Under the felony murder rule an individual can be charged with first degree murder for a killing that occurs during his or her participation in a robbery or other felony.1 Generally, the charge of first degree murder is distinguished from second degree murder by the element of premeditation. In felony murder cases, the premeditation requirement is satisfied if it is proven that the defendant intended to commit a robbery – an intent or plan to kill is not required. This means that an individual who commits an unpremeditated homicide – an offense which would usually be charged as second degree murder or manslaughter – is charged with first degree murder when the death occurs in the process of commiting a felony.
The felony murder rule can even result in a first degree murder conviction for an individual who did not commit a homicide but did participate in a felony in which a co-defendant caused a death. In at least five out of the 26 Nebraska cases where a youth was sentenced to life without the possibility of parole, the youth did not commit the fatal act.2
The Nebraska Supreme Court has consistently upheld that because the intent to commit the felony substitutes for the intent to kill, second degree murder and manslaughter are not lesser-included charges in felony murder cases.3 This means that for a jury trying a felony murder case, first degree murder is the only provided option. Due to the felony murder rule the most serious charge is applied in cases where a youth’s impulsivity and susceptibility to outside influences play a particularly large role.
The most serious charges carries with it the most serious sentence we can give a youth. A sentence of life without the possibility of parole is mandatory for a youth convicted of first degree murder. Like the juries, the judges in youth felony murder cases do not have the power to balance the need for accountability with the special considerations we give to youth. We know that as individuals grow out of adolescence, their vulnerability to outside influences and their tendency to act impulsively decreases. We also know that because of their incomplete development youth have a tremendous capacity for growth and change. When we sentence a youth to life without the possibility of parole, particularly in cases where the neurological immaturity of the youth was a prominent factor, we negate everything we know about the adolescent brain and the fundamental differences between youth and adults.
- Nebraska Revised Statute 28-303
- In three of the cases court records show that both the prosecution and the defense agreed that the youth had not committed the fatal act. The prosecution in the fourth case argued that the youth had fired shots, but the jury found the youth not guilty of assault with a deadly weapon (but guilty of first degree murder under the felony murder rule), citing their doubts that he was the shooter. There are several other cases in which the youth’s role as primary actor in the homicide is contested. All information presented on cases is drawn from court records and articles from the Omaha World-Herald and the Lincoln Journal-Star.
- State v. Hubbard, 211 Neb. 531, 319 N.W.2d 116 (1982). Cited in NRS 28-303
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