This Article argues that the North Carolina criminal law’s treatment of Shaken Baby Syndrome should be reformed. Rather than leaving in place a legal regime that allows the state to prosecute all Shaken Baby Syndrome cases as first-degree murder, the law should distinguish between accidental and purposeful killings. If the state wishes to punish Shaken Baby Syndrome cases with special severity, the General Assembly should make this policy choice explicit. In making this argument, this Article proceeds in three parts. First, this Article examines how and why North Carolina subjects all Shaken Baby Syndrome deaths to prosecution as first-degree murder. Part I examines the two rules that, when combined, achieve this result: North Carolina’s felony murder rule, and the State’s codification of the crime of felonious child abuse. Second, this Article digs deeper into the felony murder doctrine, arguing that North Carolina’s felony murder rule is indefensible in the Shaken Baby Syndrome context. Finally, this Article’s conclusion suggests reform of the way the North Carolina criminal law treats Shaken Baby Syndrome cases. This Part argues for legislative and judicial reform that would limit North Carolina’s felony murder rule in child abuse cases. If the State wishes killing children to be punished more severely than killing an adult, the General Assembly should make that policy choice explicit. In the absence of such reforms, prosecutors should take it upon themselves to exercise sound discretion. Prosecutors should bring first-degree murder charges only in those Shaken Baby Syndrome cases that involve a defendant who acted with the premeditated design to kill or with knowledge that death would result from his actions.
Derick R. Vollrath, Shaken Baby Syndrome as Felony Murder in North Carolina, 34 Campbell L. Rev. 423 (2012).