The Felony Murder Rule As A ‘Representation Of What’s Wrong In Our Criminal Legal System’

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Last month, a man in Lake County, Illinois, shot and killed a 14-year-old boy. The boy, who was Black, was one of six teenagers accused of trying to steal a car out of the man’s driveway late one night. The man, a white 75-year-old, said he fired shots out of fear. He was not arrested or charged in the boy’s death.

Instead, the Lake County state’s attorney charged all five surviving teenagers with first-degree murder. And his request that they be held on $1 million bail was granted.

This charging decision was made possible by Illinois’s expansive felony murder law. The law makes any member of a group liable for any killing, including of an accomplice, during the commission of an offense. The result is vast charging latitude for prosecutors. A conviction carries with it the guarantee of an extreme sentence, even life without parole, including for children. Because adolescents tend to act in groups, the felony murder law makes young people uniquely susceptible to its reach.

The United States is an outlier in its continued use of the felony murder doctrine. Forty-four states and Washington, D.C. have felony murder laws on the books. There have been efforts underway to do away with these laws, including in California, where a law passed last year severely limited the reach of the felony murder rule. The version in place in Illinois, like in 17 other states, is the most extreme, making someone who made no attempt to hurt anyone liable for murder.

This is not the first time the state’s felony murder law has attracted criticism. But this time, the convergence of dedicated activists and a steady drumbeat of media attention forced the prosecutor to reconsider. On Thursday, State’s Attorney Michael Nerheim announced that he would withdraw the murder charges. The 18-year-old charged will be charged with conspiracy to commit burglary and criminal trespass to a motor vehicle and is expected to plead guilty next week. In his announcement, the prosecutor, who is seeking re-election next year, said he still believed the facts of the case made murder charges appropriate, but after speaking with the victim’s family and the defense attorneys, had decided to amend the charges. The four children who are under 18 had their cases transferred to juvenile court. All five remain in custody, either in adult jail or in juvenile detention.

The fact that these children will not face decades-long sentences, or even life in prison, for their cousin and friend’s killing is a relief. But they never should have been charged with murder in the first place. The felony murder rule did not mandate the charges in this case. It just does what too much of our criminal legal system does and places inordinate power in the hands of prosecutors. In this case, Nerheim could have charged the five teenagers with burglary-related charges (as he eventually did). He could have considered their youth, that they had already experienced the death of their cousin and friend, and not charged them at all. He could have waited, given them a chance to recover and mourn, and then decided. He could have not sought bail and allowed them to be released, to go home to their families. Instead, he requested that they be held on an impossible-to-pay amount, keeping them in custody. And he made a decision after little investigation or deliberation to charge them with first-degree murder.

I spoke with Jobi Cates of Restore Justice, an organization that advocates the passage of House Bill 1615, which would drastically limit the felony murder law in the state. The organization also played a key role in the effort to keep the teens in this case from being charged with murder.

Cates spoke of the campaign against the felony murder law, efforts to persuade lawmakers to support HB 1615, and our societal response to problematic behavior.

“When every single problem has a criminal justice response, from domestic violence to burglary to car theft to murder … they all use the same basic set of tools that are available to us as a society and those tools are all rooted in the criminal justice system right now,” she said. “The only thing that many legislators think they can do is ratchet up punishment because it’s the only thing at their fingertips, it’s the only thing being proposed, and it’s the only thing that feels like an adequate response to something that’s really truly terrible or scary in our society.”

Cates pointed out that the logic of the felony murder law—that it acts as a deterrent—is not backed by evidence. “So OK, well, we want to scare the bananas out of these kids so let’s charge them with felony murder. Does that work? No. Is it rational? No. Is it line with any of the research about brain development? No. Is it in line with any of the research about recidivism or criminal activity initiation? No. But that’s the go-to response that we have.”

The effort to restrict the felony murder law, she said, is one among many to limit the reach of the criminal legal system. “We’re trying to take that tool out of the toolbox,” she said. “And the fewer tools we have in the toolbox, maybe the more we’ll have to invest in some tools that might actually work for achieving community safety.”

Marshan Allen of Restore Justice also weighed in on the connection between the felony murder law and the broader failures of the legal system. Allen has been active in youth justice advocacy in Illinois since his own release from prison in 2016. He was convicted of felony murder and sentenced to life without parole as a 15-year-old. He was eventually resentenced and released after the Supreme Court decision in Miller v. Alabama. But he spoke of the men he met while incarcerated, who had also gone to prison in their teens and 20s, and how they never got the second chance that he got. Allen described the felony murder law as a “representation of what’s wrong with our criminal legal system … that it’s not about justice, it seems that it’s more about punishment, about retribution, not trying to figure what harm was done and how the harm can be repaired.”