Felony Murder: The Crotchet of American Murder Jurisprudence
Alabama is one of 47 states, in addition to Washington, D.C., and the federal government, that enforces some form of the felony-murder rule (“the Rule”).
The Rule upgrades all unintentional homicides to murder if the homicide occurs during the commission of a felony. And Alabama, like most jurisdictions, charges that all criminal actors involved in the underlying felony are guilty of murder regardless of who actually caused the death. While Burton took $1,500 from the store’s safe, the five other men robbed the customers. A customer named Doug Battle exchanged insults with one of the robbers named Derrick DeBruce. After Burton had exited the store with his booty, DeBruce attempted to shoot Battle in the buttocks. The bullet missed and ricocheted off the floor, hitting several of Battle’s vital organs. He died from his injuries, and Burton was convicted and sentenced to death under Alabama’s felony-murder statute.
This article briefly looks at the origins of the felony-murder rule and its historical roots in America. We will see the injustice that arises from the use of it and examine jurists’ and academia’s almost universal condemnation of it. There are two sides to every argument, and we will explore the reasons proponents put forth to justify the Rule and examine why such an unjust doctrine not only persists but thrives. Finally, we will examine the ongoing movement to rein it in and/or abolish it.
Origin and Spread of Felony Murder in America
Attempts to identify the origins of the felony-murder rule in the English common law have been specious at best. There exists no long line of well-reasoned decisions laying the foundation for the Rule. Two cases from the sixteenth century are often cited – Lord Dacre’s Case, 72 Eng. Rep. 458 (K.B. 1535), and Mansell and Herbert’s Case, 73 Eng. Rep. 279 (K.B. 1558) – but neither of those are true examples of the felony-murder rule.
Scholars rely primarily on legal commentators in attempting to uncover the Rule’s shrouded beginnings. Early English common law considered all killings – even accidental ones – to be murder. Leonard Birdsong, Felony Murder: A Historical Perspective by Which to Understand Today’s Modern Felony Murder Rule Statutes, 30 Thurgood Marshall L. Rev. (2006) (“Birdsong’s Review”). Then between 1247 and 1257, Henry of Bracton – an English judge and Christian cleric – combined canon law principles with English law to formulate the felony-murder rule. Id. He wrote that an accidental killing or killing done in self-defense couldn’t be murder “because a crime is not committed unless the intention (motive) to injure exists.” Birdsong’s Review. Bracton gave the example of a person throwing a stone at a bird and a passerby is struck and killed. If the stone thrower were engaged in an unlawful act (e.g., the bird was a hen that belonged to his neighbor), the killing would be a “felony.” (Bracton did not say it was murder.) But if the thrower were engaged in a lawful act (the bird was wild game), the killing would be considered accidental (“per infortunium”) and “liability is not imputed to him.” Id.
Several other commentators followed with variations of Bracton’s statements, an analysis of which is beyond the scope of this article. (Interested readers should consult Birdsong’s Review.)
For our purposes, the next commentator of significance is English jurist Sir Edward Coke. In expounding upon Bracton, Coke wrote that if a person shot at a tame fowl of another man “and the arrow by mischance had killed a man this had been murder, for the act [poaching or stealing the bird] was unlawful.” Coke, The Third Part of the Institutes of the Laws of England 56 (1797). But many modern scholars believe Coke accidentally wrote “murder” instead of “felony” because he wrote this in his commentary on manslaughter. Plus, Coke had earlier stated murder requires malice aforethought. In the latter part of the eighteenth century, Commentator Sir Michael Foster, perhaps influenced by Coke’s mistake, stated the felony-murder rule as we have come to know it: An unintended killing by someone with felonious intent “will be murder by reason of the felonious intent.” Id. The Rule can be represented with the mathematical equation: FELONY + UNINTENTIONAL KILLING = MURDER. And it may be the product of a mistake.
In 1794, Pennsylvania enacted the first American statute that used the principles of felony murder – but only as factors to elevate the degree of the murder. The statute was the first graduated murder statute and was meant to limit the death penalty to offenses defined as “first-degree” murder, which included: murder by poison; lying in wait; any willful, deliberate, and premeditated killing; or a killing that occurred during the perpetration or attempted perpetration of any arson, rape, robbery, or burglary. The statute provided that all other murders would be “second-degree.” A few years later, Pennsylvania added kidnapping to the list.
In 1827, Illinois passed the first true felony-murder statute that read, in part, “involuntary killing ... in the commission of an unlawful act which in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent ... shall be deemed and adjudged to be murder.”
Shortly thereafter, in 1829, New York passed the broadest form of the law, which provided that killing “without any design to effect death, by a person engaged in the commission of any felony” could result in a felony murder conviction. Today, 47 states, the District of Columbia, and the federal government have codified the felony-murder rule.
