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Report

Felony Murder: An On-Ramp for Extreme Sentencing

Felony murder laws compel harsh decades-long–or even life–sentences even when the person charged did not directly cause or intend the loss of life.

Related to: Sentencing Reform

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Executive Summary

In San Joaquin County, California in 2010, 19-year-old Emmanuel Mendoza helped lure a robbery victim to a location where a masked accomplice waited with a firearm. When a struggle with the victim over the firearm ensued, Mendoza’s accomplice fired a fatal shot. Although Mendoza did not have a weapon and the killing had not been planned, he was convicted of felony murder with special circumstances, and automatically sentenced to life without parole (LWOP).1 In prison, he ended his gang affiliation and mentored others to do the same, earned a GED and associate degree, embraced his faith, and has been an active father to his three children. “I understand that at the end of the day someone lost their life,” Mendoza says. “Our plan that night wasn’t to kill anyone. I can’t take it back. But I also feel that it was a huge injustice to not be given an attempt at freedom.”2

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.3 These laws run counter to public safety, fiscal responsibility, and justice.

Although other countries have largely rejected the felony murder doctrine,4 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. Seven other states require some proof of intentionality regarding the killing to consider it murder,5 though the use of a gun—or mere knowledge of a co-defendant’s gun use—satisfies this requirement in some jurisdictions.6 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.

Key Findings

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.7
  • In Pennsylvania and Michigan, one quarter of people serving LWOP were convicted of felony murder—over 1,000 people in each state.8
  • 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 pose no 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.9
  • 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.10
  • 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.11 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.12

3. Existing reforms must be expanded to achieve justice.

  • Since 1980, Michigan has required a minimum culpable mental state of wanton disregard for life for felony murder convictions. Despite this reform, the number of Michiganders imprisoned for felony murder is comparable to that of Pennsylvania, where no such requirement exists.
  • Reforms in Colorado, Illinois, and Massachusetts have not been applied retroactively to provide relief to people sentenced under the old law.

The Sentencing Project and Fair and Just Prosecution recommend that all U.S. jurisdictions repeal felony murder statutes. In the interim, reforms to felony murder laws should at a minimum 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. Prosecutors can be leaders in these reform efforts. The model policy memo included in Appendix 1 sets forth recommended changes prosecutors can put in place to address these concerns and achieve just results.

Click here to read the full report.

1.

People v. Mendoza, No. C089455 (Cal. Ct. App. Nov. 1, 2021).

2.

E. Mendoza (personal communication, March 1-2, 2022).

3.

Nellis, A. (2021a). No end in sight: America’s enduring reliance on life imprisonment. The Sentencing Project. https://www.sentencingproject.org/publications/no-end-in-sight-americas-enduring-reliance-on-life-imprisonment/; Fair and Just Prosecution. (2020). Revisiting past extreme sentences: Sentencing review and second chances. https://www.fairandjustprosecution.org/staging/wp-content/uploads/2020/02/FJP_Issue-Brief_SentencingReview.pdf

4.

See Section II.

5.

These states have a mens rea requirement for felony murder, the Latin term for “guilty mind.” Most felony murder laws can be characterized as “strict liability,” with no mens rea requirement for the killing. In contrast, most criminal laws require not only evidence of a criminal act, but also of a blameworthy mental state, typically ranging from negligent to purposeful. This report uses the terms intentionality and culpable mental state interchangeably with mens rea, which is also related to the concept of malice.

6.

Jurisdictions with a mens rea requirement related to the killing in a felony murder charge are: Delaware (recklessness for first degree murder or criminal negligence for second), Massachusetts (intent to kill or inflict great bodily harm, or to commit a crime in in circumstances that could reasonably have been known to create a strong likelihood of death), Michigan (at minimum, wanton and willful disregard of the likeliness of death or great bodily harm), New Hampshire (recklessness under circumstances manifesting extreme indifference to human life, which is presumed if the defendant causes death by the use of a deadly weapon while committing or attempting to commit a class A felony), New Mexico (intent to kill or knowledge of the strong probability of death or great bodily harm), North Dakota (at minimum, recklessness), and Vermont (intent to kill or inflict great bodily harm, or wanton disregard for human life). In addition, California has a mens rea requirement for accomplices, as described on pp. 24-25. Arkansas’s felony murder law requires “extreme indifference to the value of human life” but the courts have described this as a requirement not of the defendant’s mental state, but of the circumstances that they set in motion. 11 DE Code § 635(b) (2021); 11 DE Code § 635(a)(2) (2021); State v. Glenn, 107 A. 3d 651, 644-55 (N.H. 2014); Commonwealth v. Brown, 811 N.E. 3d 1173 (Mass. 2017); People v. Aaron, 299 N.W. 2d 304, 329 (Mich. 1980); N.H. Rev. State. Ann. § 630:1 (West 2021); State v. Griffin, 866 P.2d 1156, 1162 (N.M. 1993) & State v. O’Kelly, 84 P. 3d 88, 94-95 (N.M. 2003); N.D. Statutes 12,1-02-02, 12.1-16-01(1)(c); N.D. Crim. Instr. (2019) k-6.03; State v. Baird, 175 A. 3d 493, 496 (V.T. 2017); ARK. CODE ANN. § 5-10-102 & Jefferson v. State, 276 S.W.3d 214, 223 (Ark. 2008).

7.

For details see Figure 1 and Appendix 2.

8.

Lindsay, A. (2021). Life without parole for second-degree murder in Pennsylvania. Philadelphia Lawyers for Social Equity. https://www.plsephilly.org/wp-content/uploads/2021/01/PLSE-Second-Degree-Murder-Audit-Jan-19-2021.pdf; Whitmer, G., & Washington, H. (2021). Michigan Department of Corrections 2019 statistical report. Michigan Department of Corrections. https://www.michigan.gov/documents/corrections/MDOC_2019_Statistical_Report_717026_7.pdf; Nellis (2021a), see note 3.

