A Deadly Bias: First-Time Offenders and Felony Murder

Serena Marie Kurtz, Barry University

Abstract

Capital punishment is strongly rooted in the United States. The Supreme Court has recognized that if capital punishment were to be removed as a form of punishment that the people would move to self-help situations. Although strongly rooted, most people feel that the persons most deserving of the death penalty are the “worst of the worst.” However, the unfortunate reality is that first-time offenders make up a large portion of the death row inmates, and many of those are guilty of felony murder.

Today’s capital punishment schemes are biased towards first-time offenders who are convicted of first degree murder under the felony murder rule. All three of the death penalty schemes currently in use allow for the elevation of the charge for killing someone during the commission of a crime to be elevated to first degree murder under the felony murder rule. This elevation makes the offender eligible for the death penalty. Although the felony murder rule by itself is not biased against the first-time offender, two of the three statutory schemes also include an aggravating factor that creates the bias. These statutory schemes allow for the elevation of the crime from a lesser degree to first degree felony murder and then to use the same felony as an aggravator in the penalty phase of the trial. This double use of the felony is what causes the capital punishment schemes to be biased towards the first time offender.

This article attempts to identify some of the problems and possible solutions, in order to eliminate the bias against the first-time offender convicted under the felony murder rule.