The Crotchet of American
Murder Jurisprudence
While felony murder is not rooted in English common law, it was part of English law. But in English courts, it was highly disfavored, seldom followed, and often castigated. English Judge Fitzjames Stephen commented that imposing murder liability in the course of a felony such as theft would be “perfectly barbarous and monstrous.” Birdsong’s Review. England abolished the Rule in 1957. India and other common-law nations abolished it soon thereafter. But not in America: The United States is the only nation in the world where the Rule continues to exist. The felony-murder rule remains a formidable weapon in the arsenal of prosecutors throughout the nation.
There are four branches on the “murder tree” in American jurisprudence: (1) felony murder, (2) intent to kill, (3) intent to cause grievous bodily harm, and (4) depraved heart/gross reckless murder. The latter three branches are the “malice aforethought” limbs.
One definition of homicide is “[t]he killing of one person by another.” Black’s Law Dictionary (7th ed. 2000) (“Black’s”). But not all homicides are murder. Murder is defined as “[t]he killing of a human being with malice aforethought” Id. “Malice” is typically defined as “ill will” or “wickedness of heart.” Id. And the definition of “aforethought” is “[t]hought of in advance; deliberate; premeditated.” Id. Felony murder is clearly the oddball as it is the only branch that doesn’t require malice aforethought.
Malice aforethought is closely associated with “mens rea.” Mens rea literally means “guilty mind” and is fundamental to our criminal justice system. Mens rea is a measure of a person’s mental or personal culpability in committing an act. Criminal offenses generally require an action (“actus reus”), but we judge the action’s severity based upon the mens rea of the actor.
We judge differently a teen who leaves a banana peel on the floor as a prank so that his friend will slip and a wife who leaves the peel so her decrepit husband will fall to his death. The act is the same, but the mens rea is different.
Our sense of justice in addressing crime in general, and homicide in particular, often focuses on the actor’s culpability rather than on the harm done. For example, we sanction severely a person who intentionally shoots at the head of another and misses – even though no harm was done. Conversely, if a defective tire on a new motorcycle blows out and the passenger is killed, the driver isn’t sanctioned – unless he or she was acting recklessly.
Mens rea is often the reason why crimes are graded by degree of severity. Without malice aforethought, murder is reduced to manslaughter. Black’s. Said another way, with the exception of felony murder, there can be no murder without malice aforethought. In a classic manslaughter example, a man catches his wife in an act of infidelity and in his sudden rage he kills both her and her paramour (“heat of passion” killing). It’s not murder because he didn’t have a “wicked heart” before the homicide, i.e., he lacked malice aforethought. Yet because he intended to kill, it is an unlawful homicide.
There are still lower degrees of unlawful homicide, such as involuntary manslaughter where there is no intent to kill but the accused engaged in reckless behavior, such as illegal street racing or drunk driving, that resulted in a crash and death.
Lower still might be negligent homicide where a person inadvertently creates an unreasonable risk of death, e.g., a landlord fails to repair rickety stairs after being put on notice and a renter falls to his death. These lower degrees of homicide have corresponding lower punishments because the mens rea is reduced, i.e., punishment is proportionate with criminal culpability.
A homicide without any guilty mind is an unintentional killing. An example would be a person obeying all traffic laws who struck and killed a toddler who suddenly jumped in front of the person’s car. Unintentional homicides typically are not criminal offenses.
Yet felony murder requires no malice and no criminal intent with respect to the homicide. Under the common-law theory of “constructive malice,” the intent to commit the underlying felony “implies” the malice to elevate even an accidental death to murder. J. Miller, Criminal Law § 88(3) (1934). In most jurisdictions, felony murder is graded as first-degree murder and is subject to the most severe penalties – including life in prison or even death in those jurisdictions that impose capital punishment. Here are a few results of this tortured reasoning:
James Colenburg stole a car in Missouri. Seven months later, he was driving down a residential street when a two-year-old child suddenly ran in front of the stolen car. The toddler was struck and killed. Colenburg was convicted of felony murder predicated on theft.
Jonathan Earl Stamp robbed a California bank at gunpoint. After Stamp fled the business, the bank’s owner had a heart attack and died. Three separate doctors acting as expert witnesses testified that even though the deceased had a heart disease, arthrosclerosis, the fright from the robbery caused the heart attack. Stamp was convicted of first-degree murder based on California’s felony-murder statute.
In those examples, the convicted felon participated in the acts that caused the death. In Florida, Ryan Holle overheard his roommate at a party speaking with other guests about stealing a safe from a drug dealer’s home. Holle was tired, drunk, and didn’t believe his roommate was serious. At the end of the party as Holle was on his way to bed, his roommate asked for the keys to his car. Holle gave him the keys. The roommate and another friend drove to the drug dealer’s house, stole the safe, and clubbed a resisting resident to death while Holle remained at home, apparently in bed. Holle was convicted of felony murder and sentenced to life without parole (This sentence was commuted in June 2015 down to 25 years in prison.)
