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Of all the reforms proposed by the Model Penal Code, perhaps none has been less influential than the Model Code's recommendation on the perennial problem of felony-murder. As found in our nineteenth-century criminal codes, the rule has several variations. The basic scheme is to hold the accused liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and non-negligently. According to one popular rationalization, the felon's intent in committing the felony attaches, fictitiously, to the killing and somehow becomes transformed into the malice aforethought required for murder.

The drafters of the Model Penal Code attempted to crack this fictitious connection between the culpability of committing an ordinary felony and the culpability required for the most egregious felony of murder. The Code stands for the principle that the minimal culpability required for murder is greater even than reckless killing. The killing must be not only reckless, but, in addition, committed under circumstances "manifesting extreme indifference to the value of human life." The Code recognizes that the prosecution might prove this required degree of recklessness by showing that the killing occurred in the course of a felony especially dangerous to human life. There is no doubt that many killings committed in the course of robbery, rape, arson, or burglary are reckless, and indeed they might be committed under circumstances manifesting extreme indifference to the value of human life. But that is surely not the case with all killings that occur in the course of these felonies. Suppose that an arsonist carefully checks the premises for signs of human life before setting fire, yet as the blaze erupts, an independently motivated burglar breaks into the house and perishes. One would be hard-pressed to regard the arsonist as having acted recklessly toward the unexpected burglar. Or suppose that an unarmed burglar encounters an occupant with a weak heart; though the burglar attempts to calm the occupant, the latter dies of shock. It is obvious that in some cases a felon might be reckless in taking the risk of homicide; but in other cases he might be free from significant fault in bringing on the death. The Model Penal Code suggests that killing in the course of a dangerous felony should be merely presumptive of the culpability required for homicide. The point is that the presumption does not always hold, and when it does not, there is no reason to regard a killing in the course of a felony as different from other killings.


Criminal Law | Criminal Procedure | Law