Felony Murder: A Legal Doctrine Under Scrutiny
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Usually, a defendant can be convicted of murder only if they have killed someone intentionally, or aided and abetted a killer deliberately. However, under the felony murder rule, which applies in more than 40 U.S. states, a person can be found guilty of murder if they participate in any felony that leads to a death. The doctrine originated with British common law, but it has not been used in England, or in many nations besides the United States, since 1957 (Baezelon, 2021). In some states, the felony murder rule makes criminals responsible for murder if their co-conspirator in a lesser felony, or even a responding police officer, kills someone while the crime is taking place. Some of the people convicted for felony murder did not intend for the killing to take place, or did not know it was happening. For example, at 15 years old, Shawn Khalifa acted as lookout for an attempted burglary of a house in Perris, California in 2004, and he discovered that his co-conspirators had killed the homeowner. He was sentenced to 25 years to life for first-degree murder (VanSickle, 2018).
Murder case records are not classified according to whether the felony murder rule was applied, which makes it difficult to track which demographics the doctrine affects most heavily. However, it seems to be applied unevenly across societal groups; for instance, it disproportionately affects women (VanSickle, 2018). A study conducted in California by several criminal justice reform groups showed that 72% of women convicted for felony murder were not the direct agents of the deaths in their cases (VanSickle). Colby Lenz, speaking for an advocacy group called the California Coalition for Women Prisoners, stated that “The majority of incarcerated women we work with who were sentenced under the felony murder rule were accomplices navigating intimate partner violence and were criminalized for survival acts” (qtd. in Mallick and Chatfield, 2018).
The doctrine also tends to affect Black and Latinx Americans the most (VanSickle, 2018). In Cook County, Ill., which includes Chicago and is one of the only U.S. counties whose data on felony murder has been studied in detail, 81.3% of people convicted of felony murder since 2011 have been Black, while 75.4% of those convicted for homicide overall in Cook County since 2011 were Black (Albrecht, 2020; Cook County, 2021). This higher proportion of felony murder convictions for Black residents comes in a context of overpolicing of Black and Latinx neighborhoods and individuals. In a 2020 study of the Chicago area, Black and Latinx residents reported more negative interactions with police, such as being stopped and questioned while walking or being fined for a non-criminal violation, than white residents did (Ramanathan).
Additionally, felony murder affects juvenile offenders more than adults, since adolescent criminals are more likely in general to have accomplices, and the rule punishes people whose co-conspirators in a felony have killed someone (VanSickle, 2018). According to a report by the Department of Justice, for violent crimes in the United States, juveniles make up 23% of all solo offenders but 40% of co-offenders, likely because they are more susceptible to peer influence (United States, Department of Justice, 2005). Young people’s behavior and habits are flexible; severe punishment for juvenile offenders, especially those who commit crimes under peer influence rather than through individual will, may stifle their potential to be guided and grow in a positive direction.
The fact that the felony murder rule is applied more to certain groups is not the only reason it has drawn criticism. Another critique is that murder cases are usually based on the defendant’s agency—that is, directly killing another person—and their intent to do so. The felony murder doctrine allows deaths that would usually be classified as manslaughter to be charged as murder, if the perpetrator committed another felony at the same time. Evidence shows that many felony murder convictions are not based on agency.
Kentucky, Hawaii, Massachusetts, and Michigan have ended the doctrine’s use, and in 2018, the state legislature of California passed a law that narrowed its application. The bill, SB1437, was introduced by Senator Nancy Skinner of Berkeley. It stated that a person could be charged for felony murder only if they were the direct agent of a death or intentionally helped a killer (Baezelon, 2021). The change applies retroactively, so it has prompted many inmates in California to request review of their cases. For instance, Anissa Jordan was charged with murder in 2006 after standing near Greshinal Green as he robbed one man, and then waiting in the car as he robbed and unexpectedly shot another victim later that night. She was initially sentenced to 27 years to life for felony murder, but she was resentenced in 2019 to only five years for robbery under SB1437. She was quickly released, having served 13 years in prison (Baezelon, 2021).
This process of review and resentencing has posed a few logistical challenges. Because case files do not record the use of the felony murder rule, many cases are eligible for reexamination. Transporting prisoners and reviewing cases have been somewhat expensive, but Skinner predicts that savings on prisoner care will outweigh these costs (VanSickle, 2018). It’s also unclear how district attorneys will address the cases of people who pleaded guilty to lesser offenses under threat of felony murder charges (Stephens, 2019).