Under the “agency theory,” all of the accomplices in a felony are equally as guilty of murder as the felon whose actions directly caused the death. Holle’s experience is neither an isolated case nor unusual.
In January 1985, Doyle Skillern was executed in Texas after being convicted of felony murder. He was waiting in a nearby car when his accomplice killed an undercover narcotics agent. In a perverse twist, the shooter received a life sentence and is parole-eligible.
Beauford White stood as a lookout outside a house in Florida while two accomplices went inside searching for drugs. The two accomplices killed six occupants. According to The Atlantic,White actively discouraged them. Nevertheless, he was convicted of felony murder and executed on August 28, 1987.
It’s unknown how many other defendants who killed no one have been executed or are currently on death row because such statistics are not recorded.
In addition to the agency theory, 19 jurisdictions – including the federal government – prosecute felony murder under the “proximate cause theory.” This theory permits all accomplices to be convicted of felony murder even when the death is caused by someone other than one of the felons. An Illinois police officer believed Allison Jenkins possessed drugs. The officer drew his gun and chased Jenkins. When the officer tackled Jenkins, the gun fired and struck the officer’s partner, killing him. Even though no drugs were found, Jenkins was convicted of felony murder predicated on battery of a police officer.
Late one evening in July 2017 in Oklahoma, Trooper Rodney Rideaux pulled over D’Angelo Burgess because he was traveling too close to the vehicle in front of him. Rideaux asked Burgess to step out of his vehicle, but Burgess sped away instead. Rideaux gave chase in his cruiser and radioed for assistance. Several troopers joined the chase on Interstate 35 at speeds above 100 mph. Other troopers, including Lieutenant Heath Meyer, laid “stop sticks” (portable tire-deflation devices) on an upcoming stretch of roadway. Burgess drove right past them without incident. Meyer ran onto the interstate to retrieve the sticks. Rideaux, seeing Meyer and the sticks, screeched to a stop. Trooper Clint Painter came over a hill behind Rideaux. Unable to stop in time, Painter slammed into Rideaux’s cruiser, ricocheted off and hit Meyer who died 10 days later. Burgess was convicted of first-degree felony murder and faces a life sentence.
Proximate cause permits conviction for felony murder even when the person killed is an accomplice to the underlying felony. In Illinois, 15-year-old Justin Doyle and two other teens attempted to rob a home in Rockford. One of his teen accomplices was shot and killed by a guest at the home, and Doyle was convicted of felony murder. (The Governor of Illinois granted clemency to Doyle after almost 10 years in prison. He was released from prison in 2017.)
These are but a few examples of the injustice that occurs as a result of the felony-murder rule in America. It’s unsurprising that the Rule has been the subject of relentless criticism in the courts with judges describing it as “abhorrent,” “anachronistic,” “barbaric,” “injudicious,” “unprincipled,” “parasitic,” and a “modern monstrosity” that “erodes the relationship between criminal liability and moral culpability.” James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law, 51 Wash. & Lee L. Rev. 1429 (1994) (“Tomkovicz”). Legal scholars and commentators have described the Rule with language no less acerbic. Id.
The Felony-Murder
Rule’s Doggedness
In the face of such well-deservedvitriol – and based on the examples of England and other nations – one would presume that the felony-murder rule would soon be abolished in America. But according to Tomkovicz, the Rule continues to be widely used throughout the United States, and its future is assured.
Professor Birdsong writes “[d]espite such criticism, its continued use by prosecutors persists in most American states. It persists because our legal notion of punishment requires proportionality and proportionality requires grading.” Birdsong then gives hypothetical examples of Bonnie and Clyde robbing a liquor store. In one example, the bandits make off with the loot, and no one is harmed. In the second, the clerk reaches for a gun, and Bonnie shoots but misses and kills a store patron. Birdsong rightly offers that the punishment in the latter example should be greater than in the former. But this reason appears to be an oversimplification because, as we have seen, the manner in which the Rule is often applied seemingly has no regard for culpability and corresponding proportionality.
Tomkovicz postulates that the Rule’s persistence is attributable to: (A) Historical Roots (because we’ve done it for so long, we think it must be foundational and ought to tread carefully in changing it); (B) The Politics of Law and Order and Life and Death (Americans tend to believe we are plagued by crime and believe a warlike, punitive approach is the best way to handle the problem, and prosecutors/politicians fear that calling for abolition of the Rule will make them appear “soft on crime” – especially crimes where a life was taken); (C) The State of the Law (limiting the Rule to certain specified or types of predicate felonies causes the Rule to appear more acceptable); and (D) Popular Conceptions of Culpability and Responsibility (the public’s perception of culpability and the legal definition are not the same, e.g., a robber who is fleeing his crime and kills a pedestrian because his car’s brakes failed is not perceived by the general public as “innocent” of murder, but he would be innocent under the three malice-aforethought limbs. It is scholars and jurists who criticize the Rule, not the general public).
