The “Felony Murder” Doctrine and Graham v. Florida

“What about other terribly long—but not lifelong—prison terms for teenagers? Or even for adults? Kennedy doesn't go here, of course. But he doesn't foreclose it, either. Terrance Graham, he writes, deserved to be in prison for some time, "but it does not follow that he would be a risk to society for the rest of his life." It's a line that will resonate for a lot of criminals who say they've rehabilitated themselves.”
—Emily Bazelon, "They're Just Kids: The Supreme Court rules that juveniles can't be sentenced to life without parole”, Slate, discussing yesterday’s Supreme Court opinion in Graham v. Florida.

How to explain the “felony murder” doctrine? Use the term “felony murder” and people look at you quizzically. Aren’t all murders felonies? Well, yes. But the term “felony murder” actually is a legal term of art that turns certain unintentional manslaughters into first-degree murders. In other words, the law treats these unintentional manslaughters in the same manner as the law treats premeditated murder. Wikipedia explains:

“The rule of felony murder is a legal doctrine in some … jurisdictions that broadens the crime of murder in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony, what might have been manslaughter is escalated to murder. Second, it makes any participant in such a felony criminally liable for any deaths that occur during or in furtherance of that felony. While there is some debate about the original scope of the rule, modern interpretations typically require that the felony be an inherently dangerous one, or one committed in an obviously dangerous manner. For this reason, the felony murder rule is often justified by its supporters as a means of deterring dangerous felonies.”

So if, for example, you try to commit an unarmed robbery of a convenience store, and the store clerk reacts by reaching for a gun and trying to shoot you, but misses and instead shoots and kills a store patron, you will be charged with “felony murder” because the accidental death occurred during the course of, and as a result of, your attempt to rob the convenience store. In some states—my own, for example—the mandatory sentence if convicted is the same as the mandatory sentence for premeditated murder: life without possibility of parole.

The stated justification for this rule—deterring dangerous felonies—is, of course, a laudable one. But because virtually no one who doesn’t have a law degree knows of the rule, its actual deterrent effect surely is nil. And because it treats these acts death far more harshly than acts that result in second-degree murder or voluntary manslaughter charges, they make no sense whatsoever; these statutes are utterly arbitrary, and the punishment in many such cases surely cruel and unusual.

They do, however, result in life sentences for some quite young men who surely have as much potential for rehabilitation as people given far lesser sentences for crimes of intent to cause much more serious harm.

So I expect that, given some of the language in Kennedy’s majority opinion in Graham v. Florida, “felony murder” statutes, as currently written, will be challenged as unconstitutional under the Eighth Amendment. I think they should be challenged, and I hope the challenge is successful.

(Disclosure: For the last year-and-a-half or so, I’ve been assisting, pro bono, a pro se federal habeas corpus petitioner, albeit without actually representing him in court, who was sentenced by a Michigan state court to life without chance for parole under Michigan’s felony-murder statute. He is arguing that there is virtually no evidence that the shooting occurred during an attempted larceny, as was alleged, and extensive evidence that there was no attempted larceny. I do not practice law, but was asked to assist the petitioner in this case, and obliged.)