Louisiana Law Review


Joseph C. Mauro


Felony murder, Defendants, Criminal intent, Lex talionis, Felonies, Corrections (Criminal justice administration), Federal correctional services, Provincial correctional services, Joshua Knobe


Felony murder authorizes maximum criminal punishment, the kind typically reserved for the most ruthless and calculating killers, for defendants who did not even intend to kill. Many retributivist scholars therefore criticize felony murder for abandoning the traditional notion that intent determines culpability and the appropriate degree of punishment. Despite widespread agreement with this criticism, however, felony murder persists in most jurisdictions. Joshua Knobe's empirical research turns this problem on its head by suggesting that intent is not just a mental state. Numerous experiments have shown, in fact, that people are more likely to call an action intentional, regardless of what the actor is thinking, when it involves morally bad conduct and outcomes. Knobe thus argues that intent refers not only to a mental state but also to the morality (good or bad) of conduct and the outcomes it causes. Under Knobe's theory, some instances of felony murder are actually intentional, even if the defendant did not subjectively intend to kill or recklessly endanger. That is, when the defendant's conduct (a dangerous felony), mental state (willingness to risk death) and the outcome (death) are sufficiently bad, the action, as a whole, is intentional. Restricting felony murder to such "intentional" killings, I propose, would not only re-couple punishment to intent, satisfying retributive theory, but also eliminate the most troublesome applications of the rule.

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