State Supreme Courts May Abolish Life Without Parole For 'Felony Murder'

In 1983, California Chief Justice Rose Bird had harsh words for the so-called “felony murder rule,” a relic of English common law that allows people to be convicted of murder and face the most severe punishments even when there was no intent to kill. The concept is “barbaric,” “outdated,” and “unwise,” she wrote, and unfairly “erodes the relation between criminal liability and moral culpability.”

The California high court was deciding the fate of a 17-year-old high school student who had challenged his life-without-parole sentence. A few years earlier, the boy and some friends had set out to steal marijuana from nearby farmland. But when the farmer approached and shotgun blasts rang out, the boy panicked. Thinking the farmer “was getting ready to shoot me,” the boy shot wildly in the farmer’s direction, killing him. The boy was convicted of first-degree murder and sent to die in prison.

In the 40 years since, the felony murder rule, long-ago abolished in England but still alive in 48 states, has persisted as one of American criminal law’s cruelest features. Shattering norms of criminal liability, felony murder severely punishes people for deaths that they neither caused nor intended to cause, but that in some way flowed from their actions, with the connection often tenuous to the point of nonexistent.

In the California case, People v. Dillon, the person charged with murder had at least pulled the trigger. But the rule has grown far more expansive. A recent Pulitzer Prize-winning New Yorker article, for example, tells the story of a man who was miles away and handcuffed when his accomplice in some car burglaries accidentally struck and killed two cyclists as he fled from police. Yet the handcuffed man was convicted of murder and sentenced to mandatory life without parole. His obvious and undisputed distance from the killings — both geographically and with regard to his intent — reduced neither his charges nor, given its mandatory nature, his sentence.

In Dillon, the California Supreme Court did not dismantle felony murder or announce a general rule to limit its reach. But it did find that given the boy’s age, lack of intent to kill, and other factors, a life-without-parole sentence violated the state constitution’s ban on “cruel or unusual punishments.” A “punishment may violate the California constitution,” the court said, if it “is grossly disproportionate to the defendant’s individual culpability as shown by . . . his age, prior criminality, personal characteristics, and state of mind.” The case stands as an example of how state supreme courts, frustrated by an unjust felony murder rule that dispenses with the usual intent requirements of criminal law, can use state constitutional rights to mitigate its impact on a case-by-case basis.

But state courts can and should go further. They can do what the U.S. Supreme Court has failed to and recognize that imposing the harshest penalties under a “barbaric” felony murder theory is inherently excessive and unconstitutional. Indeed, imposing limits on felony murder is the logical next step in the growing trend of state courts expanding rights against excessive sentencing, particularly for people where evidence shows low culpability. Right now, there are three pending cases that present this issue, with state supreme courts in Colorado, Michigan, and Pennsylvania poised to make pivotal rulings. The outcome of these cases could impact thousands of people — Michigan and Pennsylvania in particular have among the nation’s largest populations of people serving life without parole, including more than 1,000 people each for felony murder convictions.

The extraordinary breadth of felony murder is seen in more examples from the New Yorker:

In Tulsa, two men attempted to steal some copper wire from a radio tower and accidentally electrocuted themselves. One of them died and the other was charged with first-degree murder while recovering from his burns in the hospital; the girlfriend of the deceased was also charged with murder, for having driven them to the tower. In Topeka, a twenty-two-year-old made the mistake of hiding his gun atop his girlfriend’s refrigerator; he was charged with first-degree murder several days later, when a child inadvertently fired it at a thirteen-year-old girl. In Minneapolis, a sixteen-year-old girl who sat in the car while two older men killed someone in a robbery was charged with felony murder.

Felony murder also compounds the devastation of police violence, allowing murder charges against bystanders when police kill. In Phoenix, police in 2019 shot and killed a teenager while he ran away, and then prosecutors charged the teenager’s friends with murder. The officer was not punished.

Even more than other facets of criminal law, the rule targets the vulnerable and historically marginalized, exacerbating already deep inequities in our criminal legal system. Felony murder yields massive racial disparities, and is often wielded against people who are suffering from addiction (such as if they share drugs with a friend who overdoses), survivors of domestic abuse (including when women are coerced into criminal conduct by abusive men), and young people (who are often punished for the conduct of adults and authority figures or their friends).

All these factors should make felony murder ripe for constitutional challenge.

