Issue 21: State Supreme Courts Should Ban Life Sentences For Felony Murder

December 19, 2023 By Kyle C. Barry

This week’s New Yorker has a big story on the maddening injustice of “felony murder,” one of American criminal law’s cruelest features. Shattering norms of criminal liability, the felony murder rule punishes people for deaths that they neither caused nor intended to cause, but that in some way flowed from their actions, with the connection often tenuous to the point of nonexistent.

The New Yorker focuses on Sadik Baxter, a man who was in handcuffs miles away when his accomplice in some car burglaries struck and killed two cyclists as he fled police. Yet Baxter was convicted of first degree murder and sentenced to mandatory life in prison without parole. His obvious and undisputed distance from the killings — both geographically and with regard to his intent— reduced neither his charges nor, given its mandatory nature, his sentence. 

The rule’s absurdity extends to how hard it is to challenge under federal law. The 8th Amendment prohibits excessive sentences, and the U.S. Supreme Court has said that, in theory, “grossly disproportionate” prison terms are unconstitutional. With its extreme punishments and disregard for personal culpability, felony murder would seem “grossly disproportionate” by definition. In the story, one victim’s family even told the court that a life sentence without parole for Baxter would be “cruel and unusual punishment,” echoing the 8th Amendment. Yet the practice persists, with some version of felony murder alive in 48 states. 

But the article doesn’t mention the promise of state constitutions and state supreme courts, which have increasingly used their independent power to expand rights against excessive punishments. Currently at least two pending cases before state supreme courts — one in Pennsylvania and one in Colorado — challenge felony murder, and argue that life without parole sentences for felony murder violate state constitutional rights. 


Baxter’s story is just one example of how prosecutors use felony murder. Others from the New Yorker:

In Tulsa, two men attempted to steal some copper wire from a radio tower and accidentally electrocuted themselves. One of them died and the other was charged with first-degree murder while recovering from his burns in the hospital; the girlfriend of the deceased was also charged with murder, for having driven them to the tower. In Topeka, a twenty-two-year-old made the mistake of hiding his gun atop his girlfriend’s refrigerator; he was charged with first-degree murder several days later, when a child inadvertently fired it at a thirteen-year-old girl. In Minneapolis, a sixteen-year-old girl who sat in the car while two older men killed someone in a robbery was charged with felony murder.

Felony murder also compounds the devastation of police violence, allowing murder charges against bystanders when police kill. In Phoenix, police in 2019 shot and killed a teenager while he ran away, and then prosecutors charged the teenager’s friends with murder. The officer was not punished

The injustice goes beyond punishing people for things they didn’t do. As the New Yorker explains, the rule targets the most vulnerable and historically marginalized. Felony murder yields massive racial disparities, and is often wielded against people who are suffering from addiction (e.g., if they share drugs with a friend who overdoses), survivors of domestic abuse (e.g., when women are coerced into criminal conduct by abusive men), and young people (who are often punished for the conduct of adults or their friends). 

All these factors should make felony murder ripe for constitutional challenge. And to some extent the U.S. Supreme Court has agreed. In Enmund v. Florida, decided in 1982, the Court banned death sentences in felony murder cases. The Court stressed that “punishment must be tailored to [a person’s] personal responsibility and moral guilt,” and that the 8th Amendment forbids treating people who neither killed nor intended to kill with the same severity as those who do. Given that rationale, it’s hard to see why life without parole sentences — now often the most severe sentence possible — would be treated any differently. 

The contradiction in part lies in how the Supreme Court has used different legal rules in different types of cases, without a clear explanation as to why. 

In capital cases like Enmund, and in cases involving youth with life sentences, the Court uses the “categorical approach” to assess excessive punishment claims. This relatively exacting standard, as I wrote before, “is responsive to evolving norms and practices, as well as to modern social science and other empirical evidence about the efficacy of harsh criminal punishments. It asks whether there is a growing consensus against challenged punishments, and, separately, whether punishments track with the culpability of those who receive them and serve legitimate penological goals.” It was under this framework that the Court banned capital punishment for felony murder, as well as for children, people with intellectual disabilities, and for non-homicide crimes.

