Law professor Guyora Binder's recent law review article on felony-murder is guilty of running down a straw man argument. Professor Binder argues that the offense of felony-murder, which is the law in 45 states and allows for a murder conviction by someone who did not intend to kill but was involved in felony that resulted in a death is legitimate in the vast majority of cases since the death does amount to, at least, negligent homicide in an aggravating circumstance. The problematic cases, Binder argues, are those in which the causation requirement is too weak because the death was not foreseeable.
Binder refrains from seriously addressing the capital punishment implications of a mere participant in a felony who had no direct role in causing the death, or the grading of the murder involved, which is a great shame as it is the most central issue in the matter. A mere participant in a felony that gives rise to death is eligible for the death penalty, and is also eligible for life imprisonment without parole. Indeed, felony-murder was invented historically precisely to separate a subclass of murders for which the death penalty would be available from a subclass of murders for which it would not be available, such as impulsive murders not involving pre-meditation or another felony.
While few criminal justice scholars would seriously doubt that it is not unreasonable for involvement in a dangerous felony that causes a death (at least foreseeably) to be punished more severely than involvement in a dangerous felony that does not cause a death in some manner, most would also agree that, as a class, the individuals who are mere participants in group felonies where someone else causes a death, include the largest share of individuals who are the least culpable murder convicts who are eligible for the death penalty or life without parole sentences in current law. Moreover, since no sentence less than life without possibility of parole is often allowed upon a conviction for this offense and the death penalty is often a permitted sanction for it, these are cases where the lack of a potential for judicial mercy in sentencing is highly troubling. For example, it is no coicidence that a large share of all juveniles sentenced to life in prison without parole in Colorado were convicted of being a participant but not actual killer in a felony-murder case where judicial discretion to classify the case as a juvenile one was also absent.
While lack of foreseeability of a death is a problem in some cases, at least as important is the grading of felony-murder as a form of capital murder rather than as mere ordinary non-capital murder for which considerable sentencing discretion to fit the facts and circumstances of the case and the defendant's involvement in its are involved.
Binder's apology for felony-murder statutes make sense in a world where there is a foreseeability requirement and felony-murder is the same grade offense as ordinary murder and conspiracy to commit capital murder, but below the grade of capital murder. But, because of the historical origins of this crime as a grading device that inadvertantly expanded as well as narrowed the scope of the death penalty, this is rarely the case, and it is a pity that Binder's analysis relegates the key issue of death penalty eligibility to a mere footnote and doesn't squarely address life without possibility of parole sentencing without judicial discretion at all.
Binder also fails to address in any meaningful way the extremely restrictive standards for renunciation of felony-murder culpability in most jurisdictions that makes it almost impossible for an uncounseled defendant acting in the heat of the moment to qualify even when genuine renunciation and efforts to undo the crime set in motion are present.