkeeper, why is he not responsible for his friend’s death. His actions were the same!
It sounds to me like your position is motivated more by a distaste for dignifying Drake’s death by making him a “murder victim” as opposed to having anything to do with the idea of vicarious responsibility. In fact, I’m not sure how else to explain the distinction you’re making.
3) You wrote: “In reality, such a question could only be determined by the evidence. I could envision scenarios that would justify such a prosecution, and I could envision scenarios that would challenge such a prosecution.”
So could I. But, given the facts as presented and evidence to prove those facts, do you agree that Tubbs could at least be ethically arrested, charged, and tried for murder?
Lifeguard
says...I’m going to apologize in advance for making point (1) and then proceeding to use the exact terminology I had just decried as confusing. Unfortunately, I wrote that last comment under a little time pressure and got loose with my language.
cl
says...Lifeguard, SI –
After meditating on the distinctions I’m now more in your camp. Thank you both for helping me think this out, although really, it was my own meditation on the distinction between murder and homicide that flipped the switch. Lifeguard, your comments were particularly helpful. SI, yours were helpful to an extent, but you got all impatient and dipped too quickly into “cl is a douche” mode. I respect you both.
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