Murder conjures up bad, bad acts. But felony murder – sounds even worse, doesn’t it? Well, words can be deceiving, and this is a case where they sound a lot worse than they are in most cases.
Killing another human being is certainly one of the worst things a person can do. Homicide – the legal catchall for taking the life of another person – is generally divided into several different crimes. In most cases, the classification (and penalty) associated with a particular homicide offense is a function of the state of mind of the defendant. This involves questions such as was the defendant merely negligent, did he/she exhibit an “extreme indifference to human life,” was the act reckless, did the defendant actually intend to cause the death, was it premeditated, was the killing committed in the heat of passion, and so on.
In Arizona, based upon the alleged state of mind, the charge could vary, and a defendant could find that he/she is facing a charge of negligent homicide, manslaughter, second degree murder or first degree murder. Murder includes, for example, intentionally or knowingly taking a life, and premeditated murder. And it also includes what is commonly known as “felony murder.”
What is Felony Murder?
The felony murder rule is contained in A.R.S. 13-1105A2. That section says that you are guilty of first degree murder if you commit or intend to commit any one of a laundry list of crimes, and if, during the commission (or attempted commission) of the offense, or in immediate flight from the crime, you or another person causes the death of any person. This means that you needn’t have intended to take another person’s life, or even acted negligent! In fact, you needn’t have participated in the act of homicide at all, other than to commit (or attempt to commit) one of many crimes. Those crimes, by the way, include burglary, marijuana offenses, narcotics offenses, “unlawful flight,” and other offenses, some of which are . . . well . . . not all that serious, at least compared with murder. To make matters worse, felony murder in Arizona is a death penalty eligible offense.
The felony murder rule has its roots back in twelfth century common law, and reached its present form in the eighteenth century. The argument in favor of the rule is that it is designed to deter inherently dangerous crimes. Many, however, argue that the rule is simply unjust. We would agree, and add that the injustice is more apparent in Arizona than in some other places.
In any event, the rule has been abolished or otherwise eliminated in a number of jurisdictions, including England, Wales, and Ireland. In Canada, it was declared unconstitutional. Here, however, over 40 states still have one or another version of the rule on their books.
What Makes the Rule So Unfair in Arizona?
We’ll pass over without further comment the potential injustice of convicting a person for murder when they took no part in the killing. In Arizona, however, the situation is even worse. We say this because of two aspects of Arizona law:
- The list of offenses, the commission of which could trigger the application of the rule is simply irrational. It includes not only crimes such as rape, sexual abuse of a child, terrorism, and kidnapping, it also includes a host of less serious offenses, including drug crimes, attempting to flee from a pursuing law enforcement vehicle, and escape.
- The death penalty can be imposed for felony murder in Arizona, provided there are aggravating factors. One such factor is a prior conviction for a “serious offense.” As provided in A.R.S. 13-751F2, the underlying offense that led to the felony murder conviction can itself be an aggravating factor.
What you end up with is a rule that makes a slight bit of sense in very few cases, and almost no sense in most others. It is inconsistent with criminal standards, offers punishment without principle, and should be discarded.
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004