Felony Murder Applied to DWI...What's Next?

Posted on July 24, 2007 by Jamie Spencer

Randy England has an excellent post that illustrates the dangers of applying “worst case scenario” thinking to every situation. But before we get to the article, let me put on my Modest Proposal hat to see whether I can rile you up and get your Tough-On-Crime legislative juices running…

#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.

#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.

I don’t need to tell you that we already have these rules separately, and some of you can guess what will happen when we combine them.

I’ve blogged before about the (il)logical dangers of imprisoning people for life without proving any intent, and we see more and more stories in the news of Texans prosecuted for Felony Murder based on DWI. The state gets there by proving DWI + 2 prior convictions for DWI = felony, and felony + dead body = murder.

Yes, there’s already a more specific statute for Intoxication Manslaughter, whereby a defendant convicted of DWI that causes death can be punished up to 20 years in prison. But that’s not enough for the Life in Prison crowd. So, we came up with the legal fiction of misdemeanor DWI elevated to felony with priors + dead body = murder.

And, because no one has sympathy for defendants convicted of DWI, there is no general outcry about over punishment in these cases. So that leads to murder convictions in DWI cases, without any intent to kill.

But wait, couldn’t the same reasoning be applied to non-DWIs? Let’s get back to Randy’s post “Should driving while license suspended result in a felony-murder charge?” [ read more ]