Guyana Binder, "Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation" | Tim Wu | February 08, 2018


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Guyana Binder, "Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation"

Guyana Binder, "Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation"
The Model Penal Code had inspired penal law reform in over thirty states by the early 1980's, according to its principal drafter, Herbert Wechsler.1 One of the Model Penal Code's most influential features is said to be the scheme of culpable mental states developed in its general part.2 This scheme distinguishes and defines mental states and associates these mental states with particular conduct, circumstance, and result elements of offenses and defenses. This scheme is designed to clarify the mental element of each offense and defense and to create options intermediate between purpose and strict liability, while avoiding the confusion created by the traditional terminology of general, specific, transferred and presumed intent. One important feature of the Code's general culpability scheme is a series of default rules, designed to assign a culpable mental state to every conduct, circumstance and result element of each offense and defense. As we shall see, these default rules have been enacted in whole or in part in half of the American states.
By contrast, one of the Code's least influential features is said to be its near abolition of the traditional felony murder rule in its special part. As part of the Code's general disfavoring of strict liability and criminal negligence, the Code conditioned murder liability for killing in the course of crime on recklessness and extreme indifference to human life, thereby assimilating it into other forms of unintentional murder. In so doing, the Code's drafters rejected what they understood to be the felony murder rule's imposition of “a form of strict liability for . . . homicide.”3 It is commonly said that almost every state in the country has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform.4
This article is about the relationship between these two features of the Model Penal Code--that is, between the Code's culpability scheme and its rejection of the felony murder rule. It is also about the apparently inconsistent legislative response to these two features of the Code. The article's premise is that the Model Penal Code's treatment of the felony murder issue flows from its general culpability scheme. That scheme demands culpability for serious crimes like murder. Hence to adopt the general culpability scheme while continuing to embrace the felony murder rule, as traditionally understood, is inconsistent at the level of principle. 
But it is not entirely clear whether legislatures have adopted this inconsistent position, because the default rules may alter the meaning of previously enacted felony murder provisions. Thus, in adopting the Model Penal Code's general culpability scheme while substantially retaining their previous statutory definitions of felony murder, some legislatures have created a difficult problem of statutory interpretation. The problem arises from the fact that while felony murder has often been understood as a strict liability offense, statutory definitions of felony murder have traditionally been silent as to its mental element. In retaining their traditionally laconic definitions  *402 of felony murder, legislatures may have thought they were retaining a strict liability offense. Yet in adopting default culpability rules, legislatures may have unwittingly--and unwillingly--reformed the law of felony murder by introducing mental elements.

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February 08, 2018

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Tim Wu


Columbia Law School

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