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Article: Too Young for the Crime, Yet Old Enough to do Life: A Critical Review of How State Felony Murder Laws Apply to Juvenile Defendants

Stuti S. Kokkalera, Beck M. Strah, and Anya Bornstein examine statutes and case law from the fifty states and the District of Columbia to examine how felony murder laws lead to lengthy sentences for juvenile defendants.

Published onJun 01, 2021
Article: Too Young for the Crime, Yet Old Enough to do Life: A Critical Review of How State Felony Murder Laws Apply to Juvenile Defendants
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Abstract

The felony murder rule applies when a killing occurs during the commission of a felony offense. Youth under the age of 18 years can be charged with felony murder even if they did not commit the killing or intend the death of the victim, and subsequently sentenced to an adult maximum sentence, including life in prison. This study examines how states enable lengthy sentencing terms for their juvenile defendants charged with felony murder. By reviewing felony murder provisions and state appellate court decisions in all fifty states and the District of Columbia, we identify how juveniles who did not commit the act of homicide and/or intend for the killing in a felony murder are sentenced to lengthy prison terms. We conclude with a call to recognize that punishment terms of juveniles for felony murder should be viewed as unconstitutional under the Eighth Amendment.

The Journal of Criminal Justice and Law is the official open access journal of the Law and Public Policy Section of the Academy of Criminal Justice Sciences. The journal is jointly published in collaboration with the University of Houston-Downtown.
Cite this article as: Kokkalera, S. S., Strah, B. M., and Bornstein, A. (2021). Too young for the crime, yet old enough to do life: A critical review of how state felony murder laws apply to juvenile defendants. Journal of Criminal Justice and Law, 4(2), 90-107
To quote or cite page numbers, download the “Formatted PDF” version from this site and use the page numbers as indicated in that document. The “Formatted PDF” file is the journal’s official version of the article.

In March 1998, seventeen-year-old Karen Howell began serving a life without parole (LWOP) sentence for felony murder. One year earlier, Karen joined five other youths, all aged between 14 and 20 years, on a trip from Pikeville, Kentucky to New Orleans, Louisiana. On their trip, they encountered the Lillelid family at a rest area in Tennessee. The oldest in the group, Joseph Risner threatened the young family with a gun, forcing them to drive their van with the group to a secluded spot. Once they arrived at the destination, Risner shot the two parents and their  children, with only the youngest toddler surviving.

Karen, who was a part of the group, did not pull the trigger nor show any intention to kill the family. Yet, she pled guilty to first-degree murder and received LWOP instead of the death penalty. As a result of U.S. Supreme Court decisions banning automatic LWOP sentences for juveniles (Miller v. Alabama, 2012) and establishing the retroactive application of Miller (Montgomery v. Louisiana, 2016), Karen requested to be resentenced. The trial court rejected her petition, noting that her sentence of LWOP was a discretionary one that had presumably considered her age, intellectual limitations (Karen had an IQ level of 78) and capacity for rehabilitation. Karen’s appeals of the trial court’s order denying resentencing were not successful in the Tennessee appellate court system, and a writ of certiorari was filed in the Supreme Court in 2018.

In the writ of certiorari, Karen’s attorneys argued that LWOP sentences are unconstitutional under the Eighth Amendment’s proportionality clause prohibiting “cruel and unusual punishment”. Specifically, life sentences should be categorically barred for juveniles convicted of felony murder or under a theory of accomplice liability because of their lesser culpability and increased potential for rehabilitation (Juvenile Law Center et al Amicus Brief in Howell v. Tennessee, 2018). The Supreme Court denied the petition for certiorari, leaving open the constitutionality of life sentences when the felony murder rule is applied to youths like Karen —  juveniles who did not kill, intend to kill, nor anticipate the killing of a victim during the commission of another felony.

The felony murder rule is based on the notion that any killing is murder when it occurs during the perpetration or attempted perpetration of a felony (Dobscha, 2019). Crucially, the felony murder rule does not require any intent to kill. Instead, the commission (or attempt) of a felony establishes “implied malice”, eliminating the need for the court to determine intent (Birdsong, 2006). All perpetrators are held accountable for any and all casualties during the felony or attempted felony. In theory, by not requiring intent to kill, the felony murder rule is expected to deter individuals from causing a fatality during the commission of a felony (Binder, 2008). 

Karen is one example of an adolescent sentenced to a lengthy adult maximum for a crime where criminal intent cannot be easily assigned. Nearly 3,000 juveniles were sentenced to LWOP for mostly homicide offenses (Associated Press, 2017). An estimated one half to one-quarter of juveniles are serving their life sentences due to the felony murder rule (Flynn, 2008; Human Rights Watch, 2005). So, how have states enabled the sentencing of their juveniles to adult maximums for felony murder? Our goal is to illustrate how adolescents end up in the criminal legal system when there was no intent to kill or foresee death as a result of their actions or the actions of their codefendants.

