12 Sw. U. L. Rev. 413 (1980-1981)
Reflections on Felony-Murder

handle is hein.journals/swulr12 and id is 423 raw text is: REFLECTIONS ON FELONY-MURDER
George P. Fletcher*
Of all the reforms proposed by the Model Penal Code, perhaps
none has been less influential than the Model Code's recommendation
on the perennial problem of felony-murder.' As found in our nine-
teenth-century criminal codes, the rule has several variations. The ba-
sic scheme is to hold the accused liable for murder if the killing is
connected in any way with the attempt to commit a felony or the flight
from the scene of a felony.' It does not matter whether the accused or
an accomplice causes the death. Nor does it matter whether the killing
occurs accidentally and non-negligently. According to one popular ra-
tionalization, the felon's intent in committing the felony attaches, ficti-
tiously, to the killing and somehow becomes transformed into the
malice aforethought required for murder.'
The drafters of the Model Penal Code attempted to crack this ficti-
tious connection between the culpability of committing an ordinary fel-
ony and the culpability required for the most egregious felony of
murder. The Code stands for the principle that the minimal culpability
required for murder is greater even than reckless killing. The killing
must be not only reckless, but, in addition, committed under circum-
stances manifesting extreme indifference to the value of human life.4
* Professor of Law, U.C.L.A. School of Law. This article was originally presented as part
of the Distinguished Lecture Series at Southwestern University in September 1980.
I. MODEL PENAL CODE § 210.2(I)(b) reads in pertinent part:
(i) Except as provided in Section 210.3(l)(b), criminal homicide constitutes murder
when...
(b) it is commited recklessly under circumstances manifesting extreme indifference to
the value of human life. Such recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an attempt to commit, or flight
after committing or attempting to commit, robbery, rape or deviate sexual intercourse by
force or threat of force, arson, burglary, kidnapping or felonious escape.
2. E.g., CAL. PENAL CODE § 189 (West Supp. 1981); IDAHO CODE § 18-4003 (1979); NEV.
REV. STAT. § 200-030(I)(b) (1979).
3. M. FOSTER, A REPORT OF SOME PROCEEDINGS OF THE COMMISSIONER FOR THE TRIAL
OF THE REBELS IN THE YEAR 1746 IN THE COUNTY OF SURREY AND OF OTHER CROWN CASES 259
(1762).
4. MODEL PENAL CODE § 210.2(1)(b).

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