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Article Excerpt
I. INTRODUCTION
In the summer of 2006, the Illinois Supreme Court affirmed two first-degree murder convictions in People v. Hudson (1) and People v. Klebanowski. (2) Both cases involved eerily similar fact patterns where an off-duty police officer, unbeknownst to the perpetrators, happened to be a target of an armed robbery. (3) In both cases, the officer fatally shot one of the felons, and the defendant was convicted of first-degree murder for the death of his accomplice. (4) The Illinois Supreme Court upheld both convictions under the felony murder rule and reaffirmed its allegiance to the proximate cause theory of felony murder. (5)
The proximate cause theory holds felons accountable for any foreseeable deaths that occur during the commission or attempted commission of a felony. (6) This includes deaths of innocent bystanders caused by third parties, and even, as in Hudson and Klebanowski, deaths of co-felons at the hands of police officers. (7) Illinois courts have justified using proximate cause, a concept borrowed from tort law, on the grounds that the foreseeability requirement would temper the innate harshness of the felony murder rule. (8) However, in practice, instead of placing a restriction on the felony murder rule, it has been applied expansively, extending liability even to those defendants whose actions were attenuated from their co-felon's death. This Comment explores why the proximate cause theory has failed in its purported purpose to limit the felony murder rule and suggests that research in cognitive psychology can help us understand the rule's expansive application.
Psychologists have long been aware of universal biases, such as the hindsight bias, the phenomenon that people overestimate the predictability of past events, (9) and the outcome bias, the tendency to judge the quality of a decision based on its consequences. (10) Research suggests that these two biases, working in tandem, considerably undermine people's ability to judge the foreseeability of events in hindsight accurately (11)--a task required of juries and judges in determining the guilt of felony murder defendants via the proximate cause theory. (12) Furthermore, studies in causal attribution have shown that people conflate blameworthy behavior with causation. (13) For example, research shows that people assessing causation for a traffic accident placed more blame on a driver whose motive for speeding was to hide a vial of cocaine than on a driver rushing to hide an anniversary present. (14) Furthermore, another study suggests that blame is attributed in proportion to the severity of the result--thus the more severe the result, the more blame that will be attributed to the actor. (15)
The implications of this research for the proximate cause theory of the felony murder rule are twofold. First, by virtue of these psychological phenomena, both juries and judges tend to find that a resulting death was foreseeable in felony murder cases, even where there were superseding intervening causes breaking the causal connection between the defendant's conduct and the resulting death. Furthermore, due to the inherently blameworthy behavior entailed in committing a felony, causal attributions are exacerbated leading to unwarranted causal associations between the defendant's acts and the resulting death. As such, the research suggests that in individual cases, the playing field is heavily tilted against the felony murder defendant.
Second, and on a broader level, the expansion of proximate cause theory jurisprudence since its inception is a direct result of the outcomes of individual felony murder cases. Because juries are likely to find a resulting death foreseeable and appellate judges are generally deferential to jury determinations, courts have upheld felony murder convictions, gradually expanding the application of the proximate cause theory of the felony murder rule. In other words, the effects of the hindsight bias, outcome bias, and causal attribution on individual cases has translated into a general expansion of the Illinois Supreme Court's jurisprudence with respect to its felony murder rule.
This Comment is organized into three parts. Part II provides general background information on the felony murder rule and explains how the rule developed and is applied in Illinois. Hudson and Klebanowski are both discussed in detail as illustrations of the anomalous consequences resulting from the modern application of the proximate cause theory of the felony murder rule. After providing a synopsis of the relevant research on the hindsight bias, the outcome bias, and causal attribution literature, Part III analyzes and outlines the implications of these studies. First, I discuss the implications of the biases on individual cases and show how the research suggests that the felony murder defendant is placed at an unfair disadvantage at the hands of jurors and judges alike. Then, I explore the broader ramification of the research, specifically discussing how causal attribution research helps to explain why the Illinois legislature adopted such broad language in its felony murder statute, as well as why the Illinois Supreme Court's jurisprudence has been characterized by constant expansion of the rule. Finally, Part IV consists of general conclusions as well as a research proposal that would test my assertions regarding cognitive psychology's implications for the proximate cause theory of the felony murder rule.
