Volume 152, No. 157
11, August, 2006
It's a Bird, it's a Plane, it's
Felony Murder
Last month the Illinois Supreme Court decided a new felony murder
case, People v Lavelle Hudson, No. 100033 (July 5). Four justices found
that the non-Illinois Pattern Jury Instruction on causation was
''adequate,'' but offered in dictum an alternative instruction. Two
justices found that the non-IPI instruction was erroneous, but found
the error harmless. One justice dissented.
Ready for my analysis?
Forget it. To paraphrase the late Justice Harry Blackmun, ''From this
day forward, I no longer shall tinker with the machinery of felony
murder.'' See Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun,
J., dissenting from denial of certiorari). Analyzing felony murder with traditional legal tools only
perpetuates the myth that it is a real legal doctrine.
OK, so what's wrong with felony murder?
The Illinois Criminal Code provides that a person is guilty of first-degree murder if in performing
the acts that cause the death ''he is attempting or committing a forcible felony other than second
degree murder.'' 720 ILCS 5/9-1(a) (3). Illinois courts have long held that under felony murder, ''It
is immaterial whether the killing in such a case is intentional or accidental, or is committed by a
confederate without the connivance of the defendant or even by a third person trying to prevent
the commission of the felony.'' People v. Hudson, slip op. at 6, quoting 720 ILCS Ann. 5/9-1,
Committee Comments-1961, at 15 (Smith-Hurd 2002), citing People v. Payne, 359 Ill. 246 (1935)
(emphasis added).
See that word ''accidental''? You mean you can be guilty of first-degree murder based on an
accidental killing? Sure. In the words of the non-IPI instruction found adequate in Hudson, a forcible
felon is guilty of first-degree murder as long as the accidental killing was the result of a chain of
events set in motion by the felon. The only mental state needed is intent to commit the felony. No
mental state is needed vis a vis the killing. Thus, what we euphemistically call ''felony murder'' is in
reality ''absolute liability murder based on the commission of a forcible felony.''
You mean you can be guilty of first-degree murder based on absolute liability? You bet. Again, the
only mental state required is intent to commit a forcible felony. The State has no burden of proving
that defendant possessed any mental state vis a vis the death that occurred. In fact, Illinois courts
have held — presumably with a straight face — that even a Class 3 felony such as involuntary
manslaughter requires proof of a more culpable mental state than felony murder. People v. Schickel,
347 Ill.App.3d 889, 895 (1st Dist. 2004); People v. Williams, 315 Ill.App.3d 22, 32-33 (1st Dist.
2000). No, I am not making this up. If you do not believe me, read the cases yourself. If the Mad
Hatter wrote this stuff it would be funny; but, unfortunately, this is the state of Illinois criminal law
in the 21st century.
Consider this example. Jones breaks into a house at night and is guilty of residential burglary. When
he gets inside, he lights a match in order to see in the dark. He then accidentally drops the match
and the house burns down.
Is Jones guilty of arson? Of course not. Arson requires that a person ''knowingly'' damage real
property. 720 ILCS 5/20-1 (a). Dropping the match was an accident. You need a concurrence of bad
mental state and bad voluntary act to be guilty of a crime. That fact that he is a burglar does not
automatically also make him guilty of arson.
Now let's add a fact. What if the accidental fire caused the death of the owner sleeping in her
bedroom? Jones was committing the ''forcible felony'' of residential burglary. 720 ILCS 5/2-8. Jones
set in motion the chain of events that caused the accidental death of the owner. Looks like felony
murder to me.
On the same facts, while an Illinois court would sanctimoniously announce that Jones could never
be guilty of the Class 2 felony of arson, it would have no trouble finding him guilty of first-degree
murder based on the felony murder doctrine.
So how did we get into this felony murder mess?
It is generally conceded that the so-called ''felony murder rule'' is based on nothing more than a
mistake made by English legal commentators several centuries ago. Some point to Lord Coke's
treatise in 1644 as the possible source of this faux ''rule.'' While it is true that his treatise
characterized a killing that occurred during the commission of an unlawful act as ''felonious,'' the
cases he cited provided no direct support for anything like a ''felony murder rule.''
