Felony Murder: Specific Intent to Kill

Felony murder convictions require a specific intent to kill someone and it is one of the highest categories of homicide. If convicted of felony murder, defendants could face life in prison or the death penalty in some states. Defenses of felony murder charges often involve attempts to negate the intent requirement of the killing in order to reduce charges to manslaughter.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 15, 2021

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Whenever someone causes the death of another person, they could face a wide range of homicide offenses. Homicide offenses range from those related to negligent conduct, as in criminally negligent homicide, to heinous intent murders, like capital murder.

One of the highest categories of homicide is felony murder. Next to capital murder, most states consider this the most severe degree of murder.

Felony murder is intentionally taking another human life; and if convicted, an offender faces an extremely high punishment range, including the death penalty in some states.

Read our legal guide to understand the charge of felony murder, any possible defenses, and the punishment and penalties for felony murder allegations.

What Is Involved in a Felony Murder Allegation?

As mentioned, felony murder is the intentional killing of another person. Some states use the term felony murder, but others frequently call the same offense just murder, and the next higher category, capital murder.

The name is a bit misleading because the name “felony murder” implies there must be a “misdemeanor murder,” but all murder charges are felonies. The purpose of the title is to differentiate from other homicide offenses with lower levels of intent, such as involuntary manslaughter.

Even though the exact requirements will vary by state, felony murder is usually charged in one of two ways:

  1. The first method of charging felony murder is by specific intent. This is commonly known as first-degree murder. If a defendant intends to kill a victim or premeditates the death of another, the intent plus the result supports a felony murder charge. Many states word their statutes to require that the defendant caused the death of another person. However, because of Supreme Court rulings, some states (like Alabama) will also specifically include unborn children in the category of “persons” and do not limit their felony murder statutes to persons who are already born.
  2. The second method of charging felony murder is by conduct. If a defendant was engaged in conduct that would constitute a felony offense and caused the death of another person during the course of that conduct, they could also be charged with felony murder. The state is not required to prove that the defendant had a specific intent to kill the victim, only that the defendant intended to commit the felony offense. Some state statutes are very broad and encompass any felony or flight from any felony. Other states narrow the category of collateral offense. Alabama, for example, has a list of about seventeen offenses that will qualify for a felony murder charge. Knowing how felony murder is charged and the charging limitations can help a defendant develop a defensive strategy.

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What are Some Defenses for Felony Murder?

The first defensive approach is to review the charging state’s felony murder statute to see if the events alleged comply with the required elements.

A second defensive strategy is to negate the intent requirement if the felony murder allegation is based on a specific intent to kill another. Negation of intent can also include the invocation of certain affirmative defenses like self-defense, sudden passion, and necessity.

Essentially, a defendant puts on evidence that they had no other choice and the decision was spontaneous, rather than a planned or premeditated act.

A third defensive strategy, mitigation, is similar to the second strategy, in that it involves an admission that the death of an individual occurred. Instead of contesting that the defendant was responsible for the death of another, they put on evidence of a lesser-included offense.

A lesser included offense is a similar charge that requires a lower intent (like negligence or recklessness), and thereby a lower range of eventual punishment. To get instruction on a lesser included charge, a defendant is required to develop some testimony to support a charge to the jury.

Lesser included offenses could include reckless manslaughter, involuntary manslaughter, or vehicular manslaughter. Even though admitting even part of guilt seems odd, the result can be a much lower charge, and thereby a much lower punishment range at sentencing.

What are Possible Consequences for a Felony Murder Allegation?

Felony murder defendants face a steep range of punishment. Many states will classify felony murder as one degree lower than capital murder, where the death penalty is an option. However, for those states that do not have a charge entitled “capital murder”, felony murder can include a death sentence option. Even where the death penalty is not an option, a sentence of life in prison usually is. For any felony murder charge, a defendant can be incarcerated for as little as five years, but up to life in prison. The exact range of punishment will depend on the penal code of the charging state.

Because felony murder is a specific intent crime (intent to kill another or intent to commit a felony crime), a majority of defendants do face maximum penalties. However, some defendants are successful at obtaining probation if they are young, have a limited history, and their involvement as a party to the offense was limited. If a defendant is able to get a probated sentence, they are usually placed on intensive supervision. Intensive supervision can involve extra reporting requirements, orders to pay restitution, and geographic restrictions on their movement.

Beyond the criminal case, felony murder carries other consequences. Because of the open records, more employers will know about the conviction and will often refuse to hire individuals convicted of assaultive offenses, like felony murder. If a defendant held a professional license, many state agencies will revoke their license after a final conviction. The punishment actually continues far beyond the prison sentence.

How Can You Get Legal Help?

Next to capital murder, felony murder is the most serious of criminal offenses. Even a mere allegation can impact a defendant’s job and reputation in the community. Any defendant charged with felony murder should visit with a criminal defense attorney as soon as possible after the event to obtain help in preserving valuable evidence and invoking certain defenses. Many of the best defenses and mitigation strategies are developed prior to the indictment when the evidence is fresh and witness memories are still clear.

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