Other scholars have suggested somewhat hidden motives exist for the continued existence of felony-murder statutes. For example, a politician’s constituency may have a financial interest in expanding prisons. Abolishing felony murder might reduce the prison population and the corresponding need for prison expansion.
Proponents of the felony-murder rule argue the Rule is necessary for its deterrent value. Yet there doesn’t appear to be a consensus as to what the Rule deters. For his thesis The American Felony Murder Rule: Purpose and Effect, U.C. Berkeley (2012), Daniel Ganz undertook an extensive examination of judicial opinions from the first five states that enacted a felony-murder statute: Pennsylvania, Illinois, New Jersey, New York, and Maine.
Some of the jurists opined that the purpose of the Rule was to deter crime in general. Others opined it was to deter violent felonies. Still other opinions stated the Rule deterred felons from using violence or being careless during the commission of crimes. Finally, there were jurists who observed the purpose of the felony-murder rule was simply to give prosecutors leverage during plea negotiations, viz., threaten an accused with a life sentence for murder in order to coerce him to plead guilty to the underlying felonies.
Ganz also undertook an in-depth statistical analysis to determine the deterrent effect of the Rule. He ran 24 complex regressions that accounted for multiple variables, including whether the jurisdiction had a felony-murder statute during the study period; whether the jurisdiction had adopted or repealed a felony-murder statute; the total number of crimes committed that are commonly used as a predicate offense for felony murder; the number of deaths in those crimes; the population; the overall crime rate; the employment ratio; the GDP; and the amount of government spending within the state.
Ganz concluded that if the purpose of the Rule is to deter crimes or deter the violence used in crimes, the evidence shows that the Rule is a failure.
Professor Anup Malani found in his study that jurisdictions which enforce the felony-murder rule are more likely to have a higher proportion of deaths during robberies while at the same time have lower rates of deaths related to burglaries, larcenies, and auto thefts. Does the Felony-Murder Rule Deter? Evidence from FBI Crime Data, 2002 (“Malani’s Study”). Yet the value of these findings as related to the deterrence value of felony murder are questionable because Malani’s findings are based on the FBI’s crime statistics over several years.
Malani compared the rates of deaths in those crimes for each jurisdiction, while observing whether a felony-murder statute was present. He didn’t account for other variables.
There is an apocryphal story about a professor seeking to determine the effect of frogs’ legs upon frogs’ hearing. The professor removed the left hind leg of the first frog and shouted “jump!” The frog jumped, arcing toward the left. The professor recorded that the removal of the leg did not affect the frog’s hearing. He then repeated the experiment upon another frog but removed the opposite hind leg. The frog jumped but arced to the right. The professor recorded the same findings. On yet another frog the professor removed both hind legs and shouted “jump!” The frog remained motionless and unblinking. The professor wrote, “Without hind legs the frog is deaf.”
While the FBI’s data in Malani’s Study fluctuated, one wonders how much of the change was attributable to the presence or absence of a felony-murder rule? For example, during the period in question, was there an increase in heroin use or a “crack epidemic” or an increase in drug use/addiction in general? Would those behaviors affect the rate of robbery, burglary, etc? What about the economic downturn in the early 1980s? Would a sudden rise in unemployment affect those crimes and the corresponding statistics?
Malani also adds that the Rule may actually increase homicides. He argues that if a person is unintentionally killed while a felony is underway, the felon(s) may kill any remaining witnesses to hinder or avoid detection. That is, if a culprit knows he is now facing a life sentence – or even a death sentence – for an unintended homicide, there isn’t any greater punishment to be received for killing the remaining witnesses. But by killing them, there is the incentive of possibly evading accountability.
Attempts have also been made to demonstrate, theoretically, the deterrent value of the felony-murder rule using economic rationale. As most retailers are aware, one key to successful business is to purchase goods at the lowest possible price and resell them at the highest possible price.
In his report Two Economic Rationales for Felony Murder, J. Gregory Sidak proposes that the punishment for felony murder can be viewed as a “tax on violence.” Sidak argues, with graphic demonstrations, that if the “cost” of violence becomes too high (the “price” being a lengthy prison term), it becomes impossible for offenders to obtain targeted or desired profits by violent means. This will force the would-be bandits to engage in criminal enterprises that call for cheaper means other than violence, such as stealth. This change in means of execution of the crime equals a decrease in violence, i.e., deterrence.
Sidak also argues that the joint liability shared by all criminal actors under the felony-murder rule causes criminals to monitor their accomplice’s behavior. If a perpetrator knows he may receive a life sentence due to the carelessness of his partner, he will ensure that the partner exercises due care during the crime – thereby deterring unnecessary violence.
But these rationales rest upon three highly dubious suppositions: (1) perpetrators are aware of the felony-murder rule and how it operates, (2) perpetrators rationally consider various crimes and then choose the one that offers the most profit at the least cost, and (3) perpetrators behave in a rational, careful manner while the crime is in progress.
