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California may abolish the felony murder rule. Should Wisconsin?

Shawn K. was 15 when he and three other teens broke into a neighbor's house looking for cash. Shawn's job was to guard the back door. Unfortunately, things did not go as expected and the homeowner was seriously injured and ultimately died. Although no one, not even prosecutors, accused Shawn of harming the victim, he was still found guilty of first-degree murder. How? The felony murder rule.

In most of the United States, people can be found guilty of first-degree murder if a death results from the commission of certain dangerous felonies. In other words, if the defendant was involved in the commission of any of a list of serious crimes, that defendant is considered responsible for any death that results.

The felony murder rule even applies when the victim is killed by police or by accident. It also applies when the person who dies is one of the conspirators.

The idea is this. By their very nature, certain dangerous felonies put people at risk of death or great bodily harm. People who intentionally commit such risky acts, the argument goes, should be held responsible when risk becomes reality. That's certainly a reasonable way of looking at it for many people.

The rule has some pernicious consequences, however. For one thing, it disproportionately affects women and minorities. For example, one California survey found that, among women serving life sentences for murder, 72 percent were not the actual killer.

For another, it results in harsh sentences for people who never intended to put anyone at risk. As in Shawn K's case, people with minor or peripheral roles in a crime often receive comparable sentences to the person who actually committed the murder.

For many generations, law students have been taught that the felony murder rule goes back centuries in the British common law. But some scholars now question that, finding instead that it arose in the 1820's as American states began codifying their common law. Britain abolished felony murder in 1957, and other common law countries soon followed suit. The United States is now the only common-law country where the felony murder rule still exists. Four states have already abolished it, and Pennsylvania is considering limiting the rule.

So is California. The felony murder rule would not be abolished under a recent California reform proposal, but its application would be limited to people who actually kill someone, intend to kill someone, or are major players in a felony and act with reckless indifference to human life.

Opponents of the bill argue that the felony murder rule deters some people from committing dangerous felonies. In the experience of many defense attorneys, however, people simply aren't aware enough of the rule to be deterred by it.

The California bill would apply retroactively and allow people serving time for felony murder to apply to the court to re-examine their sentences. That has drawn stiff opposition from prosecutors, who argue it may cost millions to process hundreds of cases, some so old there may be little left in a court file for a court to consider. But advocates note that cost will be offset by reducing the cost of incarceration for many people, serving 25 years-to-life sentences, at an annual cost of $80,000 per inmate. 

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