Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law.
A lot of deeply unjust aspects of our system are the product of undue and historically inaccurate deference to supposed ancient principles which authoritarians claim they cannot now overturn, you know, due to their ancientness. Many of these ancient principles are not nearly as ancient as their defenders claim. For example, the Supreme Court rests our "anything goes" border search doctrine on ancient principles whose history is thinly documented and which several observers have questioned.
This article makes it very clear that nothing about the history of felony murder justifies charging someone with that crime because they got in a car accident in conjunction with a felony.
In historical felony murder cases in America:
There are no cases of a victim voluntarily contributing to his or her own death. There are no suicides, no voluntary drug overdoses, no overzealous police officers plunging off roofs or into icy rivers or in front of carriages while pursuing felons. There are no cases of victims having heart attacks out of mere fright (although there is one case in which a victim died while struggling with an assailant). There are no cases of victims getting the wrong medicine or contracting diseases at hospitals, or getting killed accidentally in traffic (unless you consider a planned train wreck accidental). Perhaps most importantly, there are no cases of feloniously shooting at livestock or game and unforeseeably hitting a man. So the proposal in the English treatises to predicate murder liability on accidental death in stealing poultry was never put into practice in England or America.
In reviewing nineteenth-century American felony murder convictions, we come across no freak accidents of any kind.
The Origins of American Felony Murder Rules by Guyora Binder :: SSRN