As to supposition (1), it’s highly doubtful that the average criminal offender is well-versed in the nuances of the application of the felony-murder statute of the jurisdiction in which he or she plans on engaging in criminal activity. Perhaps most people know a crime where a death occurs will likely carry harsher consequences, but few are aware of the agency rule, proximate cause theory, accomplice liability, etc. It’s comparable to the right to counsel. While it’s safe to presume most Americans know they have a right to an attorney, it’s equally safe to assume few know exactly when the Fifth Amendment privilege against self-incrimination attaches, as opposed to when the Sixth Amendment right to counsel attaches. Similarly, one may not know the difference between the purpose and protections of the Sixth Amendment right to counsel compared to the Fifth Amendment right. Such knowledge is generally possessed only by those intimately acquainted with the legal profession.
As to suppositions (2) and (3), it’s similarly doubtful that the price of gas or depletion of the tires of the get-away car have ever been decisive factors in determining whether to rob an establishment. Same goes for whether a robber has ever checked to determine if his accomplice’s weapon has a functioning safety. The point is, while the economic rationales are presented expertly in the abstract, the rationales are so far divorced from how crime is planned and perpetrated in real life that the conclusions do little to “make a case” for the deterrent effect of the felony-murder rule.
Professor Tomkovicz addressed what he referred to as the “Deterrence Delusion.”
First, he logically compared the felony-murder rule with strict-liability laws. Generally, when a plaintiff suffers injury, they must prove that the defendant’s negligence caused the injury. If the defendant can show they exercised the reasonable standard of care required under the circumstances and that the harm was neither foreseen nor foreseeable, they weren’t negligent and thus not liable for the injury.
But under the principle of strict liability, no such defense is available. The parties involved must guarantee absolute safety and will be held liable regardless of whether or not they exercised that level of care that a reasonable person would have done in similar circumstances. Under strict liability, legal responsibility for injuries is imposed even in the absence of fault or negligence. Strict liability laws originated as public welfare laws enacted primarily to regulate unduly dangerous undertakings and the manufacture of consumer products. The knowledge of liability for any and all harm served both to limit the number of people undertaking the activities and to encourage the parties who did undertake those activities to exercise the utmost care. The result has been a measurable decrease in harms and accidents.
Tomkovicz observed that the deterrence arguments supporting the felony-murder rule make it akin to strict liability. The Rule is designed to limit the number of people undertaking the commission of a felony and to impel those who do to exercise extreme care to ensure no one is unintentionally harmed. But unlike public welfare laws, the felony-murder rule provides no measurable effect regarding the supposed deterrence and/or increased vigilance of the perpetrators involved. Since the rationale of the deterrence value is generally accepted blindly, without conclusive evidence to support it, Tomkovicz refers to it as the Deterrence Delusion.
Tomkovicz further argues that the burden is on the proponents of the Rule to provide such evidence. Tomkovicz reasons that since the felony-murder rule is an anomaly in allowing a murder conviction without the otherwise requisite malice or culpability, the burden of proof lies with its proponents to justify its continued use.
Reform and Repeal
As explained earlier, the felony-murder rule states that an unintentional homicide occurring in the commission of a felony is murder. And at one time in English common law, the nature of the felony did not matter. Any homicide during any felony was murder. A Comparative Review of States’ Recognition of Reduced Degrees of Felony-Murder, 40 Wash. & Lee L. Rev. 1601 (1983). To be sure, at common law, there were far fewer crimes designated as felonies as opposed to the many modern felonies. And common-law felonies were serious offenses that were “malum in se” or “evil in itself.” Malum in se included murder, rape, robbery, arson, larceny, burglary, and kidnapping. Many modern felonies are “malum prohibitum” or “prohibited evil.” These are crimes only by statute or regulation and include the sale of untaxed alcohol, insider trading, and similar legislatively proscribed conduct.
Attempts to confine felony-murder to predicate felonies that are malum in se began early on. Limitation on the common-law felony-murder rule was achieved via judicial opinion and legislation. For example, in Regina v. Serne, 16 Cox Crim. Cas. 311(1887), the Court held that felony-murder requires a finding that a person of common intelligence would be aware that the felonious conduct posed a danger to human life.
State legislatures enacted statutes that limited felony-murder convictions to specified predicate felonies (aka “enumerated crimes statutes”). Most of these enumerated felonies were malum in se.
Other states enacted statutes that limited felony murder convictions based only on felonies that were “inherently dangerous to human life” or “by their nature demonstrate a disregard for the value of human life” or “have a likelihood of ending in bloodshed.” Some states enacted statutes that contained both limiting language and enumerated felonies. The idea was to limit felony murder to only homicides occurring during violent or dangerous felonies. In Powers v. Commonwealth, 61 S.W. 735 (Ky. 1901), the Kentucky Supreme Court ruled that felony murder occurs only when the underlying felonious act has a natural tendency to produce unintended death.