We begin with a brief review of the felony murder rule, and its extension to individuals below the age of eighteen years. Methods for identifying state provisions related to the applicability of the felony murder rule to juveniles are described before discussing the results of the landscape analysis of state’s statutes and case law. Our critical review sheds light on how juveniles receive life sentences in felony murder cases even when they did not commit the killing, nor intend death. Furthermore, culpability in felony murder cases is mitigated by developmental evidence that juveniles are less likely to think ahead and weigh consequences, regardless of criminal intent. Accordingly, we conclude with a call to recognize that lengthy punishment terms for juveniles convicted of felony murder should be viewed as unconstitutional under the Eighth Amendment.

A Brief Review of Felony Murder Rule

The foundations of felony murder are drawn from English common law principles. The English common law concept of felony murder states that an individual is guilty of murder if their actions result in the death of another during the commission or attempted commission of a felony offense (Loewy, 1987). The felony murder rule applies to deaths caused intentionally, accidentally, negligently, or recklessly (Binder, 2004; Drizin & Keegan, 2003). Unlike other homicide offenses, mens rea is not required to establish malice; the intent to commit a felony automatically implies malice. Specifically, common law stipulates that unintended harms resulting from unlawful acts should be punished severely. In other words, the principle of malice is implied in the commission of a felony, and any resulting death is considered a murder, regardless of intention to kill (Binder, 2004; Birdsong, 2006). A “shared” mens rea is imposed on accomplices of the felony offense, holding each individual involved responsible for the resulting homicide (Drizin & Keegan, 2003).

In 1794, Pennsylvania established that homicides stemming from the commission of arson, rape, robbery, and burglary were considered first-degree murder, and therefore made the perpetrator eligible for capital punishment. Homicides occurring in the commission of all other felonies were to be considered second-degree murder. Pennsylvania did not explicitly state a felony murder rule but prescribed that engagement in certain felonies was subject to aggravating one’s liability for murder (Birdsong, 2006; Burton, 2017). Pennsylvania’s statute was instrumental in establishing a homicide code, which was subsequently adopted by a majority of states by the early nineteenth century (Birdsong, 2006).

State legislatures passed felony murder rules beginning in the 1820s, imposing liability for deaths that occurred during the commission or attempt of felony offenses (Binder, 2004). Illinois established the first true felony murder statute in 1827. The Illinois statute established murder as “involuntary killing… in the commission of an unlawful act which in its consequences, naturally tends to destroy the life of a human being or is committed in prosecution of a felonious intent… shall be deemed and adjudged to be murder” (Birdsong, 2006). The felony murder rule was not considered applicable to all felonies, but only those wherein the offense was known to be dangerous and could potentially result in death. New Jersey and New York followed by enacting felony murder statutes in 1829, and most states followed afterwards (Binder, 2004; Birdsong, 2006). At the time, it was common for state jurisdictions to apply the felony murder rule only in cases where the offense was reckless or negligent, and with danger to human life.

The penological justification for the felony murder rule was based on the principles of deterrence and retribution (Binder, 2008; Binder, Fissell & Weisberg, 2016).1 Even today, defenders of felony murder statutes argue that the rule deters would-be offenders from engaging in felonies that might result in death (Drizin & Keegan, 2003). Supporters also contend that regardless of intent, a person has died in the commission of a felony, which should be met with retributive consequences (Casey, 2020; Dobscha, 2019). In other words, because the defendant made poor choices that resulted in fatal consequences, the defendant should be punished for their actions to the fullest extent (Burton, 2017; Flynn, 2008).

The Shortcomings of the Felony Murder Rule

In recent years, numerous criticisms against the felony murder rule have emerged. Felony murder charges are broadly applied, holding all accomplices accountable for any death resulting from a felony (Binder, 2004). Meaning, all persons involved in the underlying felony can be held responsible for the homicide, including those who are accessories to the offense. The punishment is much harsher than merited by the culpability of the defendants (Burton, 2017). Several other criminal statutes apply to murder, such as accessory to murder, and conspiracy to commit murder, as well as charges for underlying felonies. Thus, applying felony murder charges can be viewed as an unnecessarily punitive response for this degree of offense, especially when a defendant has not demonstrated the intent to take a life (Binder, 2004; Shitama, 2013). 