Yet for adult prison terms, the Court has asked only whether the sentence is “grossly disproportionate” — a standard even weaker in practice than it sounds on paper. Under this rule, the Court has upheld decades in prison for stealing golf clubs and life in prison for stealing $230 and for possessing cocaine. As law professor Rachel Barkow said recently, “gross disproportionality” review “has effectively taken the judiciary out of the business of checking the state when it seeks to impose outrageously long punishments.” 

In using two different rules, the Court has sowed confusion about when each one applies. One might think that, as the Court said in one case, the stronger categorical rule would apply whenever a “case implicates a particular type of [punishment] as it applies to an entire class of offenders.” So just as it applied to people convicted of felony murder (a “class of offenders”) who challenged death sentences, it would also apply when that same class challenges life sentences without parole. 

But lower courts have ignored this logic, and artificially restricted the categorical rule to only the specific cases in which the Supreme Court has used it. Last year, the Colorado Court of Appeals refused to apply the categorical rule in a felony murder case for one reason: “neither the Supreme Court nor, apparently, any other appellate court in the nation has applied the categorical analysis to cases not involving either the death penalty or juvenile offenders.” (Since then, the federal Fifth Circuit Court of Appeals used the categorical approach to strike down Mississippi’s lifetime voting ban for people with felony convictions.)

State supreme courts, though, are well-positioned to resolve this mess, as they are free to chart their own course under their state constitutions. Indeed, a growing chorus of commentators have cited both the inconsistencies in 8th Amendment law and the futility of “gross disproportionality” as further reasons for state supreme courts to independently interpret state bans on “cruel” and/or “unusual” punishments. A recently published Iowa Law Review article, for example, argues that state supreme courts should completely reject the gross proportionality test, and that “the categorical ban framework is the approach that best fits with the power and responsibility of state courts interpreting their own constitution.” 

Right now, at least two state supreme courts have the opportunity to adopt this argument and ban life without parole sentences for felony murder. 

In Pennsylvania, 70% of the more than 1,100 people serving life without parole for felony murder are Black. One of them, a man named Derek Lee, has petitioned the Pennsylvania Supreme Court to rule that his mandatory life (or “death-in-prison”) sentence for felony murder violates the state constitution’s ban on “cruel” punishments. Lee’s petition argues that Pennsylvania’s constitution must be construed both independently from and more broadly than the 8th Amendment, and that “the categorical approach provides a useful baseline for interpreting Pennsylvania’s cruel punishments clause.” But under any standard, Lee argues, the complete disconnect between felony murder and any legitimate penological purpose renders his life sentence unconstitutional. 

Meanwhile, Wayne Sellers has made similar arguments to the Colorado Supreme Court, with one key addition. When Sellers was convicted of felony murder in 2018, state law mandated a sentence of life in prison without parole. But Colorado changed the law in 2021, and reduced the sentence for future felony murder convictions to a range of 16 to 48 years — affording both greater leniency and sentencing discretion. The change did not apply to Sellers, but the Colorado Supreme Court has already acknowledged that sentencing reforms are a key indicator of evolving standards of decency that are central to a categorical analysis. And a change to Colorado state law is especially salient to a Colorado state constitutional claim, underscoring the need for state supreme courts to break free from federal precedent. 


Sadik Baxter and his lawyers believe that his sentence violates the 8th Amendment, and are pursuing a federal habeas petition. There’s no question that lower federal courts — including the Eleventh Circuit Court of Appeals, where Baxter’s petition is pending — should apply the 8th Amendment more aggressively, and we are truly through the looking glass when permanently caging people for murders they didn’t commit is deemed “proportionate.” But state constitutional law provides a path to justice that doesn’t require reconciling multiple legal standards or morally bankrupt precedent upholding extreme prison terms for modest crimes. 

State supreme courts that take their constitutional obligations seriously should do what both common decency and the law demands: ban life without parole for felony murder.