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I'm fine with biting the moral luck bullet. Drunk driving is the clearest example of this for me, where there is obviously no literal intent to kill anyone, but we punish those who do kill someone much more harshly than those that are merely negligent. I have no intuitive reaction to how attempted murder should be punished, but it seems basically fine to me to not escalate punishment to execution without a successful murder.
So why does that not extend to the accomplice, rather than the triggerman, in a felony murder case? What if witnesses testify that the triggerman was at the counter alone while his accomplice was in another room, but cannot identify which was which? It seems odd to say, well we wouldn't kill both of them if we knew which one was which, but since we don't know which one was which we'll kill them both.
Though I'll note that capital Felony Murder seems like a fine rule to me in that a felony is a sufficient predicate for an execution, but we can draw ever more outre cases. How many Jan-6th type "felony trespassers" can you charge with the murder of Ashli Babbitt? Felony murder has been used to charge felons for the deaths of their accomplices, on the theory that violence was a predictable result of their felonies on the day, and so the deaths of their accomplices were a predictable result of the violence they invited. We're only looking for a sufficiently tyrannical prosecutor.
Let's set up a hypothetical: five guys are at a party, all drinking, assume the same amount and tolerance for the sake of the hypo, all clearly plan to drive home. Four of them are caught at a highway checkpoint and arrested, the last is not so "lucky" he took backroads and crashed into oncoming traffic and killed another driver. Should the four men who did not kill anyone be charged just as harshly?
See this post for some elaboration. In the Littlejohn case, I don't think it's obligatory that he be executed, just that there is no miscarriage of justice in doing so. Had the jury gone the other way, I wouldn't have follow-up questions for them, it's fine.
Well, yeah, this is where a jury of your peers comes in, plus a little help from a judge in sentencing. I don't think planning on armed robbery where things going as planned results in someone getting a gun pointed at their face is all that similar to the guys that walked into the capital and were technically trespassing. Many lacked proximity to violence that would look like any sort of meaningful moral culpability. Further, Babbitt died because she charged a semi-fortified position with an armed officer there - her own death could easily be avoided with her own decisions. I get your point, but ultimately, it's hard to say much other than that this is exactly why judgment is relevant. There is no scalable, generalizable principle that would lead me to treat literally all plausible felony murder cases the same; two thugs deciding to knock over a convenient store and one of them shooting the owner in the face is pretty much a canonical example of what felony murder cases should be about though.
If the concern is really just that felony murder is too flexible a charge, I may well agree, but this isn't the case where that seems relevant to me.
Nope. Like I said, I'm just willing to bite the bullet on the moral luck there. I can come up with reasons why I'm willing to do so, but I kind of suspect that they're all just post facto, formulated to serve the intuition rather than the other way around. On the flip side, if there was a clearly articulated law that DUI is always punished equally harshly, based on the known facts about the level of inebriation rather than the outcome of the driving, I wouldn't feel a great deal of sympathy for the guys at the checkpoint that got "unfairly" punished. Some behaviors are beyond the pale - whether drunk driving is one or not seems less obvious to me than whether armed robbery is. In either case, my intuition is that your punishment should coincide with the actual outcomes rather than a probabilistic model of outcomes, but I don't think I can muster a great defense of that position at the moment.
This aligns with my basic intuition, I'd agree that the jury verdict should absolutely be respected absent a near certainty of error.
This, though, strikes me as a little shakier:
The armed robbers planned for a gun to be pointed at someone's face. The crowd charging at armed police officers intended for someone to confront the armed police, that it wasn't them personally who ran into that police officer is moral luck.
Though your point about Juries is well taken.
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