England abolished the felony murder rule in 1957, starting an international trend followed by Australia, Canada, India, and all other common law countries, with exception of the United States. While similar policies have since been constructed in some of the countries that abolished the felony murder rule, these more recent provisions specifically require intention to kill or inflict bodily harm. The U.S. felony murder rule stands apart from other countries in this respect because it provides that prosecutors do not have to establish intent for the homicide. Critics of the felony murder rule have often addressed this lack of mens rea needed for conviction, which is particularly troublesome, provided that the resulting punishment is often life in prison without parole or the death penalty (Binder et al., 2016; Drizin & Keegan, 2003).

Felony murder convictions often result in long periods of incarceration, thereby increasing state prison populations. However, past studies have shown that states gain little-to-no deterrent value from adopting the felony murder rule (Garoupa & Klick, 2008). States that enforce the felony murder rule experience small, and often non-significant decreases in some felony offenses, such as burglary, auto theft, larceny, and rape. However, these states also demonstrate increased robbery offense rates and a greater number of felony-related deaths, suggesting a lack of deterrent value overall (Malani, 2002). Implementing research-based alternatives and less restrictive sanctions should be strategies considered for attenuating mass incarceration, particularly when persons involved are not directly associated with the homicide itself. Even juvenile defendants are not exempt from the possibility of long sentences, often resulting in dire consequences such as disruptions to family and education, and increased probabilities of reoffending (Rodriguez, 2013).

The Application of the Felony Murder Rule to Juveniles

When juveniles are removed from the jurisdiction of the juvenile legal system, they face the same penalties as adults in the criminal legal system. Since the inception of the juvenile court, judges could transfer youth to criminal courts, but this option was used rather sparingly, confined to only the most serious cases involving older youth (Bishop & Feld, 2014; Feld, 2017; Zimring, 2010). In the late 1980s and early 1990s, violent crimes particularly by younger adolescents received an extraordinary amount of attention from the media (Bishop & Feld, 2014). Though such crimes were rare occurrences, the political response during this time was to be “tough on crime” (Benekos & Merlo, 2008; Bishop & Feld, 2014; Hagan, 2010; Simon, 2007; Singer, 1996). The tough on crime narrative is widely reflected in public opinion as well; as a juvenile defendant’s culpability and level of involvement in the felony offense increases, public support for a waiver into the adult criminal justice system increases (Garberg & Libkuman, 2009). States diversified their processes for transferring juveniles to criminal court through judicial waiver hearings, automatic exclusions and/or direct filing by prosecutors (Bishop & Feld, 2014; Butts & Travis, 2002; Fagan & Zimring, 2000; Mulvey & Schubert, 2012). States also lowered the age jurisdiction of juvenile courts, thereby sending more adolescents directly to criminal court (Allard & Young, 2002).

Prosecutorial discretion, in particular, expanded in the early 1990s, with more direct filing by prosecutors in criminal court instead of juvenile court (Griffin, Addie, Adams & Firestine, 2011). The number of juveniles in criminal court also increased due to statutory exclusion laws, which categorize juveniles by the charges filed, and the charges filed determine which court has jurisdiction over the case (Zimring, 2010). Twenty-nine states passed statutory exclusion laws that allowed the criminal court’s exclusive jurisdiction over specified offenses committed by juveniles (Rovner, 2016). Upon a criminal court conviction, juveniles are subject to the same sanctions as adults including life sentences like LWOP (Seeds, 2018).

In a series of decisions examining the applicability of the Eighth Amendment’s prohibition against cruel and unusual punishment to the sentencing of juveniles to adult maximums, the Supreme Court drew on developmental evidence that juveniles are different from adults (Feld, 2017). In banning the death penalty for adolescents aged seventeen and younger, the Supreme Court noted that juveniles are generally less culpable because they are more impulsive, susceptible to negative peer influences, and have transient personalities (Roper v. Simmons, 2005). Five years later, the Supreme Court found that an LWOP sentence for juveniles convicted of non-homicide offenses was disproportionate per the Eighth Amendment’s proportionality clause and warranted providing a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” (Graham v. Florida, 2010, p. 75). According to the Supreme Court, a state is not required to guarantee that a juvenile convicted of a nonhomicidal offense and sentenced to life must be released, but it should provide a meaningful opportunity to establish maturity and rehabilitation to obtain release before the end of that term.

In Miller v. Alabama (2012), the Supreme Court extended the Eighth Amendment’s protection for mandatory LWOP terms. One of the consolidated cases in the decision was Kuntrell Jackson’s. Kuntrell was 14 years old when he and two other youths decided to rob a video store. Kuntrell waited outside the store while the other two youths went in, and one of the youths ended up shooting the store clerk. Kuntrell was not the shooter and has consistently maintained that he did not know that his accomplice was planning to kill the clerk (Drinan, 2017). He was charged with felony murder in criminal court, convicted of first-degree murder and sentenced to a mandatory LWOP sentence.

