“A death that occurs during the commission or attempted commission of any felony constitutes murder” is the classic definition of the felony murder doctrine. Despite being one of the most controversial criminal law doctrines, the felony murder rule still exists in some form or other in most states.
Understanding the Felony Murder Rule
Under the felony murder rule, a defendant can be liable for murder if a death occurs during the commission of a felony. The defendant doesn’t need to be directly involved in the death. Liability for murder may attach even if the resulting death was purely accidental. Accomplices and co-conspirators might also be charged with murder, even if they weren’t present at the crime.
Normally to be charged with murder, the prosecutor must prove that the defendant intended the death and had a state of mind called “malice.” Broadly speaking, malice is evidence of a “depraved heart,” or an evil state of mind. Felony murder bypasses this malicious or evil intent requirement and only requires a prosecutor to prove the defendant intended to commit the underlying felony (such as robbery or burglary).
How Does the Felony Murder Rule Work?
In many states, the prosecutor can secure a felony murder conviction by proving that:
- the defendant intended to commit a felony, and
- a death occurred during the commission or attempted commission of the felony.
A few states require some sort of negligence or recklessness on the defendant’s part for felony murder to apply, but most don’t.
Felony Murder Statutes
Some states consider felony murder to be first- or second-degree murder. Others have a separate crime of “felony murder.” For example, a state law might include language such as the following.
- A person commits murder in the first degree by causing the death of another while committing or attempting to commit rape, robbery, burglary, arson, or kidnapping. Causing the death of another while committing or attempting to commit any other felony is murder in the second degree.
- Whoever causes the death of another person while perpetrating or attempting to perpetrate an “inherently dangerous felony” commits felony murder.
Federal law includes felony murder in its first-degree murder statute. (18 U.S.C. § 1111 (2023).)
Laws vary regarding the types of felonies that can form the basis for felony murder. Some states and federal law list specific felonies in statute. Other states use terms such as “inherently dangerous felonies” or simply “any felony.”
(Cal. Penal Code § 189 (2023); Kan. Stat. § 21-5402 (2023).)
Penalties for Felony Murder
If felony murder falls under a state’s first-degree murder statute, a defendant may face life imprisonment. Second-degree murder charges can carry decades in prison.
States with separate felony-murder statutes might impose a separate penalty or increase the penalty for the underlying felony. For example, Wisconsin adds 15 years to the maximum penalty for the underlying felony. Maine, on the other hand, makes felony murder a Class A crime (rather than murder with a life sentence).
(Me. Stat. tit. 17-A, § 202 (2023); Wis. Stat. § 940.03 (2023).)
Examples of Felony Murder Rule
Under many felony murder laws, it doesn’t matter how a victim dies or who “pulls the trigger,” so to speak. Anyone involved in the underlying felony may be liable for the victim’s death. Below are some examples.
Accomplices. For instance, let’s say during a bank holdup, a robber’s gun discharges by mistake, killing a bystander. The robber is liable for the bystander’s death under the felony murder rule. If the robber had accomplices—say a getaway driver and a friend who supplied the getaway car—both of the accomplices may also be liable for the bystander’s death.
Accident. Say a burglar breaks into a house believing it to be unoccupied. It turns out the homeowner is inside sleeping. Upon hearing a window break, the homeowner grabs a gun from under the bed. Trying to walk in the dark, the homeowner trips and accidentally shoots himself in the leg and dies. The burglar can face felony murder charges for the homeowner’s death.
Police caused the death. Another common example of the felony murder rule comes into play when police shoot someone while trying to stop a crime. For instance, say two teenage friends rob a liquor store. The police chase them and end up shooting and killing one of the teenagers. The surviving teenager can be charged with felony murder for their friend’s death.
Why Have the Felony Murder Rule?
There are two primary rationales for the felony murder rule (although both are controversial).
Causation. One rationale for the felony murder doctrine is that the victim's death would not have occurred but for the defendant’s unlawful actions. In some cases, a strong connection arguably exists between a victim’s death and the underlying felony. Take the robbery example used above. There, the robber killed the bystander. While the killing may have been unintentional, it wouldn’t have happened but for the robber committing a crime and carrying a loaded weapon. The causation theory, however, becomes more tenuous when the death is accidental or a non-participant kills someone (like the cop example).
Deterrence. Another given rationale for felony murder is deterrence. The theory is that a person won’t commit a felony if they know they could face murder should anything go wrong. No data supports this theory and it’s widely criticized.
Does Every State Have the Felony Murder Rule?
Not all states have the felony murder rule. In fact, a few states have rejected or effectively abandoned the rule. The states that do still follow the rule vary in its application. Some require that a defendant act maliciously, recklessly, or negligently in causing another’s death. The majority, though, don’t require any sort of culpability, other than committing a felony. Around 40 states have the felony murder rule in some form.