In addition to limiting the qualifying predicate felonies, some states also placed limitations on the criminal actors. For example, Arkansas, Louisiana, Mississippi, New York, North Dakota, Oregon, and Washington required that one of the perpetrators commit the homicide. And in Colorado, Connecticut, New York, North Dakota, Oregon, and Washington, the person killed had to be someone other than one of the accomplices.
Other states imposed limitations on the timing of the homicide. In State v. Opher, 188 A. 257 (Del. 1936), the Court ruled that shooting a rape victim after completion of the rape was not within the res gestae of the underlying offense (that is, did not occur during the commission of the rape), and felony murder was inapplicable. Delaware was not alone as Michigan, New York, and Washington had similar rules. But Colorado, Nebraska, Nevada, and Pennsylvania were among those states that included the periods immediately before and after the predicate felony as within the res gestae of that felony.
Eventually, Kentucky repealed its felony-murder statute altogether and abolished the practice. K.R.S. § 507.020. Hawaii also repealed its felony-murder statute. H.R.S. § 707-701. In the commentary accompanying Hawaii’s murder statute, the well-reasoned criticism of the Rule is acknowledged: “The felony-murder rule has an extensive history of thoughtful condemnation” and “principled argument in its ... defense is hard to find.” The commentators further observed “[i]f the murder penalty is to be used to reinforce the deterrent effect of penalties imposed for certain felonies (by converting an accidental, negligent, or reckless killing into murder), it would be more effective, and hardly more fortuitous, to select a certain ratio of convicted felons for the murder penalty by lot.”
And common-law felony murder was judicially abolished by the Michigan Supreme Court in People v. Aaron, 299 N.W.2d 304 (Mich. 1980). As one commentator put it, “The common-law felony murder doctrine, by substituting the intent to commit a felony with the malice aforethought required for first-degree murder, violates the basic principle of criminal law that bases liability on individual culpability and is therefore abolished in the State of Michigan.” Common-Law Felony Murder Doctrine Judicially Abolished in Michigan: People v. Aaron, 299 N.W.2d 304 (1980), 60 Wash. U. L. Q. 1197 (1982).
Near the end of 2017, the Supreme Judicial Court of Massachusetts (“SJC”) narrowed the felony-murder doctrine of the Commonwealth. In Commonwealth v. Brown, 477 Mass. 805 (2017), the SJC instructed that “the scope of felony-murder liability should be prospectively narrowed, and [we] hold that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.” The three prongs of malice are the three “branches” of murder other than felony murder discussed earlier. The SJC explained that by requiring actual malice in lieu of constructive malice, felony-murder could no longer serve as an independent offense but is limited to its evidentiary role as a possible aggravating factor to elevate the murder to first-degree murder where the murder was neither premeditated nor committed with extreme depravity.
The Supreme Court of the United States (“SCOTUS”) has also snipped the tentacles of the felony-murder rule.
Earl Enmund and two accomplices decided to rob Thomas and Eunice Kersey. Enmund was the driver and parked the car some distance from the Kerseys’ home. He remained in the car as the two accomplices went to the home and knocked on the door. When they tried to rob Thomas, Eunice appeared with a shotgun and shot one accomplice. The accomplices returned gunfire, and the Kerseys were killed. Enmund was convicted under Florida’s felony-murder statute and sentenced to death.
In Enmund v. Florida, 458 U.S. 782 (1982), SCOTUS reversed. The Court reasoned that the primary purposes of the death penalty are deterrence and retribution. Enmund had aided and abetted his codefendants, but he personally did not kill, attempt to kill, or intend to kill. Since the death penalty cannot deter someone who didn’t even have an intent to kill and since putting someone to death for two killings he didn’t commit is disproportionate retribution, imposition of the death penalty in his case violates the Eighth and Fourteenth Amendments, the Court ruled.
But in Tison v. Arizona, 481 U.S. 137 (1987), SCOTUS concluded that lack of intent to kill, by itself, is insufficient to reverse a death sentence. Three brothers, Ricky, Raymond, and Donald Tison, took guns into a prison to enable their father, Gary Tison, and Gary’s roommate, Randy Greenawalt, to escape. The five armed men fled in a Lincoln that became disabled in the desert. The group decided to commandeer a car from a passerby. Raymond flagged down John Lyons who was traveling in a Mazda with his family. The plan was to leave the Lyons family in the desert with the disabled vehicle. But while the three brothers were fetching a jug of water to leave with the Lyons family, Gary and Greenawalt shot and killed the entire family. Days later, the Tisons and Greenawalt had a shootout with police. Donald was killed, and Gary escaped into the desert where he died of exposure. Greenawalt, Ricky, and Raymond were convicted of murder; Raymond and Ricky were convicted under Arizona’s felony-murder statute and sentenced to death. They argued that under Enmund they couldn’t be executed because they had not killed, attempted to kill, or intended to kill.