Like Karen Howell, Kuntrell was sentenced to die in prison for a homicide he did not commit, nor had the intention to commit. But the Miller Court focused on the problematic nature of mandatory penalties that allow no consideration for a defendant’s age, or their life circumstances at the time. Justice Kagan’s majority opinion further noted that mandatory terms “neglect the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him” (Miller, 2012 at p. 479). Thus, the Miller decision brought to the forefront the problems with the felony murder rule but left it to states to decide on the constitutionality of sentencing juveniles to adult maximums for felony murder. 

Later in Montgomery v. Louisiana (2016), the Supreme Court held that juvenile lifers previously sentenced to automatic LWOP terms have the possibility of release through resentencing or a state parole board hearing. Yet the Montgomery Court noted that the Eighth Amendment does not preclude states from imposing LWOP on a juvenile if they are one of those “rare juveniles” who “exhibits such irretrievable depravity that rehabilitation is impossible” (2016, p. 733). Following Montgomery, Karen Howell sought resentencing but was denied by Tennessee state courts since she received a discretionary LWOP sentence. The U.S. Supreme Court declined to hear Karen’s certiorari petition in 2018. Therefore, states can continue to sentence juveniles to life including discretionary LWOP in felony murder cases.

Rethinking the Felony Murder Rule in the Context of Juvenile Defendants

The felony murder rule does not take into account the rule’s effects on teenagers, as they experience a neurological-based inability to recognize the consequences of their actions (Burton, 2017; Juvenile Law Center et al Amicus Brief in Commonwealth v. Lugo, 2018 [SJC]; Miller v. Alabama, 2012; Steinberg & Cauffman, 1996). Differences in neurological anatomy and structure suggest that adolescents present impaired aptitudes for decision-making, impulse control, and judgment (Drizin & Keegan, 2003; Steinberg & Cauffman, 1996). Until biological development to adulthood, adolescent differences encourage more impulsive and risky behaviors, increase peer dependency, limit an adolescent from weighing risks and benefits of actions, and preclude thorough assessments of long-term consequences (Burton, 2017; Juvenile Law Center et al Amicus Brief in Commonwealth v. Lugo, 2018 [SJC]; Miller v. Alabama, 2012).

Adolescent culpability is also mitigated by ongoing psychosocial maturity, which is the function of brain development and environmental support structures (Mulvey, 2014). Psychosocial maturity, therefore, encompasses complex processes of whether an adolescent is swayed by peer influence, if they can place their actions in the broader context and/or if impulsive behavior can be suppressed (Cauffman, Fine, Mahler & Simmons, 2018). An important aspect of the development of psychosocial maturity is the interaction with peers.  Offense data indicates that juveniles engage in offending behaviors in groups more than adults, leaving them more likely to be charged under the felony murder rule (Zimring, 1999). Group offending is likely, in part, due to juveniles’ susceptibility to engage in offending or deviant behaviors as a result of peer pressure (Flynn, 2008). Adolescents desire the approval of their peers, which may compel them to engage in deviant or criminal behaviors without weighing the potential consequences that may result from their actions. The influences of peer pressure are substantially attenuated following brain maturation in adolescence, resulting in increased self-control, more efficient information processing, and enhanced decision-making skills (Teasdale, 2019). Acknowledging that youth lack the decision-making capacity of adults, juvenile defendants should be held accountable, yet at a substantially decreased standard from what the courts may expect from adult defendants (Casey, 2020).

As noted in Miller (2012), scholars have reasoned that many young defendants are not capable of understanding the flow of legal proceedings, nor are they capable of assisting in their own defense, and as such the infancy defense should override the felony murder rule (Drizin & Keegan, 2003). Once in criminal court, adolescents have the same due process protections as adults, but these rights can conflict with the need to establish that they are different in terms of their maturity and comprehension of legal consequences (Tobey, Grisso & Schwartz, 2000; Viljoen & Wilgrove, 2007). Provisions like the felony murder rule that impose mandatory terms upon conviction ignore the “incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorney” (Miller, 2012, p. 479).

With conviction of a felony murder charge, juveniles are often subject to mandatory sentencing laws that reduce judicial discretion, omitting the consideration of individual characteristics and the defendant’s risk of community harm. In many states, mandatory sentences following convictions of felony murder are a primary driver of lengthy juvenile incarcerations, including LWOP sentences (Flynn, 2008). For instance, a Massachusetts-based study shows that one in five juvenile convictions involves felony murder, and 26 percent of juveniles sentenced to LWOP are convicted of felony murder without being directly culpable for the murder itself (Monahon & Kaban, 2009).  The disproportionate impact of the felony murder rule on juvenile sentencing is concerning, and as such, requires empirical examination. 

