A Murder By Any Other Name


“A person commits the offense of deliberate homicide if the person purposely or knowingly causes the death of another human being.” This – the first definition of deliberate homicide in the MCA – is what most people think of when charging a person with said crime. If convicted under the Montana statute, a person faces a number of possible sentences, the least of which is no less than a decade spent in state prison. That’s not a light sentence, but there’s also the much heavier possiblity that a conviction results in capital punishment. This high level of sentencing is not restricted to intentionally killing another person. The Montana statute has a second provision that the crime of deliberate homicide may also be satisfied by “felony murder.” If a person attempts to commit, commits, or is legally accountable for an attempted forcible felony and in the course of the felony (or “flight thereafter”) that person, or any person legally accountable for the felony, causes the death of another, they may be charged with deliberate homicide and subjected to the same level of sentencing as a person who set out with the intention to kill someone. For felony murder the mental state element is considered as to the underlying felony. It matters not whether the person possessed the requisite mental state to the victim’s death, only that the person intended to commit the forcible felony that was the catalyst of the result. At first blush that appears rather harsh. Further inspection does little to convince otherwise. 

Before examining the inequities in the justice system that ensue from felony murder charges and convictions, let’s briefly consider the origin of felony murder and its continuance in our modern system as an unfortunate relic of the United States’ adoption (and possible misinterpretation?) of early English common law. In the beginning, punishment for causing another’s death did not consider varying degrees of mental state. There were only two classifications of homicide – “justified” and “unjustified.” Mens rea was not a factor until the codification of “malice aforethought” (intent or premeditation) in the late 1300s. A requisite mental state significantly narrowed crimes from justified/unjustified, but these charges still read broadly. During this time, mental state was not qualified by the various standards we understand today. Also important to our understanding of felony murder is that early common law felonies were punishable by death. No statutory inclusion was necessary for felony murder, because a person was subject to the same punishment (death) if a person committed a felony or a murder when the appropriate mental state was met. As society’s definition of felony expanded beyond the few recognized by common law it also came to the conclusion that not every felony deserved the same level of sentencing as what an intentional homicide warranted. However, the law in the United States failed to cross reference that evolution when presented with a dead body. For the most part, it’s safe to say that the general populace agrees that one person legally accountable for another’s attempted forcible felony should not face  the same level of punishment as a person who successfully commits premeditated homicide. However, that’s exactly what happens with felony murder. For those of us who learn by example, Person A might be legally accountable for robbery because they drove the getaway car for their friend Person B. Person A purposely aided Person B in the “planning [and] commission” of the offense. Person A might never set foot in the building being robbed, but if Person B kills someone in the process Person A might now be held accountable for deliberate homicide. Even if Person B did not purposely or knowingly kill the victim. Since Person A had the requisite mental state for robbery, that may be stretched to a charge of deliberate homicide. If that leap elicits some confusion you are not alone. A considerable base of legal scholars address felony murder as “a lexicon of everything…wrong with a legal doctrine.” “Everything wrong” with this rule is not limited to the face of felony murder statutes –  the racist application of the law creates an additional layer of injustice. Felony murder is a prime example of issues with the justice system discussed in previous posts, namely prosecutorial discretion and disparities in sentencing, in action. 

Last year, an Illinois man shot and killed Jaquan Swopes, a Black child. Whether or not the man who killed Swopes was legally entitled to defense of his property took a backseat when the county prosecutor charged Swopes’ friends, also Black, with his death. Though eventually amended to lesser offenses, the group of friends he was with at the time of the alleged burglary were originally charged with felony murder (as adults) and each held on $1 million bail. The group of friends was in the man’s driveway at night, he came out of his house to yell at them to leave. He admits all but one moved towards their vehicle. He fired shots when one of the friends allegedly moved in his direction. Swopes was one of the group that moved to leave, he was 14 at the time of his death. Past posts have discussed prosecutorial discretion. Felony murder specifically reflects this issue. The attorney could have initially just prosecuted Swopes’ friends with attempted burglary. Instead he originally charged five Black teenagers as adults with a crime that carried a potential sentence equivalent to intentionally killing their friend. 

For the purpose of considering the possible consequences (convictions and sentencing) of prosecutorial discretion in regards to felony murder let’s return to our robbery example following Person A and Person B. Recall Person A never even steps foot in the building, they’re only responsible for the escape plan. Consider two separate scenarios. In scenario one Person A is white. In scenario two Person A is Black. In both scenarios let’s assume the person killed by Person B was white. A Black defendant is more likely to be charged with felony murder than white defendants, this statistic is further exacerbated if the victim was white. So in scenario one, the white defendant might only be held accountable for robbery, however the Black defendant in scenario two is more likely to find themselves charged with a murder they did not commit. 

To what extent are Black defendants more likely to face felony murder prosecutions? This is a difficult statistic to pin down to an exact number. Once convicted, our criminal system does not differentiate between who was convicted for actually killing someone and who was convicted under felony murder. What we do know is that Black people are five times more likely to face incarceration than white people. We also know that one in five people sentenced to prison for a minimum of ten years is a Black man who was incarcerated before he turned 25. Overall, Black defendants are more likely to face charges and convictions for crimes eligible for a capital punishment sentence. On top of this obvious disparity, an innocent Black person is seven times more likely to be falsely convicted of murder than an innocent white person. Although it is difficult to accurately measure the exact statistics of felony murder compared to traditional deliberate homicide by race, the surrounding information supports the conclusion that in accordance with the rest of the criminal justice system, Black defendants are disproportionately overrepresented in felony murder charges and convictions.

Felony murder is an outdated, unjust doctrine that the vast majority of states have solidified within their criminal code. As with much of the United States’ criminal system, felony murder provides the opportunity for racially disparate application with severe results. At every step of the process, starting with socioeconomic barriers to bail all the way through sentencing, Black defendants are subjected to the charge of felony murder at a harsher rate than white defendants. It is time for Montana, and other felony murder states, to rexeamine what qualifies as a deliberate homicide. 


– L. Moose


Further Readings

Tison v. Arizona, 481 U.S. 137 (1987). The Supreme Court case that held traditional deliberate homicide sentences could be considered proportional punishments for felony murder. Available on Westlaw.

Eric Henkel, Two Crimes for the Price of One: Reshaping Felony Homicide in State v. Russell, 71 Mont. L. Rev. 205 (2010). Goes deeper into felony murder specific to Montana. Available on Westlaw.

Joseph C. Mauro, Intentional Killing Without Intending to Kill: Knobe’s Theory As A Rational Limit on Felony Murder, 73 La. L. Rev. 1011 (2013). Suggests that transferring intent in felony murder may not be quite the leap this post considers it to be, if certain additional factors are considered. Available on Westlaw.

Mariko K. Shitama, Bringing Our Children Back from the Land of Nod: Why the Eighth Amendment Forbids Condemning Juveniles to Die in Prison for Accessorial Felony Murder, 65 Fla. L. Rev. 813 (2013). Considers felony murder convictions amongst youth. Available on Westlaw

The Injustice of Felony Murder: examines the two different theories of felony murder – proximate cause theory v. agency theory. Proximate cause gives rise to broader liability. 

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