The punishment doesn’t fit the crime when it comes to the felony murder rule 

American law is filled with strange, arcane rules and prohibitions. For example, Alaska forbids anyone from pushing a live moose out of an airplane. California’s Solar Rights Act guarantees residents of that state access to sunlight for drying clothes. And, in Wisconsin, it is a crime to serve margarine or other butter substitutes in restaurants unless a customer specifically requests them.  

Although these laws may seem comical, some of this country’s strangest laws are deadly serious. The clearest example is the so-called “felony murder rule.” 

Under that rule, anyone involved in a felony can also be held responsible if someone is murdered during that crime. Forty-eight states, the District of Columbia and the federal government all have laws that make it possible to convict a person of felony murder, even if they don’t kill anyone. Hawaii and Kentucky are the only places that do not have this rule on the books.

The felony murder rule has put thousands of individuals behind bars, with many of them serving life sentences. Moreover, under current Supreme Court doctrine, a defendant who was a “major participant” in the felony and acted with “reckless indifference to human life” in its commission can even be sentenced to death. 

Yet the felony murder rule generally flies under the radar and seldom makes headlines. That all changed this month, when the Pennsylvania Supreme Court heard oral arguments in a case challenging the constitutionality of imposing mandatory life imprisonment without parole for a felony murder.

Derek Lee, the plaintiff in the Pennsylvania case, is “one of the many Black Pennsylvanians serving life without parole for felony murder,” Slate explains.  

Lee and another man broke into a home looking to rob its occupants. During the robbery, Lee’s co-defendant killed one of them. According to Slate, “Lee was acquitted of first-degree murder but convicted of robbery, conspiracy, and…the felony-murder conviction…based on his co-defendant’s killing of the man while Lee was committing the other felonies.”  

He was sentenced to life without parole. 

The court should consider whether it is cruel to treat someone as a murderer when he or she did not personally kill anyone. And, if it is unwilling to do so, at the very least it should ensure that no one will ever again be subject to the kind of draconian punishment currently allowed in Pennsylvania.  

The felony murder rule has a long lineage, which some sources trace as far back as the 12th century. But it was formally adopted by England in 1716. (That country eventually abolished it in 1957.)  

In 1827, Illinois became the first state in this country to codify felony murder. New Jersey and New York followed suit in 1829. Proponents of the rule hoped it would serve to deter criminals from felonious activity, lest they end up being convicted of murder if were killed in the course of their crime. 

Whatever its origin story and justification, the felony murder rule today sits uneasily in a legal system that generally tethers criminal responsibility to intent. You can only be convicted of a crime if you intend to commit it and do so with a “guilty mind.”  

Justice requires that we only punish truly blameworthy people. That is why the felony murder rule is so unfair.  

And it has some very bad effects. The Felony Murder Reporting Project says that “Felony murder is a significant driver of the extreme sentencing of youth, Black people, and women (including survivors of domestic violence and police violence), and an overlooked driver of mass incarceration.”

It found that “34 states as well as the District of Columbia authorized the death penalty or a sentence of death in prison (life without the possibility of parole) for a felony murder conviction.” 

Pennsylvania is one of those states. And its felony murder statute is particularly unforgiving. No one charged with felony murder in the Keystone State can raise what is called “an affirmative defense.” Examples of the most common kinds of affirmative defenses are that defendants “acted under duress, that they weren’t armed and had no reason to believe another participant was armed or intended to engage in conduct likely to result in death.” 

In Pennsylvania, as the Felony Murder Reporting Project notes, “Black people are 17 times more likely to be incarcerated for felony murder than are Whites … all of the 1,113 people sentenced for felony murder…(are) serving life sentences.” 

The case before the Pennsylvania Supreme Court focuses on those life sentences and their racially disproportionate impact. Lee is asking the Pennsylvania Supreme Court to find that his sentence violates the Pennsylvania Constitution’s ban on “cruel punishments” and the U.S. Constitution’s Eighth Amendment. Lee argues that the state constitution’s authors intended it to afford “a visionary protection against excessive punishment” to Pennsylvania citizens.

Lee’s lawyers told the court that the state’s punishment for felony murder was indeed excessive and cruel. “Pennsylvania is,” they suggested, “an extreme outlier both nationally and globally in sentencing people to die in prison, particularly when convicted of felony murder. This sentencing practice reflects substantial racial bias, as 70 percent of those serving life-without-parole for felony-murder convictions in Pennsylvania are Black despite Black people making up only about 11 percent of the overall population.”

In addition, “Pennsylvania’s mandatory life-without-parole scheme for all felony-murder convictions has contributed substantially to the creation of a growing aging and elderly population in prison that poses virtually no public safety risk at great cost to the state and the lives of those incarcerated.” 

Punishing people who pose “no public safety risk” is another way of saying that life without parole achieves no legitimate purpose in felony murder cases. A brief filed by a group of academic experts on the Eighth Amendment adds that “no penological purpose justifies Pennsylvania’s mandate of imprisonment until death for a class of people convicted of felony murder whose culpability is diminished because they did not kill or intend to kill, the sentencing practice challenged here is categorically disproportionate.”  

The state responded to these claims by suggesting that the question of how to punish a defendant convicted on the state’s felony murder rule is a matter of policy, not law. It should be decided by the legislature rather than the courts. 

But, as Slate notes, during oral argument the justices appeared unpersuaded by the state’s argument and sympathetic to Lee’s position. As a result, they focused almost exclusively on various practical issues that would follow from a decision in his favor.  

Such a decision would be an important step toward a long overdue reckoning with one of this country’s strangest and cruelest laws. It is time for the U.S. to do what almost every other democratic nation has already done: abolish the felony murder rule. 

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.