Research Inquiry

This study aims to evaluate U.S. felony murder statutes and how these provisions apply to juveniles. Specifically, we ask, how are states enabling lengthy sentencing terms for their populations aged 17 and younger for felony murder cases? To answer our research question, we first review felony murder provisions in all fifty states and the District of Columbia. Next, we assess the types of offenses that qualify for the felony murder rule across states. An analysis of the state variation in juvenile transfer/waiver laws follows. Finally, a summary review of state appellate court decisions reflects recent changes in the sentencing of juveniles for felony murder cases. 

Method

The first phase of data collection involved the use of Internet databases to identify current felony murder statutes in each of the fifty states and the District of Columbia (DC). Materials were drawn from state legislature websites, general Internet queries, and the Westlaw database. Methodologies from prior landscape analyses were used for guidance (see Panza, Deutsch, & Hamann, 2020 as one example). 

The second phase of data collection involved coding each state’s felony murder statutes. The authors evenly divided data collection for the fifty states and DC. Each jurisdiction was evaluated for whether it currently supports a felony murder provision. If so, authors recorded whether juveniles can be tried for felony murder, the method of juvenile transfer/waiver to adult courts upon filing charges, the underlying felony offenses used to charge felony murder, and the seriousness of felony murder charges, as defined by state legislatures (e.g., first- or second-degree murder). Case law from state appellate and supreme courts was reviewed for changes applied to felony murder sentencing post-Miller (2012).  

Findings

Categorization of Felony Murder

As seen in Figure 1 (below), three states (Hawaii, Kentucky, and Michigan) do not have a felony murder rule provision. In People v. Aaron (1980), the Michigan Supreme Court abolished the felony murder rule finding that the automatic assignment of criminal intent as sufficient for first-degree homicide was not appropriate. According to the Michigan Supreme Court, causing another’s death in the commission of a felony should be taken into account as a grading factor between first- and second-degree murder, but is not necessarily murder in itself. Hawaii was the first state to abolish the felony murder rule by revising their criminal code, noting that the commission of a felony should not automatically classify an offense as murder (HRS §707-701 [1972]). Instead, each case should be determined on its own circumstances, and the nature of the felony should be considered to determine the seriousness of the homicide. Similarly, Kentucky does not have a felony murder rule through legislation (KRS §507.020 [1974]). Because a mandatory application of the rule could result in a murder conviction without specific intention, the Kentucky Legislature determined that the circumstances of each case should be considered separately, on their own merit. Under the revised law, a defendant’s intent is individually considered in establishing their blameworthiness for the homicide offense (KRS §507.020 [1974 commentary]).


Figure 1. State Distribution of Legal Categories of Felony Murder Rule


Twenty-six states qualify felony murder as first-degree murder, and nine states qualify felony murder as second-degree murder. Seven states allow felony murder to be treated as first or second-degree murder, depending on the type of felonies. For instance, in Florida, felony murder is prosecuted as first-degree murder if the defendant was directly involved in the killing of the victim during the commission of the specified felony offense (Fl. St. §782.04(1)(a)(2) [2020]). Felony murder is qualified as second-degree murder if the defendant was involved in the felony, but the homicide was the result of the codefendant’s actions, i.e., there was indirect involvement (Fl. St. §782.04(1)(a)(3), [2020]).

In three states, felony murder is not categorized as first- or second-degree murder because of “general murder statutes” where the underlying felony in a homicide is cited as an aggravating circumstance. Three other states have unique provisions related to the felony murder rule. In Ohio, felony murder is viewed as an “unclassified felony” which carries a life sentence, but it does not apply to attempted murder (ORC  §2903.02(B) [1998]). In two states, felony murder constitutes a separate murder provision that does not qualify as first- or second-degree murder, carrying separate maximum sentences of 15 years in Wisconsin and up to 30 years in Maine.


Figure 2. Proportion of States Specifying Felonies that Qualify for the Felony Murder Rule


Not all states specify the exact felonies that trigger a felony murder charge. The number of felonies stipulated range from 1 (e.g., Georgia qualifies cruelty to children as an underlying felony for second-degree murder) to 26 different felonies (Utah). On the other hand, felonies are not specified in nearly 23% of states that have the felony murder rule, meaning that the killing of the victim during any felony can result in a felony murder charge.