Some legal scholars object to the tightening of the law’s scope. When SB1437 was under consideration, Eric Siddal, vice president of the Association of Deputy District Attorneys for Los Angeles County, said he believed the law would make it more difficult to prosecute gang cases. He stated that “The way the legislation is written, it gives everyone a path out, and only penalizes the actual shooter.” Other critics believe the felony murder rule deters criminals from putting others in danger by committing violent crimes in the first place (VanSickle, 2018). However, a study of homicide data in the United States by law professor Anup Malani calls this effect into question. The study found that counties where the felony murder rule is in use do not have lower felony rates or less dangerous felonies (that is, fewer deaths per felony committed) than counties where it is not applied (2007).
The felony murder rule is also an idiosyncratic aspect of the justice system. Felony murder charges are particularly unlikely to stick. In Cook County, since 2011, 59% of these charges were dropped at disposition, and 88% of felony murder charges did not last through the court process. As mentioned before, it’s likely that prosecutors sometimes use these charges as leverage to gain guilty pleas to another crime (Albrecht, 2020).
In addition, felony murder charges present a distinctive challenge to jurors, who must decide whether a defendant should have foreseen the death that resulted from a felony. Hindsight bias may play a role in the verdicts returned, according to a 2013 study where participants were asked to read a vignette about a robbery committed by two conspirators. The story was modeled on a real incident, where the victim ended up killing one of the conspirators and the other was charged for felony murder, since the crime led to the death. One group received a version with an additional paragraph at the end, which revealed that the death had occurred. Participants were asked to estimate the chance, given the circumstances at the outset of the robbery, that someone would be killed. Those who knew the story’s outcome responded with a higher likelihood than those who were not told (Evolo and Greene). Jurors have the benefit of hindsight, so it’s challenging for them to judge whether a defendant should have shown better foresight.
Although the felony murder doctrine can make it possible to charge people for disregarding human life while committing a felony, it can also lead to overly harsh justice outcomes. The narrowing of its scope, accomplished by California’s SB1437, is likely to make sentences more logical. It will also make defendants less responsible for deaths that occur by chance during crimes and align homicide verdicts more closely with the principles of agency and intent that usually guide justice.
Works Cited:
Albrecht, Kat. “Data Transparency & The Disparate Impact of the Felony Murder Rule.” Duke Center for Firearms Law, 11 August 2020, https://firearmslaw.duke.edu/2020/08/data-transparency-the-disparate-impact-of-the-felony-murder-rule/.
Baezelon, Lara. “Anissa Jordan Took Part in a Robbery. She Went to Prison for Murder.” The Atlantic, 16 February 2021, https://www.theatlantic.com/politics/archive/2021/02/what-makes-a-murderer/617819/.
Cook County Government. “Open Data.” Cook County Government, 2021, https://datacatalog.cookcountyil.gov/browse?tags=state%27s+attorney+case-level&sortBy=most_accessed.
Edmond, Tania Vargos. “Jackie Lacey must stop standing in the way of justice reform.” Los Angeles Daily News, 17 June 2019, https://www.dailynews.com/2019/06/17/jackie-lacey-must-stop-standing-in-the-way-of-justice-reform/?fbclid=IwAR3so4_17eW0-DH9Ge7qTChEzqna6XPiK3Lwmvs_7NbOVP0IB9s-EElqQ5c.
Evolo, Andrew J. and Edie Greene. “Judgments about Felony‐Murder in Hindsight.” Applied Cognitive Psychology, 15 January 2013, https://doi.org/10.1002/acp.2903.
Malani, Anup. “Does the Felony Murder Rule Deter? Evidence from FBI Crime Data.” New York Times, 3 December 2007 (Working Paper). PDF File. www.nytimes.com/packages/pdf/national/malani.pdf.
Mallick, Alexandra and Kate Chatfield. “California Accomplices to a Felony Shouldn’t Be Sentenced Like the One Who Committed the Murder.” Juvenile Justice Information Exchange, 8 August 2018, https://jjie.org/2018/08/08/accomplices-to-a-felony-shouldnt-be-sentenced-like-the-murderer-in-california/.
Ramanathan, Kumar. “The Racial Divide in Chicagoland’s Experiences of Policing.” Northwestern University Political Science Department, Chicago Democracy Project, 22 June 2020, https://sites.northwestern.edu/chicagodemocracy/2020/06/22/race-policing-chicagoland/.
Stephens, Alain. “New Murder Accomplice Law Expected To Face Legal Challenge By San Diego DA.” KPBS, 7 January 2019, https://www.kpbs.org/news/2019/jan/07/new-murder-accomplice-law-expected-face-legal-chal/.
———, Department of Justice, Office of Justice Programs. “CoOffending and Patterns of Juvenile Crime.” National Institute of Justice, December 2005, https://www.ojp.gov/pdffiles1/nij/210360.pdf.
VanSickle, Abbie. “If He Didn’t Kill Anyone, Why Is It Murder?” The New York Times, 27 June 2018. https://www.nytimes.com/2018/06/27/us/california-felony-murder.html.