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The Appeal Podcast: The Cruelty of Felony Murder Laws

With Appeal contributor Katie Rose Quandt.

Illustration by Simone Noronha

The United States is alone in the world in pursuing two modes of prosecution: giving life sentences to children under 18, and giving life sentences for murder to people who haven’t murdered anyone. Even if you didn’t pull the trigger, or even have prior knowledge of a crime, you can be treated as if you are a murderer if someone is killed in the course of committing a felony like robbery or carjacking to which you are an accomplice. Appeal contributor Katie Rose Quandt joins us to discusses why felony murder laws are unjust and how activists are pushing back against this uniquely American brand of cruel and unusual punishment.

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Adam Johnson: Hi, welcome to The Appeal podcast. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, Facebook at The Appeal magazine’s main Facebook page and please subscribe to us on iTunes. And if you haven’t and you’d like to, please feel free to review us and rate us. We always appreciate that. The United States is alone in the world in pursuing two modes of prosecution. Sentencing children under the age of 18 to life sentences and giving life sentences for murder to people who never murdered anyone. Even if one doesn’t pull the trigger or pull any trigger or have any prior knowledge of an intent to pull a trigger, they can be treated as if they did in most states in the US. Appeal contributor Katie Rose Quandt will join us today to discuss the problems with felony murder laws and how activists are pushing back against this uniquely American mode of cruel and unusual punishment.

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Katie Rose Quandt: There’s a lot of different ways someone can be charged with felony murder. For example, someone who was carrying out an armed robbery and the cashier had a heart attack and died. That robber could be charged with felony murder based on the underlying felony of armed robbery. So it’s basically just this one time when what you’re doing at the time when someone dies can just escalate everything up to first degree murder and so a lot of legal scholars are concerned because you don’t need to have intended it.

[End Clip]

Adam: Hi Katie, thank you so much for coming on.

Katie Rose Quandt: Hi. Thanks for having me.

Adam: So let’s start by setting the table here for our listeners about your work in this space. Now there’s two kinds of different threads which are uniquely American and I think to some extent uniquely punitive that you cover, which is something we’ve covered once in the show, which is the idea of life sentences for juveniles. Life sentences for people who are as young as 14, 15 who commit crimes, which is unique to the United States and it was until some court rulings over the last couple of years that have pushed back on that, which we can get into later. And the second mode is something we haven’t discussed at all that I actually found your reporting quite fascinating. The amount of cases this happens where someone is convicted of felony murder and sentenced to life in prison without the possibility of parole for being an accessory to a crime that later involves a murder. Can you talk about these two features of American justice system and how common they are in sort of general law or how uncommon they are?

Katie Rose Quandt: Yeah, sure. I think you’re totally right that this story that I wrote for The Appeal kind of centers on the perfect storm of like these two features of our criminal justice system, which as you said, are life sentences for children and also felony murder doctrines. And um, so for some time the United States, as you said, has been the only country that sentences children to life without parole and life without parole is like as extreme as it sounds. If you are sentenced to life without parole, you will die in prison. You’ll never have a chance at freedom. And so it was pretty common in the United States. A few years ago there were about 2,300 people serving life without parole for crimes that they were convicted of before the age of 18. And so as you were saying, the US Supreme Court has pushed back on this a bit with pretty major groundbreaking rulings in 2012 and 2016, which basically said (a) you can’t sentence children to life without parole as a mandatory sentence, you have to at least look at the individual case before giving such an extreme sentence to a child and (b) those 2,300 people who are already serving that sentence deserve a chance at a second look and a possibility at freedom. And so, um, there’s definitely some movement in that area, but the story kind of focuses on someone who fits into that group and his sentence is no longer constitutional, but he certainly is still incarcerated and they are still a lot of people waiting for their chance at a resentencing throughout the country.

Adam: So you do something in your article, which is always good, which is you put a human face to a broader problem. In this case, that face is that of then 15 year old Curtis Brooks, who is of course now much older, the case is about 22, 23 years old. Can you talk about his case and specifically what the jury was permitted to know and not allowed to know and how these sort of automatic sentencings really strip it of any kind of human touch at all? It’s sort of, the system is rigged to give hyper punitive sentences.

Katie Rose Quandt: Yeah, so my story is centered on Curtis Brooks, who was 15. He was abandoned. He was homeless and he was living in Colorado and he ran into some kids he sort of knew what the arcade one day and these kids were planning to do an armed robbery and steal a car and he agreed to go along with them. He took one of their guns, but their plan was never to kill anyone. But one of the teenagers, they were all teenagers, one of the boys shot the guy whose car they were stealing and killed him, and as a result, Curtis was charged with first degree murder. And the way that this works is through this rule called felony murder, which states that if you are committing a felony and someone dies, you can be charged with first degree murder regardless of whether you intended it or even were the one to carry out the murder.