What is also critical in the case of juveniles (those aged 17 and younger) charged with felony murder is whether their case proceeds in juvenile court or criminal court. As seen in Figure 3 (below), 28 states send youths arrested for felony murder to criminal court, but there might be some age restrictions. For instance, juveniles 16 and older are sent to criminal court in Alaska (Alaska Stat. Ann. § 47.12.030 [2008]), whereas in Massachusetts, youths aged 14 and younger than 17 are automatically excluded from the juvenile court’s jurisdiction in felony murder cases (Mass. Gen. Laws Ann. ch. 119, § 74 [1996]).

In states that do not have statutory exclusion, other forms of transfer enable adolescents to land in criminal court (see National Center for Juvenile Justice’s Juvenile Justice GPS, 2018). For instance, in 7 states, mandatory waiver leaves little flexibility to the juvenile court judge because it requires the transfer of youth to criminal court after certain conditions are met (like the type of crime) and if an attorney is appointed to the youth. Presumptive waivers used in four states imply that the juvenile is an adult offender, and the burden is on the juvenile defendant to rebut that presumption. Similarly, 6 states have discretionary waiver laws which empower the prosecutor to present to the juvenile court why a youth should be transferred to criminal court, and the juvenile court judge must make that finding based on probable cause. In two states (Nebraska, Wyoming), the prosecutor has the ultimate authority to decide if felony murder charges should be filed in juvenile or criminal court. Here, the prosecutor decides based on the circumstances of the case whether a youth who is 14 years or older should be tried in criminal court (Neb. Rev. Stat. Ann. § 29-1816(1)(a)(ii)-(iii) [2017]).

Figure 3. Juvenile Transfer/Waiver to Criminal Court for Felony Murder Charges



Appellate Court Decisions on Juvenile Sentencing in Felony Murder Cases

Post-Miller, 25 state appellate courts have entertained cases challenging the sentencing of juveniles in felony murder cases (see Figure 4 below). Among these decisions, a little over two-thirds of state appellate courts have ruled that original sentences applied in felony murder cases were constitutionally appropriate. For instance, the Alaska Court of Appeals2 ruled that despite evidence of ongoing brain development, a 16 or 17-year-old should be viewed as culpable in sentencing even in felony murder cases. Similarly, the Superior Court of Pennsylvania3 has held that mandatory minimum sentences for second-degree murder (which includes felony murder) is constitutional (Commonwealth v. Smith, 2019 PA Super 157) and furthermore, that the Eighth Amendment allows the imposition of mandatory maximum terms for juveniles convicted of felony murder where they did not kill nor intend to kill (Commonwealth v. Olds, 2018 PA Super 197).


Figure 4. Appellate Court Decisions on Sentencing Juveniles in Felony Murder Cases


Six state appellate courts have clarified that certain types of sentences are no longer appropriate in felony murder cases involving juveniles. For example, the California Supreme Court has ruled that in light of Miller (2012), sentencing 16- and 17-year-old youth even in cases of felony murder must be made with no presumption in favor of LWOP (People v. Gutierrez, 58 Cal.4th 1354 [2014]). The Oregon Court of Appeals recently ruled that a mandatory sentence of life with the possibility of parole after 25 years for felony murder was unconstitutional under the Eighth Amendment (Hardegger v. Amsberry, 305 Or. App. 726 [2020]). In Hardegger, the petitioner was 17 years old when he was convicted of felony murder as a result of being automatically tried in criminal court. He received a mandatory life sentence per the state’s statutory scheme at the time and was denied a “second-look” hearing to which he was entitled as a juvenile defendant. By denying a second-look hearing that could have reduced the sentence length, the Oregon Court of Appeals found that the current sentence imposed on the juvenile defendant, a minimum term of 25 years, was not constitutionally appropriate.

In three states (Arkansas, Connecticut, New Jersey), appellate courts have, in separate decisions, upheld sentences in felony murder cases and rejected certain sentences. For instance, the Connecticut Supreme Court ruled that a 50-year sentence without the possibility of parole for felony murder is unconstitutional (Casiano v. Commissioner of Corrections, 317 Conn. 52 [2015]). But the same court has held that a 40-year maximum sentence for felony murder for a juvenile defendant who was 14 years old at the time was constitutionally appropriate (Griffin v. Commissioner of Corrections, 333 Conn. 480 [2019]).

Discussion

As expected, a majority of the states have some type of felony murder rule. Most states consider felony murder as first-degree murder where the prosecution would be expected to prove the element of premeditation along with intent. However, the problem with felony murder is that it does not require premeditation to kill, and intent is presumed because a felony was committed. Indeed, several felonies qualify in the definition of felony murder across states, increasing the likelihood of such charges in criminal court.

