The felony-murder rule is a problematic anomaly in American law. The rule imposes convictions for murder—often first-degree murder—on individuals who neither killed nor intended for someone to die. Such individuals are consequently punished with extreme prison sentences, up to and including life without the possibility of parole.

In addition to imposing harsh punishments on individuals who lack the guilty mind required by other homicide laws, these extreme sentences contribute to the problem of mass incarceration. This burden is also not borne equally. The felony-murder rule has a discriminatory impact on people of color, teens and young adults, and women.

It should come as no surprise, then, that there is a near-unanimous consensus among legal scholars—and among the legislatures of other nations—that the felony-murder rule cannot be morally justified. What is surprising, in light of these criticisms, is that felony murder remains the law in all but three U.S. jurisdictions.

This Article presents the findings from two original empirical studies that bolster the argument for abolition. The studies involved asking residents of Colorado and Maryland, respectively, about their knowledge of and moral attitudes towards examples of felony murder. The results were striking. The vast majority of study participants were unaware of felony murder and the sentences associated with it. More importantly, almost all study participants reported that both a first-degree murder conviction and a life sentence were morally unjustified for the examples of felony murder presented to them. Perhaps most importantly, most survey participants in both states believed the morally appropriate punishment was less than six years in prison—less than the punishment that would apply even if the felony-murder rule was abolished.

These findings support abolishing felony murder in two ways. First, the findings undercut both the retributivist and deterrence arguments made by the minority of scholars who defend felony murder. Second, they demonstrate to legislators that abolishing felony murder would reflect the moral judgments of their constituents across the political spectrum.

Continue reading Abolishing Felony Murder: An Empirical Perspective