Adam: Just to clarify, this is not common in other countries.

Katie Rose Quandt: No, it’s definitely not common in other countries and it’s the only time in the US criminal justice system where intent doesn’t matter. Like normally if you cause a death and the jury doesn’t believe that you intended to kill, then you’re not going to be charged with first degree murder. You’re going to be charged with manslaughter or some lesser charge, but felony murder is just sort of the exception and it allows people like Curtis Brooks to be treated as if they committed murder when really he was committing armed robbery in a group.

Adam: You quote one criminal justice scholar from University of Buffalo who says, quote, “The felony murder doctrine ‘is one of the most widely criticized features of American criminal law. Some have concluded that felony murder rules impose unconstitutionally cruel and unusual punishment by ascribing guilt without fault, or that they violate constitutional due process by presuming malice without proof.’” Can you expand on that a little bit for some of them are more laylisteners like myself?

Katie Rose Quandt: Um, yeah, well just basically, it’s the only time that someone can be charged with murder without intending to commit murder. So it’s not always an accomplice liability situation. There’s a lot of different ways someone can be charged with felony murder. For example, someone who was carrying out an armed robbery and the cashier had a heart attack and died. That robber could be charged with felony murder based on the underlying felony of armed robbery.

Adam: Jesus.

Katie Rose Quandt: So it’s basically just this one time, yeah, when what you’re doing at the time when someone dies can just escalate everything up to first degree murder. And so a lot of legal scholars are concerned because you don’t need to have intended it. And also it really affects a lot of teenagers because they’re more likely to commit crimes in groups. They’re more likely to be impulsive and maybe one of the group, will pull the trigger and it just kind of traps a lot of teenagers who were committing a crime, but certainly not a first degree murder, into getting these long life sentences.

Adam: So let’s go back to Curtis Brooks. He obviously, you tell a really interesting story about him, I won’t go into total detail, but he basically, while in prison was the model prisoner. Got his GED, he educated himself, coached basketball. One of the jurors on the trial, which you write, they didn’t realize lots of mitigating factors, including the fact that he had no prior criminal record, that he was, the whole thing was not even his idea. These were things that the defense wasn’t even allowed to present, which is extremely odd. And so one of the jurors took up his case and they, they sort of got close. Um, and there has been an effort to sort of overrule this, especially after the Supreme Court rulings of 2012 and 2016 on the matter respectively. Can we talk about what the efforts were to get him out and is there any appeal left or is he just on the mercy of the Governor of Colorado?

Katie Rose Quandt: Yeah, there’s a lot going on legally in his case. Um, but yeah, he totally was just, he kind of like buckled down in prison and got degrees and took classes and learned languages. And as you said, this juror who kind of could never get him out of his mind, went and visited him and was just blown away by the person that Curtis Brooks has become. And I talked to that juror and he, like you said, was horrified at the time when he and the other jurors found out that their guilty verdict meant life without parole for Curtis. They had no idea that that was the only mandatory sentence for him. But Curtis Brooks will probably not die in prison because of the Supreme Court rulings that said that life without parole sentence is unconstitutional. So over the last several years, his case has kind of changed repeatedly. So in 2016, he found out that he would potentially have a chance at resentencing as does everyone in his position across the country, but then in his particular case, Colorado decided to give all of these people serving life without parole for crimes they committed as juveniles shorter sentences, and they decided to give those who had committed felony murder, like extra shorter sentences. And when he tried to apply for that sentence, the DA argued against it and it ended up going to the State Supreme Court. So just recently, the State Supreme Court, I don’t know if this is, it’s pretty complicated, but the State Supreme Court decided that his case can move forward so he potentially could be released according to that shorter sentence. And then at the same time he has applied for clemency from the Governor and so he kind of has these two potential avenues that could lead to his release. But in the meantime it’s just still a waiting game for him as it has been for quite some time.

Adam: I rarely get shocked in this business, but I was shocked to read one paragraph in particular, and I’m going to read it word for word and I want to make sure that I’m not reading this wrong, and you told me if I am. “And this April in Alabama, Lakeith Smith was sentenced to 65 years in prison, including 30 for felony murder. In 2015, the then-15-year-old burglarized two homes with several friends. When the police approached, one of the teenagers fired, and was shot and killed by an officer. Smith was convicted of the felony murder of his friend, based on the felony burglary he was committing when his friend was shot.” Did I read that right? Did the cops shoot the kid after he was fired upon and then he was therefore?

Katie Rose Quandt:  Yes, yes.

Adam: Wow. That is mind boggling. I mean, that’s next level. So there doesn’t even have to be an antecedent felony murder. Obviously the cop wasn’t prosecuted for felony murder.