Importantly, all states allow the transfer of their adolescents from the jurisdiction of the juvenile court to the criminal legal system for felony murder cases, allowing them to face the same penalties as adults, including lengthy mandatory sentences. Karen Howell and Kuntrell Jackson’s cases are two examples of adolescents who did not actually commit the violent act but were sentenced to the harshest punishment of LWOP. As noted, there are thousands of other juvenile defendants serving time for a crime they committed but did not have the intent to cause death. In the wake of Miller (2012), scholars have advocated for recognizing a youth’s mitigated culpability and potential for rehabilitation in the form of more nuanced, individualized sentencing frameworks (Feld, 2017; Johnson, 2017; Johnson & Leigey, 2020). For instance, Ripper & Johnson (2019) suggest that a juvenile’s life expectancy, national retirement age and ability to reconnect with society could be factored in creating “livable” terms of imprisonment. But these sentencing reforms fall short in the context of felony murder cases.

A life sentence or a mandatory maximum term appears patently unfair in cases where adolescents did not kill nor intend to kill. The “implied malice” rationale underpinning the felony murder rule is at odds with what we know about adolescent behavior and decision-making (Dobscha, 2019). Brain imaging studies show that ongoing development particularly in the frontal lobes that are responsible for reasoning, assessing risk and considering consequences are impacted during adolescence (Suleiman & Dahl, 2017). As a result, developmental influences make it more likely for juveniles to be susceptible to negative peer influences and more likely to engage in criminal conduct (Glynn & Vila, 2012; Scott & Steinberg, 2008). Therefore, the inability to think ahead, or judge future consequences complicates the identification of criminal intent in felony murder cases.

State juvenile transfer policies further increase the possibility of more adolescents landing in the criminal legal system (Feld, 2017; Zimring, 2010). Statutory exclusion laws that remove the jurisdiction of the juvenile court in felony murder cases indicate that juveniles will automatically land in criminal court and as a result, face adult maximums with little consideration of their youthfulness. Prior to Miller (2012), thousands of juveniles were tried for first-degree murder knowing that the only sentence they would receive is a mandatory LWOP term for homicides they did not actually commit nor intend. Other transfer policies similarly exacerbate the likelihood of juveniles facing adult maximums even in cases where they did not pull the trigger or plan the crime. Public support research has also questioned the viability of transferring juveniles to criminal court in felony murder cases. Garberg and Libkuman (2009) find that public opinion does not support the assertion that all defendants charged with felony murder should be equally blameworthy for the resulting homicide; instead, individuals should be sentenced proportionately to their role in the offense. 

Yet, the Supreme Court’s ban on only mandatory LWOP terms has allowed states to retain discretionary LWOP sentences (Rovner, 2014, 2016). The Miller Court noted that the transiency in adolescent personalities suggest that very few juveniles should be considered perpetually dangerous. In Montgomery (2016, p. 734), the Supreme Court when giving retroactive effect to Miller directed states to provide their juvenile LWOP populations with a meaningful opportunity for release but still allowed states to impose LWOP for the “rarest juvenile offenders whose crimes reflect permanent incorrigibility”4 As scholars have noted, the ability to predict chronic adult offending based on adolescent behaviors is dubious (Binder & Notterman, 2017). To find that a juvenile defendant is permanently incorrigible, a judge has to show that rehabilitation is not possible—which conflicts with developmental evidence that youths age out of crime as they get older (Cauffman et al., 2016; Mulvey, 2014).

We are cognizant of some limitations in our analyses. In reviewing statutes, we might have missed new legislation on felony murder provisions currently under consideration. We similarly did not locate cases that are currently being heard by state appellate courts on the constitutionality of

sentences for felony murder cases. We also might have missed appellate decisions prior to Miller (2012) related to the sentencing of juveniles in felony murder cases. Furthermore, though statutory provisions show intent of how cases will be prosecuted, the reality of how cases are handled might be different especially in states where prosecutors have more discretion in deciding whether juvenile co-defendants who did not commit the killing should be charged at all. We also did not conduct our own fact-finding of how many juvenile defendants are currently serving long-term sentences for felony-murder. Nor do we have access to the numbers distinguishing juvenile defendants by their role in the crime.

Conclusion

Karen Howell and Kuntrell Jackson represent the unfair nature and catastrophic consequences of the felony murder rule. In a vast majority of states, felony murder charges are treated as first- or second-degree murder, where adolescents are automatically tried as adults and receive life sentences for a crime where they did not kill, nor have the intention to kill. Felony murder provisions ignore the possibility that a teenager might have been unaware of their codefendant’s recklessness, negligence, unplanned actions, and/or criminal intent. The felony murder rule further discounts evidence distinguishing the developmental differences that make an adolescent generally less culpable than an adult even in the case of a serious act of violence.

