By: Jikky Thankachan, Member-Candidate, J.D. Candidate, May 2020, St. Thomas University School of Law.

At just sixteen years old, A’Donte Washington was shot four times and killed by an anonymous police officer. The officer will face no consequence for this murder, but another person will. Washington’s friend Lakeith Smith, who was only 15 at the time of his friend’s death, is spending 65 years in prison for Washington’s death.

Smith isn’t the one that shot Washington but was the one punished for his death. How? Through Alabama’s “accomplice liability” law. This law permits the state to pursue a charge of murder if someone is killed during the execution of a crime. Even if the person charged is not the one who did the killing. Washington was killed in February 2015, while he and a group of his friends were breaking into a house. Essentially, Smith will be spending 30 of his 65 years in prison solely because he was present when a police officer murdered his friend.

Smith is not the only one in his predicament. There’s Justin Doyle and Cody Moore, who were charged with murder when one of their friends was shot while breaking into a seemingly unoccupied house unarmed. There’s Ryan Holle, who lent his car to a friend who then used that car to drive two others to commit a burglary. A woman died during this burglary, and Holle who was more than a mile away from the crime was convicted of first-degree murder. My point is, none of these are isolated occurrences; rather they are the unfortunate norm across the country.  

The felony murder rule has its origins in English common law. However, in 1957 the English rightfully abolished this archaic rule. When the law was first created in England, all felons regardless of crime faced the death penalty. Currently, sentencing for felonies lives on a spectrum based on the severity of the crime and the defendant’s involvement with crime in the past. Intuitively, a crime like first-degree murder has a harsher punishment than a crime like burglary. The felony-murder rule completely ignores this major difference; therefore it now faces increasing criticism from scholars in the legal field.

India, Canada, and other common law countries abolished the felony-murder law following England. The United States remains the only country where the felony murder rule still thrives. When the Michigan Supreme Court abolished the rule in that state, the court said it was “a historic survivor for which there is no logical or practical basis for existence in modern law.”

The key problem with the felony murder rule is that it completely evades the mens rea requirement necessary for criminal liability. Mens rea literally means “guilty mind”, and it is so crucial to our criminal justice system that the only exceptions to the mens rea requirement are felony murder and strict liability law. In 2018, there is no excuse for felony murder to be treated the same as other crimes that require mens rea or intent. There is no reason a prosecutor should be absolved of their duty to prove beyond a reasonable doubt of willfulness that the defendant acted with the intent to cause the murder at issue.

Not only is it egregious, but it is irresponsible and inconsistent of our justice system to treat the intent to commit a burglary the same as the intent to murder someone. Especially when another party is the one that does the killing, as is often the case. Under this law, individuals (including juveniles) are rottingaway in jail cells for crimes they did not actually commit.

Proponents of the felony murder rule cry that it acts as a deterrent for individuals to commit felonies, however, legal researchers at UC Berkeley found there to be no decrease in felony rates for states that adopt the felony murder rule. Furthermore, punishing criminals for the outcome of their crimes rather than their intent is subtractive of our criminal justice system and sets a dangerous precedent in the law.

Felony murder is not our only option. California is currently flirting with the idea of abolishing the felony murder rule. In Hawaii and Kentucky, legislatures have already abolished the rule. Massachusetts and Michigan put an end to this practice through the court system. The Pennsylvania Legislature is currently weighing a bill with the purpose of reeling in the practice.

I understand the need to punish criminals for their wrongdoings, but there are ways to do this that do not infringe on the ideals of autonomy and accountability that us Americans treasure dearly.

A possible solution might be creating a felony- manslaughter statute. Manslaughter is defined as an unlawful killing that does not involve malice aforethought i.e. the intent to seriously harm or kill, or extreme, reckless disregard for life. When malice aforethought is not present, this means that there is less moral wrongdoing than is associated with first or second-degree murder. This is exactly what happens in a felony-murder situation where the intent to kill is not present. Creating a felony-manslaughter statute would hold criminals accountable for their crimes, but it would also allow them to be charged and sentenced in a more reasonable manner. Furthermore, it would serve as a deterrent to those who are considering felonies. We live in an age of mass incarceration, alarming recidivism rates, and a criminal justice system that often foregoes justice to those who deserve it. I agree that criminals should be punished for their crimes, but they should not be punished for the crimes of others. A law that shallowly draws a parallel between deliberate murderers and an unarmed teenage burglar is not conducive to justice, does not align with the Constitutional rights we so, fortunately, call our own and should be done away with by any means necessary.