You can be convicted of murder even if you haven’t killed anyone?

Imagine being jailed for nine years while you are still awaiting trial and then… you’re suddenly free to go. That’s what happened to California defendant, Neko Wilson. Wilson was facing the death penalty for a couple’s deaths in which he allegedly helped plan the defendants’ robbery. [1] Wilson’s release came as a result of California passing and enacting Senate Bill 1437. This law retroactively prohibits sentencing a defendant who did not commit homicide, nor could have foreseen that one occurred, similarly as a defendant who committed the homicide itself. [2]

With Senate Bill 1437, California narrowed its felony murder rule: a legal doctrine, originating from English common law, which holds defendants criminally liable for a murder—even if they did not kill nor intend to kill—if they participated in the underlying felony. [3] Given that this is common law legal doctrine rather than a federal statute, application and scope of the felony murder rule varies by state. Compared to other nations that practice common law, the United States is the only modern country that uses the felony murder rule. [4] Yet this rule seemingly violates the 8th amendment of the US Constitution, especially when used to sentence the death penalty.

Federal jurisprudence regarding the relationship between the felony murder rule and capital punishment derives from two U.S. Supreme Court cases: Enmund v. Florida (1982) and Tison v. Arizona (1987). In Enmund v. Florida, the court banned the death penalty for those tried under felony murder, due to it violating the 8th amendment: “Neither deterrence of capital crimes nor retribution is a sufficient justification for executing petitioner.” [5] However, the Supreme Court modified their position in their Tison ruling. The Court allowed the death penalty for those tried under this rule if they played a “major” role in the underlying felony, even without intent to kill. [6] The Court also held 8th amendment does not prohibit the death penalty for a defendant who mental state is “one of reckless indifference.” [7] The only caveat is Roper v. Simmons (2005), in which the Supreme Court decided juveniles convicted for felony murder cannot be executed—a milestone given that the felony murder rule disproportionately affects juveniles of color.

 California State Sen. Nancy Skinner, who wrote Senate Bill 1437, claims that the felony murder rule disproportionately criminalizes young Blacks and Latino males. [8] Demographic statistics from U.S. Department of Justice bear out this racial disparity in crimes involving property and theft— common underlying felonies in felony murder cases. In 2017, Black and Hispanic juveniles comprised 60 percent of those convicted of theft, 67 percent for burglary, or 84 percent for robbery, and 75 percent for criminal homicide. [9] Similar to race, age is another factor that demonstrates how prosecutors apply the felony murder rule inequitably.

Though proponents argue that the felony murder rule deters crime, it fails to because juveniles are not fully developed mentally: the part of the brain that controls decision-making, the prefrontal cortex, does not finish developing until their mid-twenties. [10] This cognitive perspective partly informed the Roper decision. According to the University of Pennsylvania Law Review, the U.S. Supreme Court banned the use of capital punishment on juveniles as a cruel and unusual punishment because it “recogniz[ed] that the developmental differences contributed to culpability.” [11] The rationale in Roper later informed the ruling in Jackson v. Hobbs (2012), which prohibited mandatory life without parole sentences for juveniles convicted of homicide. The case’s petitioner, Kuntrell Jackson, was prosecuted at age 14 for his cousin’s killing under the felony murder rule. [12] In both cases, the Supreme Court used this psychological framework to invalidate harsh sentences of juveniles as violations of the 8th amendment. This framework should be used to abolish the felony murder rule for juveniles, as it is often the root cause of the harsh sentencing.

“[Jackson] did not pull the trigger, only became aware that his accomplice had a gun right before they entered the store, and did not contemplate use of the gun as evidenced by all three companions fleeing the scene without taking any cash,” said the Legal Information Institute in analysis of the 2012 Supreme Court case. “Jackson contends that imposition of life-without-parole sentences on felony-murder juveniles would not further the purposes of that doctrine when juveniles, as a group, are inherently less likely to be aware of additional dangers during the commission of a felony.” [13]

Jackson’s story was unfortunately commonplace, as approximately 26 percent of juveniles serving life without parole were convicted under felony murder in 2008. [14] Like Jackson, many defendants convicted under the felony murder rule, regardless of age, never considered that a death would occur during the original crime. And yet, prosecutors ignore the context in which the underlying crime occurred. Prosecutors could easily argue that someone who provided the getaway car—regardless of whether they knew about the main perpetrator’s intentions—played a key role in the execution of the underlying felony, like armed robbery. Thus, the participant pays for a death they did not foresee.

