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March 23, 2022

The Sentencing Project and Fair and Just Prosecution produce "Felony Murder: An On-Ramp for Extreme Sentencing"

The Sentencing Project and Fair and Just Prosecution today released this interesting new report about sentencing in felony murder cases titled "Felony Murder: An On-Ramp for Extreme Sentencing." Here is part of its executive summary:

Murder typically refers to an intentional killing.  But “felony murder” laws hold people like Mendoza liable for murder if they participated in a felony, such as a robbery, that resulted in someone’s death.  These laws impose sentences associated with murder on people who neither intended to kill nor anticipated a death, and even on those who did not participate in the killing.  As such, they violate the principle of proportional sentencing, which is supposed to punish crimes based on their severity.  These excessively punitive outcomes violate widely shared perceptions of justice.  With one in seven people in U.S. prisons serving a life sentence, ending mass incarceration requires bold action to reduce extreme prison terms such as those prescribed for felony murder.

These laws run counter to public safety, fiscal responsibility, and justice.  Although other countries have largely rejected the felony murder doctrine, 48 states, the District of Columbia, and the federal government still use these laws.  The only two states that do not have felony murder laws are Hawaii and Kentucky.  Six other states require some proof of intentionality regarding the killing to consider it murder, though the use of a gun — or mere knowledge of a codefendant’s gun use — satisfies this requirement in some jurisdictions.  In any case, all felony murder laws use the underlying felony to either a) treat as murder a killing that would not have otherwise been considered murder, or b) increase the gradation of murder, such as from second to first degree.

This report evaluates the legal and empirical foundation, and failings, of the felony murder rule, profiles impacted individuals, and highlights recent reform efforts in 10 jurisdictions. Key findings include:

1. Felony murder laws widen the net of extreme sentencing and are counterproductive to public safety.

  • For felony murder convictions for adults, eight states and the federal system mandate LWOP sentences, 15 states mandate LWOP in some cases, and 17 states and Washington, DC make LWOP a sentencing option.  Four states permit or require a virtual life sentence of 50 years or longer for some or all felony murder convictions.
  • In Pennsylvania and Michigan, one quarter of people serving LWOP were convicted of felony murder — over 1,000 people in each state.
  • Felony murder laws have not significantly reduced felonies nor lowered the number of felonies that become deadly.
  • The extreme prison sentences associated with felony murder laws add upward pressure on the entire sentencing structure.
  • Felony murder laws spend taxpayer dollars on incarcerating people who no longer pose a danger to the community and divert resources away from effective investments that promote public safety.
2. Felony murder laws have particularly adverse impacts on people of color, young people, and women.
  • In Pennsylvania in 2020, 80% of imprisoned individuals with a felony murder conviction were people of color and 70% were African American.
  • Felony murder laws ignore the cognitive vulnerabilities of youth and emerging adults by assuming that they recognize the remote consequences of their own actions — and those of others in their group. In Pennsylvania, nearly three-quarters of people serving LWOP for felony murder in 2019 were age 25 or younger at the time of their offense, as were over half of Minnesotans charged with aiding and abetting felony murder in recent years.
  • An exploratory survey in California found that 72% of women but only 55% of men serving a life sentence for felony murder were not the perpetrators of the homicide.  The California Coalition for Women Prisoners reports that the majority of their members convicted of felony murder were accomplices navigating intimate partner violence at the time of the offense and were criminalized for acts of survival.

March 23, 2022 at 04:01 PM | Permalink


Sorry, when people choose to take part in criminal conspiracies, it is entirely just that every involved party take full blame for every bad outcome. It's simply what happens when they choose to roll those particular dice.

Posted by: Soronel Haetir | Mar 23, 2022 7:41:31 PM

I think the critics of felony murder are misguided insofar as they fail to recognize that an offense associated with death is qualitatively different from an offense not causing death. But supporters of the existing system often fail to see that there are real differences in culpability among those who commit felonies where a death results.

In my mind, full-fat felony murder should require three elements: (1) a significant risk to life inherent in the underlying offense as the defendant knows (or should clearly have known) it will be carried out; (2) a significant role in the offense; and (3) a sufficient nexus between the offense conduct and the cause of death. For example, armed robbery when the offender knew a gun would be positive for #1, while unarmed daytime residential burglary would be negative; (2) actively handling the robbery victim would be positive for #2, while being the getaway driver would be negative; (3) a co-defendant shooting someone would be positive; a burglary victim dying of a heart attack would be negative.

If all three of those criteria are met, I'm OK with the idea that -- like depraved-heart murder -- the offender's mental state and culpability are extremely high and a life sentence (maybe even LWOP in some cases) is not inconsistent with current sentencing norms in the U.S.. However, I'd have lesser-included offenses for meeting 2, 1, or 0 of these elements. At 0, you basically get strict-liability for causing death while committing a felony which I'd limit to a few years' incarceration at most. Felonies may be low-risk, but they are never safe, and so I think criminally negligent homicide is an appropriate analogy to 0-factor felony homicide on the theory that committing a felony is per se the equivalent of criminal negligence.

Of course, one could imagine sentencing guidelines where you assign 0-5 points on each factor if one desired extra precision over the binary options here.

Posted by: Jason | Mar 23, 2022 10:21:44 PM

@Jason: There's a lot of judgment in those three tests, which would surely lead to highly inconsistent results if they were adopted. A lot of prosecutors believe that driving the getaway car IS a significant role in the offense.

Posted by: Marc Shepherd | Mar 24, 2022 7:05:57 AM

Murder also has disproportionate impact on people of color.

Posted by: William C Jockusch | Mar 24, 2022 3:45:29 PM

When I lived and practiced law in Atlanta, I saw one of the strangest examples of the felony murder rule. An off-duty police officer who was a customer at Waffle House at 4 a.m. shot and killed an armed robber who had a shotgun, while he was in the process of taking the cash drawer from a waitress. Management pointed out to the police that the cash drawer had had more than $1,200 in it, even though company policy and training was that cash drawers were not supposed to ever have more than $400 in them. Excess cash was supposed to be stuffed into a floor safe, to which no employee on the restaurant premises had the combination. This detailed cause the police to do some research. They discovered that the waitress handing over the cash drawer to the robber was his first cousin. She was prosecuted under the felony murder rule, even though a cop had killed the robber.

Posted by: Jim Gormley | Mar 26, 2022 10:13:15 PM

The felony murder serves very important policy goals—many of which mitigate the danger that criminals who act in concert pose to society.

Posted by: Federalist | Mar 27, 2022 1:52:15 PM

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