Yet the rule’s absurdity extends to its resilience under federal law. The Eighth Amendment prohibits “cruel and unusual punishments,” and the U.S. Supreme Court has said that in theory, prison terms that are “grossly disproportionate” to the offense are unconstitutional. With its extreme punishments and disregard for personal culpability, felony murder would seem “grossly disproportionate” by definition.

To some extent, the U.S. Supreme Court has agreed. In a pair of cases from the 1980s, Enmund v. Florida and Tison v. Arizona, the Court banned death sentences for people convicted of felony murder who did not at least act with a “reckless indifference toward human life.” The Court in Enmund stressed that “punishment must be tailored to [a person’s] personal responsibility and moral guilt,” and that the Eighth Amendment forbids treating people who neither killed nor intended to kill with the same severity as those who do. Given that rationale, it’s hard to see why life without parole (or “death by incarceration”) sentences — now often the most severe sentence possible — would be treated differently.

But in 1991, Justice Anthony Kennedy summed up what has been the Court’s prevailing view: “The crime of felony murder without specific intent to kill [is] a crime for which no sentence of imprisonment would be disproportionate.”

However illogical, Kennedy’s comment is consistent with the Court’s general nonchalance toward incarceration. Reviewing prison terms for “gross disproportionately,” the Court has upheld decades in prison for stealing golf clubs, along with life in prison for stealing $230 and for possessing cocaine. As New York University law professor Rachel Barkow observed, the U.S. Supreme Court “has effectively taken the judiciary out of the business of checking the state when it seeks to impose outrageously long punishments.”

This federal failure heightens the urgency for state court intervention. State supreme courts are free to chart their own course under their state constitutions, and indeed recent years have seen state courts further limit punishments for youth and emerging adults under age 21, citing their immaturity and the reduced culpability that flows from it.

In the coming months, Colorado, Michigan, and Pennsylvania will decide if similar reasoning extends to cases that challenge life without parole sentences for felony murder.

In Pennsylvania, 70 percent of the more than 1,100 people serving life without parole for felony murder are Black. One of them, Derek Lee, has petitioned the Pennsylvania Supreme Court to rule that his mandatory life sentence violates the state constitution’s ban on “cruel” punishments. Lee argues that Pennsylvania’s constitution must be construed both independently from and more broadly than the Eighth Amendment, and that the complete disconnect between felony murder and any legitimate penological purpose renders his life sentence unconstitutional. In amicus briefings, his claim has unusually broad support from, among others, former prosecutors, the Philadelphia District Attorney’s Office, Pennsylvania Gov. Josh Shapiro, and former state Department of Corrections officials who argue that “life without parole sentences for felony murders are financially insensible” and that “many or even most lifers could be released without incident to their communities.”

Meanwhile, another man convicted of felony murder has made similar arguments to the Colorado Supreme Court, with one key addition. In 2018, when Wayne Sellers was convicted, state law mandated a life without parole sentence. But Colorado changed the law in 2021, and reduced the sentence for future felony murder convictions to a range of 16 to 48 years — affording both greater leniency and sentencing discretion. The change did not apply to Sellers, who now asks the state high court to rule that his sentence is unconstitutional. During oral arguments yesterday, some justices appeared hesitant to “substitute [their] judgment for the legislature[’s]” — despite the court’s previous acknowledgment that sentencing reforms are a key indicator of the state’s evolving standards of decency that are central to a constitutional excessive punishment claim.

Finally, the Michigan Supreme Court — which recently surpassed federal case law to prohibit mandatory life without parole sentences for 18 year olds — has asked for briefs on whether “mandatory life without parole for felony murder” violates the state constitutional ban on cruel or unusual punishments. That case is brought by Edwin Langston, a now-elderly man who in 1976 was held responsible for a murder committed by someone else during a robbery, and for which Langston was not even present.

There remain strong arguments that the Eighth Amendment forbids consigning people to die in prison based on felony murder convictions, even if the current U.S. Supreme Court majority is unlikely to embrace them. But state constitutional law provides a path to justice that doesn’t require reconciling inconsistent and flawed precedent upholding extreme prison terms for modest crimes. State supreme courts that take their constitutional obligations seriously should do what both common decency and the law demands: ban life without parole for felony murder.

A version of this article first appeared in the Behind The Bench Newsletter, a publication by the State Law Research Initiative about state supreme courts, constitutions, and how they shape criminal legal systems.

Kyle C. Barry is director of the State Law Research Initiative.