II. THE FELONY MURDER RULE
The felony murder rule has long been the subject of intense criticism by the legal community. (16) In its traditional form, the felony murder rule provides that the killing of another human being during the course of a felony constitutes murder. (17) Whether the death was intentional or accidental is irrelevant--the mens rea required for murder is automatically supplied by the intent to commit the underlying felony. (18) At its broadest, "[t]he rule imposes strict homicidal liability on felons even for deaths caused by third parties such as victims, police, or bystanders." (19) As a result, the felony murder rule runs afoul of a fundamental principle of our criminal justice system--the requirement that a guilty mental state specific to the crime committed be established to attach criminal liability. (20) This dispensing with the mens rea requirement has led scholars and judges to call it "abhorrent," (21) "anachronistic," (22) "barbaric," (23) "injudicious and unprincipled," (24) "an unsightly wart on the skin of the criminal law," (25) "parasitic," (26) and a "modern monstrosity" that "erodes the relationship between criminal liability and moral culpability." (27)
Modern courts have justified the existence of the felony murder rule primarily based on principles of deterrence. (28) There are two different "strains" of the deterrence rationale. (29) The more commonly held of the two is that the threat of a murder conviction will induce felons to take greater care during the commission of a felony, thus minimizing the chance of negligent killings. (30) The second view posits that the risk of a murder conviction for any killing during the commission of a felony will dissuade potential felons from committing the felony in the first place. (31) However, both of these deterrence rationales have been challenged by scholars. (32)
With regard to accidental killings, scholars question how it is possible to deter an unintended act. Likewise, they pose the identical question where a third party, such as a police officer, commits the fatal act. Because the felon has no control over a third party's acts, scholars dispute how the felony murder rule can deter this kind of killing. Another problem with the deterrence rationales are that they require that those targeted by the rule know the law--laypeople are likely unaware of the felony murder role rendering the deterrence justification moot. Finally, commentators note that there is no proof that the felony murder rule actually serves its deterrent purpose. (33) The lack of data supporting the deterrence justification has prompted one commentator to note:
Assertions that the doctrine exists to prevent killings that occur in the course of felonies and that it actually achieves its goal are rooted in blind faith or self-delusion.... If the rule is to stand upon deterrent premises, it is incumbent upon supporters to do more than speculate. They should have to justify the suspension of our normal insistence upon proof of blameworthiness. Without a credible foundation in established facts, deterrence is not a real justification, but is instead a poor excuse for our infidelity. (34)
Some courts have also suggested a retributive basis for justifying the felony murder role. (35) Under this rationale, proponents argue that "a crime which ends in death should be punished more severely than the same crime that does not end in death." (36) This justification for the felony murder rule has its roots in seventeenth- and eighteenth-century England where judges focused more heavily on the result of a crime rather than the intent of the perpetrator. (37) Consequently, "a convict ... bore responsibility for his felony and for any harmful result arising from the crime regardless of his specific intentions." (38) However, application of this theory in the modern American criminal justice system runs afoul of the established notion of "just desserts." (39) By considering felony murder a first-degree murder offense, punishment for an accidental or third-party killing is placed on the same level as premeditated murder, violating the principle of proportionality between crime and punishment. (40) A felony murder where the death resulted from negligence or recklessness, under the principle of proportionality, should not be punished as severely as a premeditated killing where the culprit had homicidal intent.
Despite such sustained criticism, the felony murder rule has persevered in almost all jurisdictions; only three states have completely abolished it. (41) Professor James Tomkovicz convincingly analyzes the reasons why the felony murder rule has endured. (42) He suggests that one explanation for its endurance has been its limiting modifications in most jurisdictions. (43) Only a small minority of states still retain the broadest application of the rule while the rest have, in one way or another, curtailed the reach of the felony murder rule. (44) Most states have a restricted form of the felony murder rule that applies only to felons acting in furtherance of one of a certain, limited, group of felonies such as armed robbery, sexual assault, and assault with a deadly weapon. (45) Felonies outside of that list, such as selling liquor to a minor, do not lead to a felony murder conviction, even if multiple deaths resulted from a drunk-driving related accident. Others jurisdictions, instead of providing a specific list, generally limit the felony murder rule to felonies that are "inherently dangerous to human life." (46) Another limitation commonly subscribed to is the "agency theory," (47) which limits the felony murder rule to killings caused by the felon or an accomplice, thereby excluding deaths caused by a third party's intervention. (48) An alternate approach, the proximate cause theory of felony murder, imposes liability on felons for killings committed by someone other than the felon or co-felon, but only if those deaths are proximately resulting from the defendant's unlawful actions. (49) While these "modern incarnations" of the felony murder rule have diminished the extent of the rule's injustice by eliminating numerous egregious felony murder cases, these limitations have also contributed to the felony murder rule's longevity: "By keeping it on a leash, legislatures and courts have prevented it from behaving in ways that could attract public attention and antipathy." (50)
The Illinois legislature has adopted a combination of the abovementioned limiting doctrines of felony murder. The statute restricts the rule's application to "forcible felonies." Under [section] 2-8 of the Illinois Code,
"Forcible felony" means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual. (51)
Therefore, Illinois includes a specific list of enumerated forcible felonies, but also provides for a broader, generalized definition of forcible felony. To determine whether a felony qualifies as "forcible" when applied to the felony murder rule, the Illinois Supreme court has stated that, "the test ... is not whether the felony is normally classified as non-violent, but is whether, under the facts of a particular case, it is contemplated that violence might be necessary to enable the conspirators to carry out their common purpose." (52)
Beyond these general limitations, Illinois also subscribes to the proximate cause theory of the...
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