SCOTUS distinguished Tison from Enmunds because the Tison brothers played a major role in the underlying robbery, and they demonstrated reckless disregard for human life by engaging in activities they knew to carry a grave risk to human life. The majority reasoned that the Constitution doesn’t prohibit a death sentence imposed upon defendants whose participation in the crime was major and whose mental state was one of reckless indifference to human life. While neither of these decisions limited convictions under the felony-murder rule, they did restrict capital punishment imposed upon conviction only to defendants who had a culpable mental state constituting malice aforethought.
The Tison decision also indirectly impacted felony-murder in decisions that were directed at protecting persons under 18 years of age (“juveniles”). In Roper v. Simmons, 543 U.S. 551 (2005), the Court held that the Eighth and Fourteenth Amendments to the U.S. Constitution prohibit sentencing persons to death upon conviction of crimes committed when they were juveniles. Consequently, a felon who was a juvenile at the time of commission of the crime that led to a felony-murder conviction cannot be sentenced to death regardless of their intent, participation in the crime, or reckless indifference to human life.
And in Miller v. Alabama, 567 U.S. 460 (2012), the majority held that the Eighth Amendment to the U.S. Constitution prohibits sentencing a juvenile to life in prison without parole unless the sentencing court conducts a hearing and determines that the defendant is one of those “rare juveniles” who is permanently incorrigible. Consequently, in states that have abolished parole or that do not provide parole eligibility to offenders convicted of murder, a defendant who was a juvenile at the time of their crime and was convicted of felony murder cannot be sentenced to life imprisonment, unless the sentencing court makes the appropriate finding.
According to Birdsong, the felony-murder statutes of 35 states follow the enumerated crimes model. Most of those jurisdictions include robbery, burglary, arson, rape, and kidnapping in their list of enumerated crimes. A few states have added sodomy, larceny, and mayhem to the list. A minority of jurisdictions have statutes that do not list the predicate felonies but use language to limit application of the Rule to violent crimes or actions that may result in death. Despite these limitations, injustices and abuse persist. But as the following illustrates, there are solutions.
On January 27, 2004, 15-year-old Shawn Khalifa guarded the back door of his 77-year-old neighbor’s house while two older teens broke in to look for cash. Khalifa snuck into the kitchen to steal some chocolate candy. He saw that his neighbor, Hubert Love, was seriously hurt, and the neighbor unfortunately eventually died. Khalifa ran back outside. Even though he had nothing to do with Love’s injuries or death, Khalifa was tried as an adult, and a jury convicted him of first-degree murder under California’s felony-murder law. He received a sentence of 25 years to life.
In 2018, California passed Senate Bill 1437 (“SB 1437”) that narrowed the state’s felony-murder doctrine. California State Senator Nancy Skinner said she introduced the legislation, in part, because felony-murder cases disproportionately affect women and young minorities. Unfortunately, California does not track how many people are imprisoned under a felony-murder conviction because those convictions are counted together with other capital convictions. But one study found that more than 70 percent out of 1,000 women surveyed for having been convicted of homicide did not commit the actual murder. And the accomplice liability disproportionately affects teens and young men because they tend to commit offenses in groups. “They had bad judgment, but they didn’t commit murder,” Skinner said. “And when I understood this, I knew we had to fix that.”
The new law limits felony murder to only those defendants who actually killed, intended to kill, or acted as a major participant with reckless indifference to human life. Prosecutors’ opposition to the law was as predictable as their arguments. “The deterrence value [of the former felony-murder statute] is people are discouraged from participating in serious, dangerous felonies,” said Sean Hoffman, legislative director for the California District Attorneys Association in his opposition testimony.
Eric Siddall, a prosecutor and vice president of the Association for Deputy District Attorneys for Los Angeles County, complained “[t]he way the legislation is written, it gives everyone a path out, and only penalizes the actual shooter.”
Most significantly, SB 1437 is retroactive. On February 5, 2020, Khalifa was released after being resentenced under the new law. He said he plans to finish the college degree he started in prison and desires to become a journalist or a counselor for incarcerated youth.
Guyora Binder, a professor at the University of Buffalo School of Law and a leading expert on felony murder, perceives California’s legislation as a model for other states. The law doesn’t undo felony murder entirely, but it excludes from liability the people who have very little involvement in the underlying crime and had no intent to kill.
There is legislation pending in Illinois to amend that state’s felony-murder statute. Illinois currently has what is, perhaps, the broadest felony-murder statute anywhere. The state prosecutes under the proximate cause theory combined with accomplice liability. If any person is killed by any person during the commission of any one of the 14 enumerated felonies then all of the criminal actors involved in the underlying felony may be convicted of first-degree murder. This also applies during the commission of any other felony that involved the use or threat of physical force or violence against any individual. The penalty upon conviction may be from 20 to 60 years in prison and can be extended to a term of natural life.
