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The Lowdown

Charged With Murder Without Killing Anyone

The paradox of “felony murder” laws.

In 2012, four teenagers and their 21-year-old friend decided to burgle a house in their hometown of Elkhart County, Ind. No one in the group had any weapons, and they picked a house they thought was unoccupied. The homeowner was actually asleep upstairs — and armed. When the five kicked down the back door, Rodney Scott came downstairs and fired his gun, killing 21-year-old Danzele Johnson and hitting another in the leg.

The surviving members of the group, who came to be known as the “Elkhart Four,” were soon facing up to 55 years in prison for a murder they didn’t plan, intend, or commit. The sentences were the result of a complicated and controversial statute called “felony murder.” Most states have some version of a “felony murder” law in their criminal code. Such statutes allow for defendants to be convicted of murder — and in some cases face execution — if a death occurs because of a felony they commit, even if they were not the direct killer.

The Indiana Supreme Court overturned the murder convictions for three of the Elkhart Four last week, finding that “there was simply nothing about the appellant's’ conduct or the conduct of their cohorts that was clearly the mediate or immediate cause of their friend’s death.” (The fourth had plead guilty to the crime, and has filed his own petition.)

Defenders of the statute believe that such rules hold people accountable for the consequences of their crimes. "We don't really want people dying and sort of shrugging our shoulders and say, 'Oh well,'" Elkhart County Prosecutor Curtis Hill told the Indianapolis Star, as the court considered the Elkhart Four’s appeal. "Part of our justice system is to bring closure and completeness in terms of what happened, why it happened and what ought to be done."

From Drunk Driving to Heart Attacks

The felony murder rule has existed in some form the U.S. since the 19th century (many other countries, however, have abolished the law). In 1987, the Supreme Court ruled that certain cases of felony murder could merit a death sentence if the defendant showed a “reckless disregard for human life” and committed crimes that carried “a grave risk of death.”

Most states specify that the rule should only apply when deaths occur during specific crimes, like robbery or rape. Other states, including Georgia and Missouri, apply the statute regardless of the type of felony.

People can face felony murder under a variety of circumstances. Texas prosecutors, for example, have used the statute against repeat drunk drivers to upgrade manslaughter charges to murder. The charge has also been given to individuals who are far more tangentially involved. In 2011, a Florida prosecutor charged shoplifter Mervin Bettis with felony murder after a Target security guard collapsed and later died after struggling to handcuff him. Bettis pleaded guilty to third-degree murder in 2013 in exchange for a five-year sentence.

What Everyone Gets Wrong

Because of the intricacies of plea deals, appeals, and criminal histories, people convicted of felony murder can receive harsher sentences than those directly responsible for the killing. In 1996, Steven Hatch wasput to death for felony murder. He and a friend, Glen Ake, invaded a home in Oklahoma, raped the daughter, and tormented the family. Later, Hatch waited in the car as Ake shot the family and killed the parents. Ake appealed his capital sentence on the grounds that he received inadequate support for his initial insanity plea. His sentence was downgraded to life with the possibility of parole.

In 2009, Robert Thompson was executed in Texas on a felony murder charge. During a joint robbery of a convenience store, Thompson and his co-defendant Sammy Butler both fired shots at the two employees, but it was Butler’s bullet that ultimately killed one of the employees. Both shooters were eligible for the death penalty, but the two separate trials came to two separate conclusions, and only Thompson was sentenced to death, in part because of his criminal history.

Insider’s Perspective

Attorney Sarah Swain has defended two clients charged with felony murder in recent months in Kansas, where the crime carries a mandatory life sentence. Such cases, she says, require a different legal approach: Swain has to persuade jurors to not focus on whether her client is technically guilty of felony murder, but whether a life sentence is a fitting punishment for their indirect crime. “It’s up to you to convince jurors to act with their conscience and not their brain,” she said. “Attorneys don’t understand that jury nullification is about…[making] jurors see the unfairness of the situation.”

One of her clients, Kyler Carriker, was charged with felony murder after he helped arrange a marijuana deal at a friend’s house. The buyer turned out to be a gang member intent on robbery, and he shot Carriker and killed the dealer. A jury ultimately agreed with Swain’s argument, and found Carriker not guilty of murder, though he still faces prison time for the drug conviction. “You have to have jurors that are going to be able to put themselves in that position and think, ‘Jesus, what if that was me? Would I want to be held accountable for a murder I didn’t have anything to do with?’” Swain said.

The Debate Over Juveniles

Felony murder laws are especially controversial when it comes to children, because, lawyers and advocates claim, they can be easily manipulated into playing a role in an older offender’s crime. A 2005 report by Human Rights Watch and Amnesty International found that 26 percent of the juveniles sentenced to life without parole had been convicted of “felony murder.”

Supreme Court Justice Stephen Breyer recently weighed in on whether juveniles should be punished with life for such crimes. In a 2012 concurring opinion in Miller vs. Alabama, which found that mandatory sentences of life without parole for juveniles were unconstitutional, Breyer wrote, “[T]he kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.” Three amicus briefs in the upcoming Supreme Court case on the retroactivity of Miller ask the justices to consider outlawing such punishment for youth convicted of murder without killing anyone themselves.