Murder After the Merger: A Commentary on Finkelstein

Abstract

Critics have long sought the abolition of the felony murder rule, arguing that it is a form of strict liability. Despite widespread criticism, the rule remains firmly entrenched in many states' criminal statutes. In "Merger and Felony Murder," Professor Claire Finkelstein reconciles herself to the current state of affairs, and seeks to make "an incremental improvement" to the doctrine. She offers a new test for felony murder's merger limitation, which she believes will make merger less "mysterious" and its application "substantially clearer." Briefly put, Finkelstein claims that to understand merger, we must recognize that it is an analytically necessary part of felony murder that the defendant commit two acts - a felony and a killing. Thus, a killing merges with the felony when we have only one act instead of two. To make this determination, Finkelstein articulates a "redescriptive" test that tells us when the felony can be redescribed as a killing. Despite this project's potential, I believe that Finkelstein's proposed merger test, far from improving our understanding of merger, further confuses the doctrine. Finkelstein starts from the false conceptual premise that felony murder requires both a felony and then a distinct act of killing. There is simply no support for this claim. Nor does the promise of this project bear out in the application of Finkelstein's test to actual cases. First, the test cannot be squared with two other limitations on felony murder liability. Second, Finkelstein's test is guilty of the very arbitrary application for which she criticizes other tests. Finally, Finkelstein unsettles the law by turning paradigmatic cases on their heads. Finkelstein's theory, while claiming to refine felony murder, ultimately abolishes the doctrine as we know it and replaces it with a doctrine that seems even more unacceptable.