Malice Murder vs. Felony Murder – Georgia
Georgia is one of the easiest states to be legally convicted of murder. There are two types of murder in Georgia. Malice murder (meaning intent is required) and Felony murder (no intent needed). Both carry the same penalty upon conviction. Lastly, unlike what we see in the media, Georgia also does not require premeditation for a murder conviction.
Malice murder (aka an intentional murder), requires the prosecutor to prove there was specific intent to kill. Felony murder does not require any intent to kill.
What makes felony murder so prosecutor friendly is that it requires less proof but has the same punishment as its counterpart. Yes, that’s right, a crime that does not require intent to kill has the same punishment as a serial killer. Georgia technically has three homicide charges, but one of them—second-degree—is only applicable in very limited situations that involve the death of a child. So, that leaves two charges for prosecutors to choose from—malice murder and felony murder.
Georgia is one of sixteen states that does not have multiple degrees of murder. Other states have multiple ways to charge a defendant depending on the circumstances of the murder. The facts of each case are important because someone who does not have an intent to kill should not be punished the same as someone who kills with malice, intent, or premeditation. This is understood across the world, but the United States is still the only country in the world where the felony murder rule still exists.
Forty-four states still have some version of felony murder on their books. Georgia’s version has draconian undertones as it relates to the level of proof needed and the mandatory sentence. I will give you an example of how bad Georgia’s felony murder rule is. In Georgia, Bob and Ed go buy heroin to get high together. At the request of Ed, Bob injects some of the heroin into Ed’s arm. And similarly, at the request of Bob, Ed injects some of the heroin into Bob’s arm. However, Bob overdoses and dies. Ed is arrested, charged, and convicted of felony murder. Now Ed will spend the rest of his life in prison because he was committing a felony (the sharing of a needle can be deemed drug distribution) that led to a death. Ed had no intent to kill Bob, but that does not matter in Georgia.
The felony murder becomes more malicious when it is a murder the defendant did not commit. For example, in Illinois, a defendant and his friend robbed a sandwich shop. The friend ran from the police; the officer chasing the friend shot him. The friend subsequently died from the gunshot. The defendant was charged with armed robbery and for his friend’s murder under the felony murder rule since the death stemmed from the commission of the felony of armed robbery. Let that sink in. The defendant was charged with the murder of his friend, even though the officer is the one who killed the friend.
The Illinois case set the groundwork for reform of the felony murder rule. Illinois changed the felony murder in 2021 to prevent unjust punishments. California is currently attempting to reform the unreasonable sentences of felony murder. However, opponents of the reform are pushing back. Opponents of the bill, mainly law enforcement groups, argue that the severe punishment serves as a deterrent to discourage individuals from committing serious, dangerous felonies. This argument would only make sense if the individuals attempting to commit those crimes know that they could be charged with felony murder even if they did not have any intent for someone to die. Also, serious violent felonies already have a deterrence value with the statutory punishments in place. For example, in Georgia, a lot of serious violent felonies have a minimum of 25 years and a maximum of life in prison.
While it is unfortunate when there is any death involved, a person should not go to prison for their entire life for something they had no intention of doing. The other problem is that juries will acquit on malice murder but find guilt on felony murder thinking that they are doing the defendant a favor because the jury thinks that felony murder is a lesser charge with less punishment. The jury’s logic is accurate; any non-attorney would think that the punishment for felony murder—which has no element of intent—would surely be less than the malice counterpart—which must show intent. But Georgia law prevents attorneys from explaining this to a jury.
Recently in Douglas County, GA, a jury acquitted a defendant of malice murder and felony murder. One of the major factors for the jury was that they got to hear evidence that the co-defendant who “flipped” and testified at trial received a plea deal. The plea deal dismissed the murder charges including felony murder. The defense attorney did an excellent job of questioning the co-defendant about how the witness avoided a life sentence on the felony murder by accepting the State’s plea deal to testify. The defense attorney showed the jury through the questioning that felony murder equals a life sentence in prison—the same sentence as if found guilty of malice murder.
The only way to avoid these harsh punishments is for the Georgia legislature to remove felony murder from our statutes and replace it with multiple degrees of the crime, such as first-, second-, and third-degree. Each degree will have different punishment ranges, each correlating to the facts and circumstances of the case. Creating degrees will give a jury more options to precisely find the right charge to convict based on the evidence. Also, it seems clear that punishment levels will decrease as the degree of the crime decreases (first-degree would be equivalent to malice, second-degree would less harsh, and third-degree would be even less so).
Georgia should follow the growing trend across the country—and across the world—and reform its felony murder. Even if degrees of murder are not established, the State should at least take baby steps in the right direction and modify the felony murder rule like Illinois did.
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