All but two U.S. states allow murder charges even if an individual did not directly cause or intend the loss of life
By Miriam Aroni Krinsky and Nazgol Ghandnoosh
This year marks 50 years since the United States embarked on a path of mass incarceration, an era that has led to a staggering increase in the nation’s prison population.
Today, almost 2 million people — disproportionately Black Americans — are incarcerated in U.S. prisons and jails. The prison population has grown almost 500% since 1973, and more than one in seven people in U.S. prisons is serving a life sentence. Moreover, while the U.S. represents just 4% of the global population, its prisons hold 40% of all individuals worldwide serving a life sentence.
What can account for this shocking increase in America’s prison population?
Over the past 50 years, lawmakers nationwide enacted several extreme sentencing policies that disregard the legal system’s efforts to advance proportionality, which means punishing crimes according to their level of harm and intent. Most notably, “felony murder” laws allow prosecutors to charge people with murder because they participated in a felony that resulted in someone being killed — even if the individual did not directly cause or intend the loss of life. All but two U.S. states have these statutes on the books.
Consider the case of Emmanuel Mendoza. In 2010, at age 19, Mendoza helped lure a robbery victim to a location where an accomplice waited with a firearm. Neither man planned to commit murder, but Mendoza’s accomplice fatally shot the victim during a struggle over the firearm.
While Mendoza did not have a weapon, intend to kill, or fire the fatal shot, he was convicted of felony murder because of the actions of his accomplice. As a result, California automatically sentenced him to life without parole.
Felony murder laws have adverse effects on people of color, young people and women.
The criminal legal system loses credibility when someone can be sentenced to life without parole for simply being in the same room as a person who took a life. It is in clear tension with how our legal system is supposed to work, where a criminal sentence is proportional to the moral weight of a crime and accounts for the actions of the individual.
Research also shows that felony murder laws don’t make us any safer. For example, a legal studies thesis from UC Berkeley found no significant or consistent correlation between felony murder laws and crime rates or crime-related deaths. Another study by a University of Chicago Law School professor found that the felony murder rule did not significantly reduce the number of deaths during a felony. And more generally, sentence severity has not proven to be an effective deterrent to crime.
At the same time, felony murder laws have adverse effects on people of color, young people and women. For example, in Pennsylvania in 2020, 80% of imprisoned people with a felony murder conviction were people of color and 70% were Black. Additionally, almost three-fourths of people serving life without parole for felony murder in 2019 in Pennsylvania were age 25 or younger at the time of their offense. So were more than half of Minnesotans charged with aiding and abetting felony murder in recent years.
Because felony murder laws impose identical sentences on individuals regardless of their role in the crime, they can produce especially unjust punishments for women who are coerced by intimate partners. An exploratory survey of people currently incarcerated in California found that 72% of women serving a life sentence for felony murder were not the perpetrators of the homicide, compared to 55% of men.
Moreover, the extreme, lengthy sentences that result from felony murder convictions continue to imprison people who have largely aged out of crime. Studies of recidivism rates in California, Michigan, and Maryland show that individuals serving extreme sentences can safely return to their communities.
Felony murder laws are a significant cost to taxpayers.
Not only are felony murder laws disproportionate, unjust and ineffective at reducing crime, they are a significant cost to taxpayers. A Pew Charitable Trusts analysis found that the median cost of prison health care spending per person was 37% higher in the 10 states with the highest share of incarcerated individuals 55 and older than in the 10 states with the lowest share of older individuals. General costs of incarceration for any individual average $46,000 annually, with some states spending well over $100,000 per person. Those funds could be much better spent on measures that actually reduce crime, such as providing access to high-quality public schools, mental health care and stable housing.
Other modern democracies, including the United Kingdom and Canada, have rejected the felony murder doctrine. In fact, life without parole sentences are prohibited for all murder convictions in 155 of 193 United Nations members. The U.S. is an outlier in its embrace of these harsh policies.
The solution: Going forward, elected state leaders can act to abolish the felony murder doctrine or limit its scope. For example, Colorado has repealed its mandatory life without parole sentence for felony murder, while Washington, D.C. lawmakers passed a bill (later blocked by Congress) that would have eliminated accomplice liability for felony murder. Lawmakers in Louisiana are considering ending life without parole for felony murder. But until legislators act, prosecutors can and should use their discretion and refrain from using felony murder laws to impose extreme, unjust sentences.
After 50 years of mass incarceration, it’s time for America to wake up and find a better path forward. Abolishing felony murder laws is the right place to start.
Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution, a former federal prosecutor, and the author of Change from Within: Reimagining the 21st-Century Prosecutor. Nazgol Ghandnoosh, Ph.D. is The Sentencing Project’s Co-Director of Research. For more on felony murder, read FJP and The Sentencing Project’s report Felony Murder: An On-Ramp for Extreme Sentencing and watch their recent webinar on the topic.
