top of page

Using a "Bad" Law for Good?

I was sitting in my criminal law class during my first semester of Harvard Law School when I was introduced to the concept of felony murder.

“You can be found guilty of murder without actually killing anyone,” I remember my professor beginning her discussion.

The felony murder doctrine expands the conventional scope of murder. Felony murder applies when someone commits a certain kind of felony (typically those categorized as “inherently dangerous”) and someone else dies in the course of that felony. If so, any offender involved in the felony can face murder charges. It generally does not matter if the death was accidental or if the offender did not even do the actual killing.

One illustrative example is often presented to law students: Imagine two people, Amy and Bob, have agreed to rob a liquor store. Amy will be the getaway driver and park outside the store while Bob goes inside to demand the money. Bob is using a BB gun instead of a real firearm and promises Amy that he has no intention of harming anyone inside. But, during the commission of the robbery, the elderly store owner is so frightened by Bob that he suffers a heart attack and dies. Both Amy and Bob can face murder charges.

Real-world defendants have been charged with murder under similar fact patterns. In 1982, a man was convicted of murder after the owner of the home he was burglarizing died of a heart attack. In 2018, a getaway driver was convicted of murder charges after her three accomplices to a home burglary were shot and killed by the homeowner. To implicate felony murder, the requisite death need not be from a victim; any death can suffice. The woman was ultimately convicted of the murders of all three of her accomplices.

The felony doctrine is one of the most widely criticized features of American criminal law. For decades, significant activism has targeted the repeal of these laws. Legal scholars have routinely urged their abolition, while prominent media outlets consistently excoriate the laws as unjust. Organizations such as the The Felony Murder Elimination Project highlight the unfair impact on young minority populations. Indeed, data shows that African American and Hispanic first-time offenders comprise the overwhelming majority of defendants affected by these laws. Petitions have been signed and legislation has been passed in an effort to scale back felony murder laws. Most recently, California passed a new law in 2018, spearheaded by a Democratic Senator from Berkeley, that severely limited the reach of its felony murder rule.

Today, the United States is the only country in the world that follows the felony murder doctrine, with 44 states still including such laws in their legal codes.

Minnesota is one of those states.

On Tuesday, the nation held its collective breath as Derek Chauvin was found guilty of all charges, including the highest charge: second-degree murder. Importantly, the second-degree murder conviction was only achieved because, pursuant to Minnesota statute, felony murder qualifies as second-degree murder. In Chauvin’s case, prosecutors successfully argued that he was committing an aggravated assault against George Floyd (by placing his knee on his neck), which formed the predicate felony that resulted in a death.

Put another way, without the felony murder doctrine, the most severe penalty levied upon Chauvin would have never manifested.

Georgia is another state that practices felony murder. In connection with the shooting death of Ahmaud Arbery in Satilla Shores, Georgia in February 2020, the shooter, Travis Michael, and his father, Gregory McMichael, have been charged with murder. Under Georgia law, murder can be committed in only two ways, either with intent or via felony murder. As seen in the arrest warrants, the Michaels were specifically charged under the felony murder provision of the murder statute. This is likely for good reason. Proving intent here would have been a dicey bet when faced with a rural and largely conservative jury. Right or wrong, the defense at trial would have vigorously argued that the actual intention of the McMichael's was to stop Arbery and effect a citizen’s arrest—not to kill him. Without felony murder, murder charges against the Michaels would have likely never materialized (leaving only the lesser manslaughter as an option).

A subtle—but noticeable—shift has thus recently emerged. Felony murder, typically derided by progressive thinkers as racially biased and unjust, has become the justice system’s mightiest sword in prosecuting the killers of two unarmed Black men. Those in the legal field should pause to ponder the effect of using this “bad law” for good. By promoting its use in some instances, particularly those in the public spotlight, are we not condoning its application in the future?


bottom of page