What makes a murderer? Intent is often assumed to be a factor. But, for hundreds of years, the felony-murder doctrine has muddled this conceit, writes Sarah Stillman in The New Yorker.
In 1716, the legal theorist William Hawkins argued
that a crime like robbery “necessarily tends to raise Tumults and
Quarrels . . . and cannot but be attended with the Danger of
personal Hurt.” Any resulting death, he posited, was tantamount to murder. Such
notions began being applied in British courts later in the eighteenth century,
and, almost from the beginning, Britons were questioning whether the
felony-murder doctrine was just.
The question came to a head in 1953, when, despite
widespread pleas for clemency, a nineteen-year-old Londoner named Derek Bentley
was executed because his sixteen-year-old accomplice in a burglary killed a
policeman during the crime. Four years later, the U.K. abolished the doctrine,
and other Commonwealth nations followed suit. The United States, meanwhile,
went in the opposite direction.
According to Guyora Binder, of the University at
Buffalo School of Law, the modern felony-murder doctrine is best understood as
“a distinctly American innovation.” Although it was first applied early in the
nineteenth century, use of the charge surged in the nineteen-seventies, when
the era of mass incarceration began. Fifty years later, Binder contends, no
country relies on the doctrine more.
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. Deemed too young to enter the adult prison population after
her conviction, she was placed in solitary confinement for months, purportedly
for her own safety. In Somerville, Tennessee, last May, three teen-age girls
overdosed on fentanyl in their high school’s parking lot before a graduation
ceremony. Two of them died, and the surviving girl was charged with murder.
For prosecutors, the felony-murder rule offers an
efficient path to conviction: winning a case is much easier if you don’t need
to prove a person’s mens rea—“guilty mind”—or even, in some cases, to establish
that the accused was at the scene of the crime. Forty-eight states now have
some version of the statute. Charlie Smith, the president of the National
District Attorneys Association, told me that the tool is particularly useful in
cases with vulnerable victims, such as an elderly woman in a wheelchair who
gets assaulted in a purse-snatching incident and dies. “The community would
feel it’s not reasonable if the old lady’s death was just a simple misdemeanor
assault,” he said. Prosecutors often employ felony murder when a death results
from an armed robbery—a category of crime that Smith contends, in the spirit of
Hawkins, carries death as a foreseeable outcome.
Another benefit to prosecutors is that the steep
penalties often attached to felony murder—including life sentences—compel
defendants to plead guilty to a lesser charge. “We shouldn’t underestimate how
many plea bargains occur in the shadow of felony-murder charges across the
country,” Ekow Yankah, a law professor at the University of Michigan, told me.
“It is one of those quiet drivers of mass incarceration we never acknowledge.”
Remarkably, no one knows how many people in the
United States have been imprisoned for the crime. So in 2022, working with
students and colleagues at the Yale Investigative Reporting Lab, I decided to
try to get a sense of the scale. We started by filing public-records requests
to state corrections departments and other agencies across the country; to our
surprise, most told us that they weren’t keeping track. “The records do not
exist,” an official at the Virginia Department of Corrections wrote, in a
typical response. In most states, a felony-murder conviction gets lumped in
with other types of murder, clouding the data. It was as if the extent of
felony murder in America were hidden by design.
To identify cases in other states, we worked with
analysts at the nonprofit organization Measures for Justice, and with several
law-school clinics, to obtain previously unpublished data. Thus far, we’ve
documented more than ten thousand felony-murder convictions nationwide. We’ve
also scoured trial records, appeals, and news clips, finding and scrutinizing
more than two hundred cases, like Baxter’s, in which the defendant neither
killed nor intended to kill the victim. Women were sometimes charged for
driving getaway cars for abusive partners, or performing other tasks under
duress; some of the women served longer jail terms than their partners who’d
committed the killing. And, time and again, young people were prosecuted for
what an acquaintance, to their shock, had decided to do. In the past two years,
I travelled from Alabama to California to Michigan to meet some of the
individuals who have served time on the charge—along with crime victims’
families, prosecutors, public defenders, and others—to consider how a doctrine
so widely critiqued, and rejected elsewhere in the world, has proved stubbornly
resilient in the United States.
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