Felony Murder

Does felony plus murder equal felony murder? It's a little more complicated than that.

Updated May 13, 2022

Felony murder is a legal rule that expands the definition of murder. It applies when someone commits a certain kind of felony and someone else dies in the course of it. It doesn't matter whether the death was intentional or accidental—the defendant is liable for it. The rule is usually limited to felonies that are inherently or foreseeably dangerous to human life, such as arson, rape, robbery, and burglary.

What Is Felony Murder?

Unlike most murder charges, felony murder doesn't require the intent to kill, only:

  • the intent to commit the underlying felony (the "predicate felony"), and
  • that someone died as a result of the felony.

If more than one person participates in the felony, all involved are equally responsible, even those who didn't cause the death. In some cases, even those who weren't present when the death occurred are responsible.

Example: Three people agree to burglarize a home; Al and Bill go inside while Carl acts as a lookout. When the homeowner discovers the burglars, Bill shoots and kills him. All three are guilty of felony murder, even if Al and Carl didn't know Bill was armed, and even though Carl was outside the entire time. (Bill is probably also guilty of old-fashioned first- or second-degree murder—either way, a judge would probably give him the harshest sentence.)

Broad Reach of Felony Murder

Depending on the state, the felony-murder doctrine can reach very broadly. It can apply to defendants when:

  • a police officer or bystander causes the death
  • the death occurs during a defendant's escape or attempted escape, or
  • the person who dies is an accomplice.

Because intent isn't an element of felony murder, some defenses available in regular murder cases, such as self-defense, may not be allowed in felony-murder cases.

The felony-murder rule is widely criticized because it can lead to murder charges for people with little or no involvement in the death—for example, someone who simply drove the getaway car. Many Western countries have abolished the doctrine. There are also a number of online petitions to abolish it in the United States. In addition, many states have limited the rule's application, either by statute or court decision, to prevent unfair and absurd results.

What Is the Independent Felony Requirement?

Most states require that the predicate (underlying) felony have a purpose that's independent of the killing. In other words, it must be an "independent" felony. If it isn't, the crimes "merge"—meaning that the defendant can be convicted of and sentenced for only the greater offense.

Merger is a complex issue, but it generally describes a situation where the felony is inextricable from the homicide. For example, every homicide involves an assault; a homicide is in some sense an assault that results in death. So, a felony assault that kills someone typically won't qualify as felony murder. The assault "merges" into felony murder. Instead of a felony-murder conviction, a defendant in this situation would face a regular homicide conviction (perhaps first- or second-degree murder or voluntary manslaughter).

Another way of putting it is this: The predicate felony must be separate from the act that proximately causes the death. So, where assault—the predicate felony—causes death, it will almost never qualify as the basis for a felony-murder conviction.

On the other hand, a felony like robbery can be the basis of a felony-murder conviction. By proving that the defendant robbed the victim, the prosecution hasn't proved an element of regular murder or manslaughter. The robbery is separate from the act that causes death. So, if Dan kills Victor in the course of a robbery, a felony murder may have occurred. The purpose of robbery isn't to kill but rather to acquire property. Robbery is ultimately distinct from murder and manslaughter in a way that assault isn't.

Capital Punishment and Felony Murder

The U.S. Supreme Court originally held that the Eighth Amendment prohibits the death penalty for felony murder if the defendant was only a minor participant and didn't kill, attempt to kill, or intend that a killing or use of lethal force occur. But it later ruled that capital punishment was available if the defendant was a major participant in the underlying felony and acted with "reckless indifference to human life." (Tison v. Arizona, 481 U.S. 137 (1987).)

Note that states are free to interpret their own constitutions to afford greater protections to defendants—that means that "reckless indifference" might not be enough for the death penalty in some states. (For example, see Vernon Kills On Top v. State, 279 Mont. 384 (1996).)

Federal Law and Felony Murder

Federal law classifies felony murder as first-degree murder. It lists the felonies that can form the basis for a felony-murder charge in a prosecution by the U.S. government. They include arson, escape, murder, kidnapping, treason, espionage, sabotage, sexual abuse, child abuse, burglary, and robbery. (18 U.S.C. § 1111(a) (2021).)

State Laws and Felony Murder

A few states have abolished felony murder, but most still have some sort of variation of it on the books. The rule's application and the penalties vary from state to state.

In some states, felony murder is included in the definition of first-degree murder. In others, it's a less serious offense, typically second-degree murder. In a few, it can be either first- or second-degree murder.

Several factors determine how states apply the felony-murder rule.

Predicate Felonies

Just as the federal government does, states determine which crimes qualify as predicate felonies. Most states and the federal government say that mere attempts to commit qualifying felonies can trigger the felony-murder rule.

Some state courts have held that, in order to determine whether a felony is inherently dangerous so as to qualify for felony murder, both the nature of the crime and the circumstances around it in the case at hand are relevant. Other courts have said that you look only at the felony in the abstract, without considering the facts.

Death Occurs at the Time of Felony or During Flight

Some states limit the felony-murder rule to situations where death occurs during the underlying felony. Others include deaths that occur during flight from the crime.

Accomplices and Others

Every state that has the felony-murder rule imposes liability for deaths caused by an accomplice, rather than the defendant. Some states go further and include deaths caused by non-participants in the crime, such as police officers. A few states say that felony murder applies where an accomplice dies—for example, the robber whose accomplice is shot and killed during the heist.

Most states follow the "agency" approach. Under it, felony murder applies only if the defendant or his "agent" (accomplice) is responsible for the death. Some states use the "proximate cause" approach, which allows for felony murder when any death occurs as a result of the felony—even one caused by a victim, bystander, or police officer.

Causation of Death

All states require that the underlying felony be the "but for" cause of the death. So, if Ralph died as a result of Joe robbing Tom, one might say, "But for Joe having robbed Tom, Ralph wouldn't have died." But many states require more—that the felony be an immediate cause of the death.

Talk to a Lawyer

Felony murder is a controversial, complicated topic. Plus, the law can vary greatly from one place to the next. An experienced criminal defense attorney in your state will be best able to advise you of the applicable law. And you should always consult an experienced attorney if you face criminal charges.

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