In a recent opinion, the Supreme Judicial Court of Massachusetts relied in part on University at Buffalo School of Law professor Guyora Binder’s 2004 article The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, to significantly narrow the scope of the felony murder rule. The case, Commonwealth v. Brown, 81 N.E.3d 1173 (Mass. 2017), concerned the felony murder conviction of a man who supplied a hooded sweatshirt and gun to a friend that he knew intended to commit an armed robbery. Two men were killed in the in the course of that attempted armed robbery.
Under the felony murder rule, if a person dies during the commission of certain dangerous felonies, it is considered a murder regardless of intent. The Massachusetts implementation of the rule removed the jury’s discretion to decide whether such a death was first-degree or second-degree murder.
A unanimous court agreed that, under this version of the rule, the jury verdict was proper, but also that the result was unjust. Consequently, the Court, in the interests of justice, reduced the first-degree murder conviction to second-degree murder and remanded the case to a lower court for sentencing.
A majority of the Court, however, went further. In a concurring opinion authored by Chief Justice Gants, four justices narrowed the scope of the felony murder rule. Relying in part on Professor Binder’s “exhaustive analysis of the origins of the American felony-murder rules,” the Court required that in all future murder trials, all elements of murder must be found before applying the felony murder rule to increase the degree of the crime. In doing so, the Court abolished the theory of constructive malice, requiring that the jury find actual malice under the murder statute.
The Court used Professor Binder’s history of the rule to track the rule’s development in Massachusetts law. The rule began as a “felony aggravator statute” that merely increased the degree of murder whether or not it was premeditated or performed with extreme atrocity or cruelty. Prior to the statute’s adoption, there was scholarly writing on such a rule, but no English or American court had ever convicted a defendant of murder in absence of a finding of all of the elements of murder.
The Court found that the first case in Massachusetts imposing such liability was Commonwealth v. Campbell, 89 Mass. 541 (1863). The Court further found that the opinion in Campbell rested on two principles of law that have been otherwise rejected in the state’s jurisprudence: “vicarious substantive criminal liability for every act committed by a joint venture, and the conclusive presumption of malice from the intent to commit an inherently dangerous felony.” Because the rule “contravened two fundamental principles” of Massachusetts criminal law, the Court removed the constructive murder aspect of the rule, allowing it only to increase a second-degree murder to first-degree where all of the elements of second-degree murder have already been found.