The Supreme Court’s recognition of a juvenile’s lesser culpability is supported by developmental evidence of impulsivity, peer dependency and transitory personalities. Children and adolescents are also not in a position to advocate for themselves in complex legal proceedings (Miller v. Alabama, 2012, p. 479). Imposing penalties like LWOP as noted by the Miller Court further precludes the possibility of meaningful rehabilitation. Other punitive sanctions such as long-term sentences place adolescents “far behind the starting line for a race that measures their performance every day that they are in prison” (Levick & Schwartz, 2013, p. 394).

Despite jurisprudential acknowledgement of lesser culpability by virtue of their adolescent status, the question of whether lengthy sentences should be barred for juveniles convicted of felony murder remains unaddressed. Based on our review of state provisions and case law, the felony murder rule facilitates the sentencing of adolescents who did not commit nor intend the actual act of murder. The retributive, deterrent, and incapacitative justifications for the felony murder rule fail against what we know about adolescent vulnerabilities and rehabilitative potential. Therefore, the opportunity is ripe for the Supreme Court, state legislatures, and state appellate courts to rule that imposing lengthy prison terms through the application of the felony murder rule to those aged 17 and younger is cruel and unusual punishment.


Declaration of Conflicting Interests: The author declares no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding: The author received no financial support with respect to the research, authorship, and/or publication of this article.

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Cited Cases

Supreme Court:

Emmund v. Florida, 458 U.S. 782 (1982)

Graham v. Florida, 560 U.S. 48 (2010)

Jones v. Mississippi, No. 18- 1259 (2021), https://www.supremecourt.gov/opinions/20pdf/18-1259_8njq.pdf

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Roper v. Simmons, 543 U.S. 551 (2005)

Tison v. Arizona, 481 U.S. 137 (1987)

State appellate courts:

Casiano v. Commissioner of Corrections, 317 Conn. 52 [2015] (Supreme Court of Connecticut)

Commonwealth v. Lugo (Massachusetts Supreme Judicial Court)

Commonwealth v. Smith, 2019 PA Super 157 (Superior Court of Pennsylvania)

Commonwealth v. Olds, 2018 PA Super 197 (Superior Court of Pennsylvania)

Griffin v. Commissioner of Corrections, 333 Conn. 480 [2019]) (Supreme Court of Connecticut)

People v. Aaron, 299 N.W.2d 304 [1980] (Michigan Supreme Court)

People v. Gutierrez, 58 Cal.4th 1354 [2014] (Supreme Court of California)

Hardegger v. Amsberry, 305 Or. App. 726 [2020] (Oregon Court of Appeals)

Statutory Provisions

“Arraignment of accused; when considered waived; accused younger than eighteen years of age; move court to waive jurisdiction to juvenile court; findings for decision; transfer to juvenile court; effect; appeal”, Nebraska Revised Statutes, Neb. Rev. Stat. Ann. § 29-1816(1)(a)(ii)-(iii) [2017]

“Limitations on Criminal Proceedings against Children”, Massachusetts General Laws, Mass. Gen. Laws Ann. ch. 119, § 74 [1996]

“Murder”, Kentucky Revised Statute, KRS §507.020 [1974]

“Murder”, Florida Statutes, Fl. St. §782.04(1)(a)(2) & (3) [2020]

“Murder”, Ohio Revised Code, ORC  §2903.02(B) [1998]

“Murder in the First Degree”, Hawaii Revised Statute, HRS §707-701 [1972]

“Provisions Inapplicable”, Alaska Statutes, Alaska Stat. Ann. § 47.12.030 [2008]

Petitions & Briefs

Petition for a Writ of Certiorari in Karen Howell v. State of Tennessee (2018), https://jlc.org/sites/default/files/attachments/2018-05/2018.4.11%20Petition%20for%20Cert.pdf.

Brief of Amici Curiae Juvenile Law Center, Center on Wrongful Convictions of Youth, and Center for Law, Brain and Behavior in Support of Petitioner (Howell v. Tennessee, 2018), https://jlc.org/sites/default/files/attachments/2018-05/2018.4.24%20Howell%20Amicus%20Brief%20-%20FINAL.pdf .


Authors

Stuti S. Kokkalera*, PhD, Assistant Professor, Department of Criminal Justice & Criminology, Sam Houston State University, Huntsville, TX.

Beck M. Strah, PhD, Assistant Professor, School of Justice Studies, Roger Williams University, Bristol, RI.

Anya Bornstein, Graduate Student, School of Justice Studies, Roger Williams University, Bristol, RI

*All correspondence related to this manuscript can be addressed to Stuti S. Kokkalera at sxk078@shsu.edu.


 

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