Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation

Abstract

The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the adoption of the default rules and the retention of felony murder liability are inconsistent at the level of principle. This article explores this tension by examining the applicability of culpability default rules to felony murder provisions in the jurisdictions with both. It concludes that in many of these jurisdictions, default rules should be understood to condition felony murder on negligence or recklessness.