The Arizona Felony Murder Bootstrap

Felony murder.  Not just murder, but felony murder.  Sounds serious, doesn’t it? 

In fact, however, “felony murder” isn’t really murder at all.  The idea is that the perpetrator has agreed to participate in some felony or other –  a robbery, a grand theft auto, a sex offense – and in the course of carrying it out someone is killed.  The perpetrator who neither killed nor meant to kill is liable under the felony murder rule for murder.

One would think that this harsh rule would at least be limited to a lesser category of murder, though.  It’s criminal behavior for sure, but not remotely like intentionally offing someone.  And felony murder is an old rule.  It’s been abolished in a lot of places.  But not in the US.  And not in Arizona, where felony murder is murder in the first degree.

Indeed, in Arizona it is a death penalty eligible offense.  Of course ostensibly that’s only if “aggravating factors” are present.  But the aggravating factors requirement is a joke, a flagrant example of bootstrapping:

bootstrap, v., trans:  to make use of existing resources or capabilities … to modify … by making use of what is already present.


Why do I say this?

If you look at the lengthy list of “aggravating factors” provided by Arizona statute, there’s this one:

2. The defendant has been or was previously convicted of a serious offense, whether preparatory or completed. Convictions for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide, shall be treated as a serious offense under this paragraph.

(Emphasis supplied.)


So, when you fall under the felony murder rule in Arizona – a rule where you can be liable for a murder without killing anyone or even intending to kill anyone – the same offense(s) that bring you under the rule in the first place will also provide an “aggravating factor” that makes you eligible for the death penalty.

I think this stautory scheme is disingenuous, dishonest and violates a defendant’s right to due process of law.  Not that it matters what I think, of course.



Filed under wrongful convictions

5 responses to “The Arizona Felony Murder Bootstrap

  1. John, since my spiraling obsession into Maricopa county, AZ, a year and a half ago, I have discovered more dark, sinister laws and court trickery than I could have ever imagined. It does matter what you think, by the way. Because I for one, when I read your blog, say, “oh, that makes sense!” 🙂


  2. Min

    Some years ago I heard of a prosecutor, I think it was in North Carolina, who elevated a charge of manslaughter to felony murder because manslaughter is a felony. I hope and expect that he did not get away with that, but I have not heard anything else about that.


    • Unfortunately, it wouldn’t surprise me if he did get away with it.

      Irrationally enhancing a crime can be extremely unjust and damages the system, in my opinion. When, for example, the law provides that using a pretend gun or just saying “I have a gun.” to carry out a robbery is the same degree as really having a loaded gun it equates two very different kinds of people. They may both be criminals and deserving of punishment but the guy who uses a real loaded gun is far more dangerous than the former. Yet what happens now, with the whole “victim’s rights” gloss on judicial proceedings, is that the victims all go on and on at sentencing about how scared they were by the fake gun, since they thought it was real, and the DA says there’s no difference and of course the judge then chimes in with “Yeah, there’s no difference, you were such a monster to scare these people that way.” and he gets the same sentence and same villification as the other guy.

      I mean, it’s certainly significant in other contexts that the guy scared people with a fake gun. But it makes a big, big difference that it was a fake gun, and refusing to recognize that is irrational.

      Like the felony murder rule, or bootstrapping a manslaughter charge into a murder charge.

      Thanks for the comment, it’s a good one.


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