9.

Lindsay (2021), see note 8.

10.

Lindsay (2021), see note 8; Turner, L. (2022). Task force on aiding and abetting felony murder: Report to the Minnesota Legislature. Minnesota Department of Corrections. https://mn.gov/doc/assets/AAFM-LegislativeReport_2-1-22_tcm1089-517039.pdf

11.

C. Chapin (personal communication, December 3, 2021). See also Mallick, A., & Chatfield, K. (2018, August 8). California accomplices to a felony shouldn’t be sentenced like the one who committed the murder. Juvenile Justice Information Exchange. https://jjie.org/2018/08/08/accomplices-to-a-felony-shouldnt-be-sentenced-like-the-murderer-in-california/

12.

C. Lenz (personal communication, November 30, 2021).

People v. Mendoza, No. C089455 (Cal. Ct. App. Nov. 1, 2021).
E. Mendoza (personal communication, March 1-2, 2022).
Nellis, A. (2021a). No end in sight: America’s enduring reliance on life imprisonment. The Sentencing Project. https://www.sentencingproject.org/publications/no-end-in-sight-americas-enduring-reliance-on-life-imprisonment/; Fair and Just Prosecution. (2020). Revisiting past extreme sentences: Sentencing review and second chances. https://www.fairandjustprosecution.org/staging/wp-content/uploads/2020/02/FJP_Issue-Brief_SentencingReview.pdf
See Section II.
These states have a mens rea requirement for felony murder, the Latin term for “guilty mind.” Most felony murder laws can be characterized as “strict liability,” with no mens rea requirement for the killing. In contrast, most criminal laws require not only evidence of a criminal act, but also of a blameworthy mental state, typically ranging from negligent to purposeful. This report uses the terms intentionality and culpable mental state interchangeably with mens rea, which is also related to the concept of malice.
Jurisdictions with a mens rea requirement related to the killing in a felony murder charge are: Delaware (recklessness for first degree murder or criminal negligence for second), Massachusetts (intent to kill or inflict great bodily harm, or to commit a crime in in circumstances that could reasonably have been known to create a strong likelihood of death), Michigan (at minimum, wanton and willful disregard of the likeliness of death or great bodily harm), New Hampshire (recklessness under circumstances manifesting extreme indifference to human life, which is presumed if the defendant causes death by the use of a deadly weapon while committing or attempting to commit a class A felony), New Mexico (intent to kill or knowledge of the strong probability of death or great bodily harm), North Dakota (at minimum, recklessness), and Vermont (intent to kill or inflict great bodily harm, or wanton disregard for human life). In addition, California has a mens rea requirement for accomplices, as described on pp. 24-25. Arkansas’s felony murder law requires “extreme indifference to the value of human life” but the courts have described this as a requirement not of the defendant’s mental state, but of the circumstances that they set in motion. 11 DE Code § 635(b) (2021); 11 DE Code § 635(a)(2) (2021); State v. Glenn, 107 A. 3d 651, 644-55 (N.H. 2014); Commonwealth v. Brown, 811 N.E. 3d 1173 (Mass. 2017); People v. Aaron, 299 N.W. 2d 304, 329 (Mich. 1980); N.H. Rev. State. Ann. § 630:1 (West 2021); State v. Griffin, 866 P.2d 1156, 1162 (N.M. 1993) & State v. O’Kelly, 84 P. 3d 88, 94-95 (N.M. 2003); N.D. Statutes 12,1-02-02, 12.1-16-01(1)(c); N.D. Crim. Instr. (2019) k-6.03; State v. Baird, 175 A. 3d 493, 496 (V.T. 2017); ARK. CODE ANN. § 5-10-102 & Jefferson v. State, 276 S.W.3d 214, 223 (Ark. 2008).
For details see Figure 1 and Appendix 2.
Lindsay, A. (2021). Life without parole for second-degree murder in Pennsylvania. Philadelphia Lawyers for Social Equity. https://www.plsephilly.org/wp-content/uploads/2021/01/PLSE-Second-Degree-Murder-Audit-Jan-19-2021.pdf; Whitmer, G., & Washington, H. (2021). Michigan Department of Corrections 2019 statistical report. Michigan Department of Corrections. https://www.michigan.gov/documents/corrections/MDOC_2019_Statistical_Report_717026_7.pdf; Nellis (2021a), see note 3.
Lindsay (2021), see note 8.
Lindsay (2021), see note 8; Turner, L. (2022). Task force on aiding and abetting felony murder: Report to the Minnesota Legislature. Minnesota Department of Corrections. https://mn.gov/doc/assets/AAFM-LegislativeReport_2-1-22_tcm1089-517039.pdf
C. Chapin (personal communication, December 3, 2021). See also Mallick, A., & Chatfield, K. (2018, August 8). California accomplices to a felony shouldn’t be sentenced like the one who committed the murder. Juvenile Justice Information Exchange. https://jjie.org/2018/08/08/accomplices-to-a-felony-shouldnt-be-sentenced-like-the-murderer-in-california/
C. Lenz (personal communication, November 30, 2021).

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About the Authors

  • Nazgol Ghandnoosh, Ph.D.

    Senior Research Analyst

    Nazgol Ghandnoosh, Ph.D., conducts and synthesizes research on criminal justice policies. She has written about racial disparities in the justice system, public opinion about punishment, and the scope of reform efforts. 

    Read more about Nazgol
  • Emma Stammen

    Research Fellow

  • Connie Budaci

    Research Fellow

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