The Jury Talks Back


What Crimes These Were

Filed under: Uncategorized — JRM @ 12:12 am

In my post a couple of days ago, I asked about two situations and asked whether they should be crimes.

The first was a situation where a stoned lookout got his burglarizing buddy killed by not paying attention.

The second was when a rapist ineffectively attempted a rape and got shot for his troubles, despite an easy avenue of escape by the victim.

I got a lot of great, thoughtful comments.

In each case, the law differs in different jurisdictions. What the law should be is contested.

I’ll talk about California and other U.S. law, then talk about my own feelings. Let’s start with the first one:

What the law is: California’s law on this is a little messy. Felony-murder has been partially codified in Penal Code section 189. First degree felony murder is statutory; second degree felony murder is a judicial creation. (I don’t make the laws. I just enforce ’em.)

The basic rule of felony murder is that if you’re committing a crime, and something you or your accomplice does causes a death during that crime, you’re on the hook for murder. When you’re the getaway driver in the bank robbery, when the guard ends up dead, you’re on the hook.

California does not distinguish between whether the decedent is an innocent victim or an accomplice, but does distinguish based on how the death was caused. I believe that this would not be murder in California, as the victim was the shooter. (However, in an arson case where one of the arsonists lit himself on fire and burned death, his fellow arsonists went down for felony murder.)

State laws are widely different on this issue. In some states, dead accomplices are free all the time. In others (like Illinois, according to commenter nk) you’re good for deaths when the victim is the shooter and the accomplice is the decedent.

Side note: Commenter and law student aphrael left some comments that sent me down a path which (I hope) caused this analysis to be better than it otherwise would have. I am also away from my legal research tools, so if someone thinks I am wrong, let me know. I despise being wrong, but I especially hate continuing to be wrong.

My view: I think this is a very difficult area. The felony murder rule has been widely criticized generally, but I think that criticism is mostly unjustified. If you hang around with guys who like guns, you’re unlucky to go down for murder – but the guy who choked to death on his own blood was one hell of a lot unluckier.

I think that accomplice deaths of this sort should be manslaughter. If you help make dead people, you ought to be responsible, but accomplice lives should not receive the same protection as victim’s lives. I believe that my proposed compromise rule is not the law anywhere.

Case two is of the very sad potential rapist.

I tried to make the facts as clean as possible that the victim, Marie, had a full retreat available and was faced with lethal force.

What the law is: California imposes no duty to retreat, so if you’re in lethal danger, you can use lethal force, even if you can back off safely. Like almost all states, once a prima facie case of self-defense is made, the prosecution must prove it wasn’t self-defense beyond a reasonable doubt. Last I checked, Ohio and South Carolina were the only states that required the defendant to prove it was self-defense by a preponderance of the evidence.

If there’s no duty to retreat, Marie’s off the hook. If there is a duty to retreat, she’s guilty of a crime.

My view: I’m very comfortable with my conclusion that there should be no duty to retreat. Creating a duty to retreat places prosecutors in terrible positions: Do you really prosecute Marie? Really?

Once someone attacks you without provocation with lethal force, they’re on their own dime. If you require people to make showings that they could not retreat, that strikes me as an unnecessary further challenge to the victim. I don’t think we want to be in a position to second-guess a straight-up victim in this kind of situation.

This also serves as a mild further deterrent to the bad guys. That’s a good thing.

Tremendous comments once again; I may have a third (and probably last for a while) in this series on what criminal law should be, if I get it done before packing the stuff for the trip to the ‘rents.



  1. Here in Indiana they would have charged him with murder and then plea bargained it dowm to manslaughter due to the cost of a murder trial.

    10 years (5 executed) – 1 year for getting his GED. = four years served.

    A lot of people complained that Marie didn’t go for a killing shot, but with the pop gun that she had, the shot she made most likely was the best thing to do to stop the bastard. Think about if it was you that was shot. Not knowing if they were both gone. Ouuch.