Under proposed House Bill 1615 (“HB 1615”), individuals who did not personally inflict an injury during the course of the underlying felony cannot be charged or found guilty of first-degree murder. “What it does is it makes the felony-murder rule more narrow, where the system is looking at holding accountable the individual or group that actually commits the murder,” said Representative Justin Slaughter who introduced the legislation.
Supporters point to the recent case of the “Lake County Five” as an example of why HB 1615 must pass. In August 2019, six teenagers decided to steal a car from the driveway of a 75-year-old man in Lake County, Illinois. The man fired shots and killed one of the would-be thieves – 14-year-old Jaquan Swopes. The remaining five teens – all friends or family of Swopes – were charged with first-degree murder for his death. It was only after the outcry of the community and unrelenting media attention that State’s Attorney Michael Nerheim – up for reelection – was forced to reconsider. Nerheim dropped the murder charges. Eighteen-year-old Diamond Davis – the oldest of the defendants – pleaded guilty and was sentenced to one year on charges of conspiracy to commit burglary and criminal trespass to a motor vehicle. Her 16- and 17-year-old codefendants were transferred to juvenile court.
Colorado also had legislation introduced last year to amend the state’s felony-murder statute. Under current law, felony murder is a class 1 felony whenever a person commits or attempts to commit certain enumerated felonies and there is a death of a person (other than one of the accomplices) caused by anyone. The amendment requires the death to be caused by one of the accomplices and lowers the crime to a class 2 felony. There are also provisions for enhanced sentences if the court finds particular aggravating circumstances. Unfortunately, the bill died before it was passed.
Conclusion
FELONY + UNINTENTIONAL KILLING = MURDER: The felony-murder rule. It was not handed down to us from the common law as a doctrine that was the product of a long line of thoughtful, well-reasoned court decisions. It is not part of the foundation of our justice system. The Rule may even be the result of a mistake. And no evidence of a deterrent effect supports the Rule’s continued use.
But felony murder does trample a bedrock principle of our sense of justice: mens rea. It permits the most severe of punishments en mass without regard for individual culpability. The felony-murder rule often leads to unjust results and will continue to do so unless appropriately amended.
It seems there is a place for a modified felony-murder rule in our jurisprudence. If Bonny kills anyone during a robbery, she should be held accountable. But one problem with our felony-murder rule is that if Clyde’s brother Buck lent Bonny a dollar for gas to go rob the store, he could be convicted of murder, too. That result offends our sense of justice based on culpability and proportionality.
Perhaps California’s current felony-murder statute is a model for all jurisdictions. It definitely proves that felony-murder statutes can be amended to align them with just principles.
In addition to the arguments raised by the learned professors, there’s one more to add. As explained earlier, not all homicides are criminal offenses. If police shoot and kill a lone armed robber, there are no criminal charges. There is no murder. It is said that the officer did his duty, and it is usually termed “justifiable homicide” or “excusable homicide.” But if police kill the robber in the presence of accomplices, the felony-murder rule “magically” transforms justifiable homicide into murder, and the accomplices are charged. Rationally, there can be no murder because the homicide was still justifiable. This is equally true when a store clerk kills an armed robber in self-defense.
The National Institute of Justice and others keep meticulous records of injured police. We know how many police are killed or injured each year; the day of the week and the time of day of each incident; the location of each incident; the type of weapon used; even the type of clothing the officer was wearing, and numerous other details. But no agency tracks how many people are executed based on felony murder, and we don’t know how many people are imprisoned as a result of a felony-murder conviction. Politicians hide America’s dirty little secrets, and this must stop.
The fight for justice is ongoing. The word itself has many definitions and subtle shades of meaning. When a scared driver flees from police after being pulled over for a minor traffic infraction and the pursuing officer accidentally kills another officer, there is anguish. There is humiliation, there is grievous loss, there is reckless endangerment, and there is involuntary manslaughter. But, is there even a semblance of justice in calling it murder?
Justice includes assessing the action, but more importantly, it also requires assessing the culpability of the actor. It includes assigning appropriate blame. Lady Justice holds scales, not a noose.
Additional sources: “Know More: Felony Murder,” restore justice.org; Leonard Birdsong, “A Long Discourse on the Concept of Felony Murder in the United States,” birdsonglaw.com; “The Felony Murder Rule as a Representation of What’s Wrong in Our Criminal Legal System,” theappeal.org; “Changes to Felony Murder,” leg.colorado.gov; “Common-Law Felony Murder Doctrine Judicially Abolished in Michigan: People v. Aaron, 299 N.W.2d 304 (1980),” 60 Wash. U. L. Q. 1197 (1982); “SJC Ruling Narrows Massachusetts (sic) Definition of Felony Murder,” mass live.com; “Executed But Did Not Directly Kill Victim,” deathpenaltyinfo.org.; “When the State Kills Those Who Didn’t Kill,” aclu.org; “Case in Point,” themarshallproject.org.; Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403 (2011); Kevin Bliss, “Felony Murder Charges Should not be Used on Juveniles,” Prison Legal News (Jan. 2020).
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