Katie Rose Quandt: Right. Well, so, Smith, the person who got convicted of felony murder, had the underlying felony of the burglaries he was committing with his friends. And that drew the attention of police and they got into a shootout and when the police officer shot his friend that escalated Smith’s burglary charge up to felony murder, even though he didn’t even have a gun.

Adam: Wow.

Katie Rose Quandt: Yeah.

Adam: That is. Wow. That is. That is. I think that may be the most American paragraph I ever read.

Katie Rose Quandt: There’s something else that’s going on there too, which is that he was originally offered, Smith was offered at 25 year plea deal, but he decided to exercise his right to trial and when he went to trial, suddenly all these charges escalated to a total of 65 years. So he was basically punished for going to trial.

Adam: Oh yeah. Getting punished for going to trial is its own episode and one I look forward to doing at some point, because we have covered the juvenile life sentences on the show before. The fact that juvenile sentences, life sentences are uniquely or there’s a, I think the numbers you had were roughly 40 percent of them tethered to this concept of felony murder by proxy because juveniles are more likely to commit crimes in groups and act impulsively is something that is a confounding factor here. I want to talk about the prosecutor who sort of had to have to justify this statute or justify the, the sort of principle behind the statute. And so their argument is that it, it disincentivizes felony crimes. Now you note that one study in 2002 found, they did an analysis of state level crime rates from 1970 to 1998 and concluded that the felony murder rule does not substantively improve crime rates. “If the main reason a state retains the rule is to reduce crime, it should consider the rule.” Unquote. So the study shows that this doesn’t even do that.

Katie Rose Quandt: Right. Yeah. It’s kind of like very hard to find good data on felony murder, including how frequently it’s charged because it’s just recorded as murder. Um, but also the effect that it has. And so this one study had attempted to do that and it compared states with felony murder rules and without felony murder rules because there are a handful of states that have gotten rid of these rules and it basically all the differences in crime were insignificant. It was like slightly more burglary, slightly less robberies, you know, it didn’t really, they concluded that it didn’t deter crime.

Adam: So let’s put this in moral context because I think one of the questions that comes up with a lot of listeners when they hear things that seem on their face egregious is that, what is the sort of logic that prosecutors have in pursuing these? Is there just a sort of institutional ethos to throw the book at everyone with maximum charges? Is it an issue of having the sort of cliches about having more arrows in your quiver to kind of pressure them to lean on other things? You know, if you’ve gotten a 15 year old with seven years in prison and perhaps you have, you can scare them into, you know, flipping on someone or something. Is it, is it about having a sort of excess or gratuitous amount of prosecutorial weapons?

Katie Rose Quandt: I mean, that’s, that’s how it seems to me when I was reporting this story that, you know, Curtis Brooks could have been charged as a juvenile for armed robbery or he could have been charged as an adult for murder and you can see which one he got and it just seems like there’s way too much discretion there in what the prosecutors could bring and the results that that will have on someone’s life.

Adam: Um, so what are the efforts now? So obviously there are people trying to highlight the felony murder. This has been something that activists have been working on for years. What groups and what organizations, you note Amnesty International, Human Rights Watch, what, what groups are working to draw attention to this and how much traction if they had on a state level? I mean obviously there isn’t, you know, state level is really where the, where the rubber hits the road in terms of criminal justice, right? Is there any kind of organized campaign to push back against this that you can speak to?

Katie Rose Quandt: Yes, there’s different state level movements to try to reform felony murder rules and the one that’s getting the most attention now because it’s really been making some exciting progress is this group called Restore Justice, in California. And they’re an advocacy group that’s pushed really hard to try to get a bill passed this session that would end the accomplice liability aspect of felony murder in the State of California. And if that bill passes, it will stop future instances of accomplice liability, felony murder, and it will also give the people who are currently in prison for it, a chance at resentencing. Um, so that’s like a pretty major group that’s pushing for it. And I think there’s also a bill in Pennsylvania, but it’s, as you said, it’s very state by state.

Adam: I’m always sort of curious what the mechanisms are to push back against these forces because there does seem to be a kind of mindless punitive attitude, especially in states like where I’m from in Texas, where it’s sort of, you know, throw them all in a cage and forget about them later.

Katie Rose Quandt: Yeah, I mean, I don’t want to overlook a group that’s been doing work on this. I know that there are certainly have been ACLU reports that sort of thing about felony murder, but it seems to mostly be a local fight.

Adam: Well, great. This was extremely informative. Katie, thank you so much for coming on. I really appreciate it.

Katie Rose Quandt: Yeah, thanks so much.

Adam: Thank you to our guest, Katie Rose Quandt, a contributor to The Appeal and writer. This has been The Appeal podcast. Remember, you can check us out on Twitter @TheAppealPod, you can check out The Appeal magazine’s main Facebook page, which you really should do because they have a ton of great content on there. The show was produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I am your host Adam Johnson. Thank you so much. We’ll see you next week.