    Comment by Hazy — 12/21/2008 @ 3:57 am

  2. What would Marie be facing if she had used a concealed, unregistered handgun to protect herself?

    Comment by kaf — 12/21/2008 @ 8:03 am

  3. Not in her own abode, or on her won land, or on her own fixed place of business … a Class 4 felony, one to three years but probationable, with forfeiture of the right to own firearms until expunged by gubernatorial pardon, under Illinois law. A Class B misdemeanor, up to 180 days in the County jail, but also probationable and no forfeiture of gun rights, under some municipal ordinances.

    Comment by nk — 12/21/2008 @ 8:28 am

  4. No crime at all in her own abode, or on her own land, or on her own fixed place of business.

    Comment by nk — 12/21/2008 @ 8:31 am

  5. JRM, I have enjoyed reading and learning from these scenarios you have been posting. For a non-lawyer, it is fascinating and informative.

    I would like to ask what may be a naive question but, whatever… I am curious about Ohio and So. Carolina still requiring defendants to prove it was self-defense: have the other states changed to there being no duty to retreat based specifically on rape cases and advocacy groups strong fight against rape victims (or potential victims as in Marie’s case) having been historically stereotyped as the provoker in rape? It makes me wonder if the push in the last 30 years against sexism/gender discrimination played a part in influencing this, or has it always been this way in Cali? And what do you think the reason is for Ohio and So. Carolina being so out of step with what appears to be a general consensus amongst the other states?

    Comment by Dana — 12/21/2008 @ 9:52 am

  6. It seems to this observer that the “duty to retreat” requirements have changed almost in lock-step with the change to “shall issue” CCW’s.
    Since states have, to a large degree, determined that self-defense is a right, and have allowed people to carry concealed in order to facilitate that right, it makes no sense to then require them to retreat from a threat (which can introduce more dangers into a situation) when they can stand their ground and deal with the situation presented.
    Even here in CA, which does not have “shall issue” and CCW’s are difficult to come by, we have usually recognized an individuals right to defend themselves, even with a weapon that might technically violate the laws against concealed carry. It is not unheard of that an individual who successfully defends them-self, or others, will not be charged with a CCW offense, but will have the offense bargained down to a minor misdemeanor, or even an infraction.
    The old saw cuts true: Better to be judged by twelve, than carried by six!

    Comment by Another Drew — 12/21/2008 @ 11:44 am

  7. Dana:

    The common law from Britain, which we adapted, was that a homicide was presumed to be criminal, and the accused needed to prove that it wasn’t.

    Forty-eight of the fifty states have changed that rule over the years; California (and many others) did a long time ago.

    Many of the self-defense cases that are prosecuted involve bad citizens on both sides, though that is not always the case.

    I once used non-lethal force to overcome lethal force; it was sufficient. I nonetheless would not fault someone who placed no weight whatsoever on the well-being of the attacker, and erred on the side of more vigorous defense.


    Comment by JRM — 12/21/2008 @ 12:57 pm

  8. In a “duty to retreat state”, Tony would be off the hook if he pulled a gun after marie pulled hers and shot her dead. The assumption would be that Marie pulled the gun just to make Tony back off, but if she already discharged one into his nads, then how could he be said to have a legal obligation not to protect himself from more bullet wounds? He has no possibility of retreat.

    That’s not considering what any jury of normal people would do.

    Comment by jcurtis — 12/21/2008 @ 7:10 pm

  9. As long as Tony continued to threaten Marie, she has the right to defend herself. The instant Tony turns to flee, she can no longer claim her actions are in self-defense as the threat has been removed. As far as Marie turning to flee, she exposes herself to harm at the hands of the person who initiated the confrontation. Marie should not be required to wager her life on Tony’s ability to throw his knife (he may be an expert).

    Comment by navyvet — 12/21/2008 @ 9:32 pm

  10. Even in Louisiana the law allows you to defend yourself when faced with the belief that your life or bpdy are in jepordary. That is why I have a CCW permit.

    Comment by RPKinmd — 12/22/2008 @ 6:38 am

  11. […] also gives his answers to his second set of hypotheticals, having to do with felony murder and […]

    Pingback by Patterico’s Pontifications » JRM Poses Another Hypothetical — 7/21/2009 @ 10:57 pm

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