The opinion
CHAPEL, J.,
dissenting:
¶ 1 I disagree with the majority’s insistence on expanding the felony-murder doctrine past all recognizable bounds. In Wade v. State this Court noted that the purpose of the felony murder doctrine is “to relieve the prosecution of the necessity of proving [a defendant’s] actual malice or premeditated intent”; the intent element of the underlying felony is transferred to the homicide “so that the accused can be found guilty of murder even though the killing is unintentional.” 1 This definition suggests a policy which applies felony murder to punish a defendant more severely where a death occurs during a felony. 2 This ability to hold a person liable for murder, without regard for the defendant’s intent or actual cause of death, should be used with great care. The imposition of liability for unintended deaths erodes the relationship between criminal liability and moral culpability. 3 The majority appears determined to further erode this relationship.
*1121 ¶ 2 Our homicide statutes provide that second-degree felony murder is any murder perpetrated by a person engaged in any felony other than a felony enumerated in the first-degree felony murder statute. 4 Wade v. State explained that, to qualify as second-degree felony murder, a felony “must be inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense or potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide.” 5 The majority relies on this to support its conclusions. However, Wade also provides the description of the purpose of the felony murder doctrine I quote above. When I consider this underlying purpose of felony murder, I cannot agree that finding liability for murder based on furnishing alcohol to a minor is an appropriate application of the doctrine.
¶ 3 Indisputably, there must be a nexus between the underlying felony and the victim’s death. 6 The question is how we determine that link. 7 The two most common methods of finding causation are through agency theory or proximate cause. Rather than answer that question, the majority appears to refer to “nexus” as a replacement for causation — an option this Court has not before exercised. 8 As the cases cited by the majority suggest, in the past this Court has danced around adoption of the proximate cause theory, which requires that the death in question is foreseeable and proximately related to the commission of the felony. 9 However, in Kinchion v. State this Court used a version of proximate cause analysis to conclude that a defendant is liable for first degree felony murder when his accomplice is killed by their victim during the course of an armed robbery. 10 While Kinchion interpreted the first degree felony murder statute, *1122 there is no analytical difference in causation requirements for first and second degree murder. 11
¶4 The majority concludes that the law prohibiting giving alcohol to a minor is an “inherently dangerous” offense. Malaske gave a bottle of vodka to his teenage sister, who shared it (along with other alcoholic beverages not provided by Malaske) with her underage friend. The friend died of alcohol poisoning. The majority determines that Malaske has committed second degree felony murder. Absolutely nothing in the statutory language of either the felony murder or furnishing alcohol to a minor statutes, or both taken together, suggest the Legislature intended such a stunningly broad result.
¶ 5 The key question here is whether the underlying felony, furnishing alcohol to a minor, can support a second degree felony murder charge. The law provides that any person who knowingly sells, provides or furnishes alcohol to a person under 21 is guilty of a felony punishable by a fine and imprisonment. 12 The majority finds that this statute makes alcoholic beverages a controlled substance, and puts minors into a protected class. 13 I agree with those conclusions but cannot read into them the significance the majority assigns them. Under this statute, alcohol is “controlled” in the sense that its disposition is regulated. Alcohol is also regulated by limitations on its manufactured strength and the method of its sale to adults, and by prohibitions against driving, operating machinery, or misbehaving in public while under its influence. However, alcoholic beverages in themselves are not, under Oklahoma law, treated as dangerous. Within regulatory limits, it is legal to make, sell, own and consume alcoholic beverages. The Legislature has made a policy decision to control this substance not because it poses any inherent threat, but because its misuse can, as we see in this case, have tragic consequences. This is in keeping with other legislative decisions to control substances that are not, in themselves, threats to human life. 14
¶ 6 The majority’s conclusion that this felony is inherently dangerous “as determined by the elements of the offense” is explicitly based on the conclusion that minors are a protected class. However, this justification has harsh consequences. The decision also extends liability for murder to bartenders and convenience store clerks who sell alcohol to a minor, if that minor then shares the *1123 alcohol with another minor who drinks too much and dies (perhaps by alcohol poisoning, perhaps in an accident after driving under influence of the alcohol sold by the clerk). Fraternities and other organizations who provide alcohol at parties, and parents who give or supervise graduation parties, will be hable for murder if the alcohol they supply is shared with minors and a death results. 15
¶ 7 According to the majority Malaske committed second degree felony murder when (a) he gave his teenage sister an alcoholic beverage, (b) she shared the alcohol with her underage friend, (c) the friend drank too much, and (d) the friend died. However, given the explicit premise on which this decision rests, Malaske could not be guilty of second degree felony murder if he had given vodka to his 22-year-old friend, who then shared the bottle with another adult who died of alcohol poisoning. That is, Malaske could have given the same controlled substance to another adult, and if an adult died after ingesting too much of that substance, it would be legal.