Instead, when Coke described an unintended killing during an unlawful act as ''felonious,'' what he
probably intended to say was that such a killing would be punished as manslaughter, rather than
murder. Nevertheless, relying on this type of error, English judges created the ''felony murder rule''
through common law. (For background on the strange history of the felony murder doctrine, see
James J. Tomkovicz, The Endurance of the Felony Murder Rule, 51 Washington and Lee Law Review
1429 (1994) and Nelson E. Roth and Scott E. Sundby, The Felony Murder Rule: A Doctrine at
Constitutional Crossroads, 70 Cornell Law Review 446 (1985).)
England, to its credit, eventually admitted this so-called ''rule'' was nonsense. Parliament abolished
the felony murder doctrine in 1957. See Homicide Act of 1957, 5 & 6 Eliz. 2. Nevertheless, it
continues to thrive in America.
So what can I tell you about the new Hudson case? Let me ask you this. When you were a kid, did
you ever read ''Metropolis Mailbag'' in the Superman comic books? A typical question would be
something like ''Dear Editor: In the May 1959 issue you ran a story that showed Superman carrying
a plane that had engine failure. I think I saw a drop of sweat on his face on page 16. Does this mean
there are limits to his strength, other than those caused by exposure to kryptonite? Just Wondering,
J.L., Keokuk, Iowa.''
The editors would then proceed to give elaborate answers trying to explain the drop of sweat.
Sometimes both the question and answer were decidedly tongue-in-cheek. But sometimes the
question and answer took on the surreal quality of trying to create an alternative universe out of
pure fiction.
The Illinois Supreme Court's felony murder decisions have this same quality. They try to create a
plausible world out of the implausible. They attempt to justify a theory of murder that has a mental
state less culpable than that of involuntary manslaughter, a Class 3 felony. Like Gertrude Stein's
Oakland, there is no ''there'' there. The Supreme Court refuses to confront the fact that felony
murder allows a court to convict a person of first-degree murder without any showing of fault, i.e.,
mens rea, with respect to the death of the victim. It refuses to discuss the serious problem of a
murder theory predicated on absolute liability.
Hudson has three separate opinions that go on and on about ''cause in fact'' and ''legal cause'' and
''proximate cause'' and ''foreseeability'' without once confronting the real problem with felony
murder: you are convicting a person of murder based on absolute liability. See Sanford H. Kadish
and Stephen J. Schulhofer, Criminal Law and Its Processes (7th ed. 2001), p. 451. It is ironic that this
same court has regularly engaged in pages and pages of judicial hand wringing while trying to
decide if some nickel-and-dime offense can be committed with no mental state. See, e.g., People v.
O'Brien, 197 Ill.2d 88 (2001) (collecting cases). Yet when faced with ''absolute liability murder
based on commission of a forcible felony,'' the court buries its head in the sand.
And, sadly, the court even fails to understand why causation in felony murder is so problematic.
The answer? It goes back to felony murder being an absolute liability offense that requires no mens
rea regarding the death. Because this idea violates our most basic ideas of justice, the court
unconsciously tries to make ''foreseeability'' do double duty both for mens rea and causation. The
result? Conflating mens rea and causation creates the chaos of decisions such as Hudson.
Am I trying to exculpate all forcible felons who cause deaths? Of course not. If the killings were
committed intentionally or knowingly, the defendants can be convicted under traditional Illinois
theories of first-degree murder. 720 ILCS 5/9-1 (a) (1) and (a) (2). Also, the Model Penal Code
proposed an alternative to felony murder many years ago. First, it abolished felony murder. But it
then created a new theory of murder defined as a killing that is the result of an act ''committed
recklessly under circumstances manifesting extreme indifference to the value of human life.'' The
Code goes on to provide that, if the defendant is in the process of committing any one of a list of
serious felonies when the death occurred, this fact creates a rebuttable presumption that he acted
with the indifference and recklessness needed for a murder conviction under the new theory.
American Law Institute Model Penal Code Official Draft, 1962, Section 210.2 (1) (b).
The Model Penal Code thus allows for the possibility that deaths during forcible felonies may
indeed be murders. However, it demands that the murder conviction be predicated on a mens rea
that has an actual relation to the death.
You want to know more about the fine points of felony murder causation discussed by the Illinois
Supreme Court in People v. Hudson? Sorry, but you'll have to find out for yourself. From now on,
when I see an Illinois decision that discusses felony murder minutiae — while stubbornly refusing
even to acknowledge the injustice of a theory that turns first-degree murder into an absolute
liability offense — the opinion goes straight into the ol' Metropolis Mailbag.