By Sunny Zhou and Vaiva Utaraite
WASHINGTON, DC – This past week, The Sentencing Project and Fair and Just Prosecution held a webinar and panel about reforming felony murder laws.
Felony murder 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,” stated Nazgol Ghandnoosh, Emma Stammen and Connie Budaci, authors of the Felony Murder: An On-Ramp for Extreme Sentencing report.
This type of conviction violates “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” added the authors.
“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,” the report noted.
Speaking about how the sentencing system does not account for an individual’s humanity and dignity, Represent Justice VP of Advocacy and Policy Marshall Allen said, “This is not fair, this is not just, and it is completely unnecessary. And more importantly, it doesn’t make our community safer.”
Most countries reject the felony murder doctrine, however “48 states, the District of Columbia, and the federal government still use these laws,” said the Ghandnoosh, Stammen and Budaci report.
Monica Fuhrmann, Director of Research and Outreach at Fair and Just Prosecution, commented, “We are an international outlier in our use of felony murder. The United States is the only country in the world that utilizes the felony murder rule. It originated in England, but they abolished it over 50 years ago and as have most of all countries since then. Internationally, there is recognition that it violates the principles of justice and proportionality. The lengthy sentences that are associated with them are often cruel and unusual.”
The report by Ghandnoosh, Stammen and Budaci added, “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.”
There were three key findings of this report. The first was, “Felony murder laws widen the net of extreme sentencing and are counterproductive to public safety,” given that these convictions carry a life without parole sentencing.
The second key finding was, “Felony murder laws have particularly adverse impacts on people of color, young people, and women.”
Ekow Yankah, a professor of law at the University of Michigan Law School, argued, “One of the ways we know that we don’t need a felony murder doctrine is because we don’t use it when it’s white people. The felony murder rule is dispositionally used when it’s aimed at black defendants. It’s disproportionately used to make murder the most serious charge that those defendants face because we couldn’t prosecute them under anything like that kind of seriousness if you were actually looking at the elements of the crime.”
“If we can live without it in the case of white defendants, then I am certain we can live without it in the case of sending young Black men away from the rest of their lives,” said Yankah.
The final key finding was, “Existing reforms must be expanded to achieve justice.” Reform programs in Massachusetts, Michigan, Illinois, and Colorado do not “provide relief to people sentenced under the old law,” said the Ghandnoosh, Stammen and Budaci report.
Fair and Just Prosecution, along with The Sentencing Project, suggested reforms for felony murder laws should include “eliminating death and LWOP as sentencing options; protecting minors and emerging adults from the felony murder rule; ending accomplice liability; creating meaningful intent requirements for the killing itself; narrowing predicate offenses that can trigger a felony murder charge; and tackling racial disparities in enforcement.”
According to The Sentencing Project’s state survey, California mandates LWOP for some felony murder convictions. In 2019, California’s SB 1437 amended felony murder rules, preventing a person from being held liable as an accomplice to a felony offense in which death occurs, unless they were the actual killer, or with intent to kill, aided/abetted the actual killer.
SB 1437 also includes a liability exception for people who were “a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his/her duties where the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his/her duties.”
In “Police Killings as Felony Murder,” SUNY Buffalo Law School Prof. Guyora Binder and University of Michigan Law Prof. Ekow N. Yankah argue that though the felony murder rule was used to convict Officer Derek Chauvin for the murder of George Floyd, “further opportunities to prosecute police for felony murder are quite limited.”
Binder and Yankah find that a “substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police officer, not an ‘agent’ of the felony…felony murder is far more often used to prosecute the (often Black) targets of police violence, than to prosecute culpable police.”
Instead of traditional “agency” critiques of these proximate cause rules, Binder and Yankah offer a racial justice critique of these rules as “discriminatory in effect, and as unjustly shifting blame for reckless policing onto its victims.”
Legislators should “reimpose ‘agency’ limits on felony murder as a prophylactic against discrimination,” Binder and Yankah conclude, and “abolish felony murder wherever racially disparate patterns of charging can be demonstrated.”