¶ 8 Perhaps recognizing this distinction, the majority suggests that the crime of furnishing alcohol to a minor is designed to protect people who cannot exercise good judgment in its use. 16 The majority compares this with “the act of distributing or dispensing CDS or trafficking in illegal drugs”, which are predicate crimes for first-degree felony murder. The acronym “CDS”, as used here, stands for illegal controlled dangerous substances. 17 That is, the majority is comparing the Legislature’s regulation of alcohol — a legal substance — with its prohibition against manufacture, distribution, possession or use of illegal drugs. This suggestion shows either the majority’s lack of perspective regarding the facts of this case, or its misunderstanding of the differing nature of various controlled substances. The issue regarding controlled dangerous substances is not one of exercising good judgment; the Legislature has enacted a flat prohibition against these inherently dangerous substances. Put another way, the CDS statutes presume that nobody, regardless of age, can exercise good judgment when illegal drugs are concerned. This is not the case with alcohol. “Trafficking” in large amounts of alcohol is legal and routinely done in the course of business by package stores and convenience stores across Oklahoma.
¶ 9 This opinion is an extension of the majority’s decision in Kinchion. Both cases rest, finally, on the notion that where a death occurs, someone must be liable for murder. In Kinchion, the victim killed Kinchion’s accomplice in self-defense. Here, a young woman died of alcohol poisoning. Felonies occurred near in time to both deaths: Kin-chion and the accomplice were committing armed robbery, while Malaske illegally gave his sister vodka. Kinchion and Malaske should be punished for the crimes they committed. There can be no doubt about that. The majority here, however, are not content with that result, and have invented a way to ensure someone is punished for murder in both cases. This can only be described as the ultimate version of the extremists blame game. There are times when somebody dies and nobody can be liable for murder. This was a sad and senseless episode. Malaske, along with the persons present while the victim drank too much, passed out, and died, should regret every step of his part in it, and suffer the consequences for having commit *1124 ted a felony. He should not be branded a murderer. I dissent.
. 1978 OK CR 77 , 581 P.2d 914, 916 . For a historical review of the changes in Anglo-Saxon law leading to the felony murder doctrine, see Michelle S. Simon, Whose Crime Is It Anyway? Liability for the Lethal Acts Of Nonparticipants in the Felony, 71 Univ. of Detroit Mercy L.Rev. 223, 225-28 (Winter 1994) [Simon] (in early English law, murder had no intent element; a malice element was gradually introduced for all murder charges until the enactment of felony murder statutes); see also Leslie G. Sachs, Casenote, Due Process Concerns and the Requirement of a Strict Causal Relationship in Felony-Murder Cases: Conner v. Director of Division of Adult Corrections, 23 Creighton Law Review 629, 634 (May 1990) [Sachs] (discussing Lord Dacres' Case, Mansell & Herbert's Case, and Coke's initial statement of the felony murder rule).
. This has been described as “community condemnation”. Simon, supra n. 1, at 228-230 (discussing this and other policies justifying felony murder doctrine, including deterrence). Sachs suggests the doctrine may be justified because, by committing a felony resulting in death, the defendant has demonstrated he is a bad person whose intent need not be determined. Sachs, supra N. 1 at 635 (citing LaFave & Scott, Criminal Law 545, 560 (1972)).
. People v. Dillon, 34 Cal.3d 441 , 194 Cal.Rptr. 390 , 668 P.2d 697, 709 (1983); Dana K. Cole, Expanding Felony-Murder in Ohio: Felony-Murder or Murder Felony? 63 Ohio State Law Journal 15, 22 (2002 Symposium) [Cole]; Simon, supra N. 1 at 224.
. 21 O.S.2001, § 701.8.
. 581 P.2d at 916 .
. Id.
. Close reading of the majority opinion fails to reveal any analysis specifically applying any causation theory to the'facts of this case. -In footnote 1 the opinion states that Malaske’s actions in buying vodka and giving it to his sister, knowing she would share it, were sufficient for conviction under the felony-murder statute. The entire discussion of the importance of a nexus between the death and the offense consists of quotes from cases agreeing there must be such a nexus.
. Wade stated that, if causation is proved by a nexus between the crime and the death, the State need not prove the crime was the proximate cause of the death. 581 P.2d at 516 . However, the opinion used causation analysis in determining that the evidence was sufficient. Wade's entire discussion of proximate cause and the facts of the case suggest the opinion was narrowly interpreting the phrase "proximate cause", as the opinion appeared to use a "but-for” causation theory in finding that the victim's death would not have occurred if Wade had not been illegally carrying a loaded gun in a bar. See Simon, supra n. 1, at 244-45 (suggesting Wade used a "but-for” causation analysis).
