Defending Vicarious Felony Murder

Abstract

Felony murder is a much-maligned and much-misunderstood doctrine. At its broadest, it is indefensible. Guyora Binder and David Crump have compellingly shown that this broad felony murder never really existed and that the limitations that jurisdictions have placed on the doctrine largely make it normatively acceptable.

Vicarious felony murder, however, has not been so defended. This article provides such a defense, drawing from philosophy and psychology work on joint shared intention, action and omission, and imputation of culpability. It concludes that, to the extent that underlying felony murder is normatively appropriate and methods of proof are reliable, vicarious felony murder is also eminently defensible because it reliably functions to discern culpability and impose condign punishment.

Keywords: felony murder, vicarious liability, criminal law, homicide