The case of black teenager Lakeith Smith exposes this rule for its self-contradictions. In 2015, Smith was sentenced to 30 years in Alabama state prison for the death of his friend A’Donte Washington, who was shot and killed by a police officer when he, Smith, and three other co-participants were committing a burglary. This case is particularly egregious because the police officer will face no consequences for killing Washington because a grand jury ruled it a justifiable homicide. Legal advocate Kent Scheidegger argues that Smith should not have been charged with felony murder if the killing itself was legal: “You can’t be an accessory if there is no principal [crime].” [15]

Regardless of the defendant’s age, the United States should eliminate felony murder rule due to its application blurring the lines between civil and criminal standards of liability. Several legal scholars have compared the legal underpinnings of the felony murder rule to strict liability, a civil standard in which a defendant is held liable without regard to their intent to harm. [16] The Tison ruling’s language mirrors this civil standard, as the Court refers to the defendant’s “reckless indifference” and “reckless disregard for human life” as sufficient basis for a defendant to be charged. [17] Because prosecutors can apply a civil standard of negligence to pursue a criminal conviction for murder—which requires that a jury finds the defendant guilty beyond a reasonable doubt, legal scholars argue that the felony murder rule inherently violates the 14th Amendment’s Due Process clause. [18] The rule’s legal underpinnings contradict each other, and this flaw can only be resolved through an outright ban.

Banning the felony murder rule carries practical benefits for our judicial system as well. Re:store Justice, a California-based nonprofit advocating for criminal justice reform, argues less culpable co-defendants “will now have an incentive to talk and tell the truth about what happened.” [19] In practice, eliminating the felony murder rule could make police interrogations far more productive. As of now, four states have completely abolished the legal doctrine. In California, the retroactive portion of S.B. 1437 includes the added benefit of reducing the state’s prison population, as much as 72 percent of women serving life sentences alone could be resentenced or released. [20] 

In a truly just legal system, people are held to account for the deeds that they committed; the felony murder rule fails that basic principle. California serves as a case study for rectifying the felony murder rule and other anti-crime initiatives. This rethinking in the legal thought direct our criminal justice system towards rehabilitation instead of punishment. State legislatures must narrow their definition of murder and prosecutors should stop using the felony murder rule for its racially disparate impacts. Until the U.S. Supreme Court reviews its Tison ruling, activists should continue challenging the felony murder rule in state courts for its inconsistent standards of culpability and contradictions with the 8th amendment.

[1] Vansickle, Abbie. “California Law Says He Isn't a Murderer. Prosecutors Disagreed.” The New York Times. The New York Times Company, May 16, 2019. https://www.nytimes.com/2019/05/16/us/california-felony-murder.html. 

[2] Ibid

[3] Vansickle, Abbie. “If He Didn't Kill Anyone, Why Is It Murder?” The New York Times. The New York Times Company, June 27, 2018. https://www.nytimes.com/2018/06/27/us/california-felony-murder.html.

[4] Ibid

[5] Enmund v. Florida, 458 U.S. 782 (1982)

[6] Ibid

[7] Tison v. Arizona, 481 U.S. 137 (1987)

[8] Vansickle, Abbie. “California Law Says He Isn't a Murderer. Prosecutors Disagreed.” The New York Times. The New York Times Company, May 16, 2019. https://www.nytimes.com/2019/05/16/us/california-felony-murder.html.

[9] Office of Juvenile Justice and Delinquency Prevention. Census of Juveniles in Residential Placement 2017 [machine-readable data files]. Washington, D.C.: OJJDP.

[10] “Understanding the Teen Brain .” University of Rochester Medical Center. University of Rochester. Accessed October 22, 2019. https://www.urmc.rochester.edu/encyclopedia/content.aspx?ContentTypeID=1&ContentID=3051.

[11] Flynn, Erin H. "Dismantling the Felony-Murder Rule: Juvenile Deterrence and Retribution Post-"Roper v. Simmons"." University of Pennsylvania Law Review 156, no. 4 (2008): 1049-076. http://www.jstor.org/stable/40041400.

[12] Chang, Angela, and Tian Wang. “Jackson v. Hobbs (10-9647).” Legal Information Institute. Legal Information Institute, July 9, 2012. https://www.law.cornell.edu/supct/cert/10-9647.

[13] Ibid

[14] Flynn, Erin H. "Dismantling the Felony-Murder Rule: Juvenile Deterrence and Retribution Post-"Roper v. Simmons"." University of Pennsylvania Law Review 156, no. 4 (2008): 1049-076. http://www.jstor.org/stable/40041400.

[15] Lartey, Jamiles. “Alabama Police Shot a Teen Dead, but His Friend Got 30 Years for the Murder.” The Guardian. Guardian News and Media, April 15, 2018. www.theguardian.com/us-news/2018/apr/15/alabama-accomplice-law-lakeith-smith.

[16] Vansickle, Abbie. “California Law Says He Isn't a Murderer. Prosecutors Disagreed.” The New York Times. The New York Times Company, May 16, 2019. https://www.nytimes.com/2019/05/16/us/california-felony-murder.html.

[17] Tison v. Arizona, 481 U.S. 137 (1987)

[18] Nelson E. Roth; Scott E. Sundby, "Felony-Murder Rule a Doctrine at Constitutional Crossroads ," Cornell Law Review 70, no. 3 (1984-1985): 446-492

[19] “Sb1437 - Re:Store Justice.” Re:store Justice, January 25, 2019. https://restorecal.org/sb1437/. 

[20] Vansickle, Abbie. “If He Didn't Kill Anyone, Why Is It Murder?” The New York Times. The New York Times Company, June 27, 2018. https://www.nytimes.com/2018/06/27/us/california-felony-murder.html.