. See State v. Jones, 1993 OK CR 36 , 859 P.2d 514 , 515 n. 1, in which we discussed both theories of causation, declining under the terms of the felony murder statute to adopt the proximate cause theory to uphold a felony murder conviction where a victim shot an accomplice. This decision led to the revision of the felony murder statute which was interpreted in Kinchion v. State, 2003 OK CR 28 , 81 P.3d 681 . A sampling of cases in which this Court has used, if not adopted, the proximate cause theory include Sanders v. State, 2002 OK CR 42 , 60 P.3d 1048, 1051-52 ; Baker v. State, 1998 OK CR 46 , 966 P.2d 797, 798 ; State v. McCann, 1995 OK CR 70 , 907 P.2d 239, 241 ; Franks v. State, 1981 OK CR 138 , 636 P.2d 361, 365 (equating "nexus” with proximate cause, and finding issue for felony murder was whether commission of the offense was the proximate cause of the death); Irvin v. State, 1980 OK CR 70 , 617 P.2d 588, 597 . See also State v. McCoy, 1979 OK CR 125 , 602 P.2d 1044, 1045 (as in felony murder, misdemeanor manslaughter requires proof that misdemeanor was the proximate cause of death); Miller v. State, 1977 OK CR 14 , 560 P.2d 579, 582-83 (Brett, J., dissenting in part) (tracing history of felony murder in Oklahoma and noting that mens rea requirement was satisfied by the intent to commit the felony which resulted in death).
. 2003 OK CR 28 , 81 P.3d 681, 684 . The Kinchion analysis does not require that the death have been foreseeable in any meaningful sense, but holds a defendant strictly liable for any death which occurs at the time he commits a felony. I continue to disagree with the use of a causation theory, borrowed from civil law, which subjects a defendant to liability for murder without considering either the defendant’s intent in committing the felony or the cause of death. Kinchion, 81 P.3d at 687 (Chapel, J., dissenting). I particularly disagree with the application of proximate cause without ensuring that the death was foreseeable as a result of the defendant's conduct.
. Interestingly, the majority does not cite Kin-chion in its discussion interpreting causation for felony murder. However, that opinion, coupled with the language about proximate cause and nexus theory, suggests that, had the majority wished to engage in any causation analysis here, it would have used a proximate cause theory. See slip op. at 3, n. 3.
. 37 O.S.2001, § 538(F).
. Very few published cases have been decided under this statute. Interestingly, two of them hold that it is not illegal to sell alcohol to a minor when the minor is clearly acting as a messenger for an adult buyer. State v. Williams, 1957 OK CR 14 , 307 P.2d 163 (1957) (teenage newspaper interns sent out to buy alcohol); Leathers v. State, 63 Okl.Cr. 220 , 74 P.2d 967, 972-73 (1937) (sale of whisky to nine-year-old acting for grandmother not illegal). The 1937 version of the statute prohibited the barter, sale or gift of alcoholic beverages to a minor. I do not suggest this Court would reach the same conclusion under the similar language of the current statute, but it does indicate the limits of this Court's previous interpretation of the legislative intent to create a protected class of minors.
.One recent example is the recently passed law controlling the sale of pseudoephedrine in pill form. This law was enacted in an effort to hinder the manufacture of methamphetamine; one common ingredient in methamphetamine is pseudoephedrine distilled from over-the-counter pills. This effectively makes pseudoephedrine a controlled substance. However, only the sale of the pill form is regulated because only the pills are used in methamphetamine manufacture. Gel and liquid pseudoephedrine sales are unrestricted. Pseudoephedrine itself is an effective remedy for all ages; in fact, it is one of the few drugs allowed during pregnancy. Thus pseudoephed-rine is categorized as a controlled substance in order to further a larger drug eradication policy, not because the drug itself is dangerous. By contrast, look at the regulation surrounding tobacco products and firearms. While the 2004 State of the State’s Health report reaffirms the concrete health dangers associated with the use — not misuse — of tobacco products, the State has repeatedly refused any opportunity to treat this substance as inherently dangerous, but has passed numerous regulations surrounding its legal manufacture, distribution, possession and use. Firearms are inherently dangerous but their manufacture, distribution, possession and use is legal subject to state regulation.
.The potential consequences of this decision are far-reaching. For example, under the reasoning of this case, a store clerk would be liable for a homicide if he provided tobacco to a minor who developed lung cancer and died after using the tobacco. Oklahoma has recognized the scientific and medical causal connection between tobacco use and lung cancer. Providing tobacco to a minor is a misdemeanor. 21 O.S.2001, § 1241. Misdemeanor manslaughter causation requirements are comparable to those for second degree felony murder. State v. McCoy, 1979 OK CR 125 , 602 P.2d 1044, 1045 . Following the majority decision, the Legislature has made tobacco a controlled substance and minors are a protected class, so a violation of the prohibition against providing tobacco to minors would support a misdemeanor manslaughter conviction.
. Op. at 1117-18, n. 2. This suggestion would have more force if the Legislature had not, when modifying § 538(F), removed the earlier references to persons of unsound mind and habitual drunkards. 37 O.S.1931, § 5.
. These include marijuana, cocaine and crack, heroin, amphetamine and methamphetamine, LSD, POP, and "ecstasy” (MDMA). 63 O.S. 2001 , § 2-415.