By: Madison Steinmann[*]
Published: February 16, 2024
I. INTRODUCTION
The felony murder doctrine is a well-established aspect of American law.[1] In its most general form, this doctrine can be defined as causing the death of another human being during the execution of a felony.[2] While this general form is not the prevailing law in the United States today, many states continue to employ some form of the felony murder doctrine.[3] One of these forms is the third-party felony murder rule—a notable subcategory of the felony murder doctrine—which broadens the doctrine even further, allowing for individuals committing a felony to be charged with a murder caused by a third-party.[4] To illustrate, the most common example of the third-party felony murder rule occurs when liability is thrust onto individuals for a law enforcement officer’s killing of another while in pursuit of the individual(s) committing the felony.[5] Though the third-party felony murder rule is only employed in a select number of jurisdictions, this rule and the felony murder doctrine more generally continue to be highly criticized for a number of reasons.[6]
II. BACKGROUND
There are two primary approaches that states take in regard to the felony murder doctrine: (1) the agency approach, and (2) the proximate cause approach.[7] While the agency approach is taken by a majority of states and narrows the scope of the doctrine, a minority of states still employ the proximate cause approach, which broadens the doctrine’s scope.[8]
A. The Agency Theory of Felony Murder
The agency theory of felony murder posits that a defendant and co-felons committing a felony will not be held liable for a death that occurs during its commission if they did not cause the death.[9] In other words, the agency approach narrows the felony murder doctrine to exclude third-party felony murder.[10]
B. The Proximate Cause Theory of Felony Murder
The proximate cause theory of felony murder contends that a defendant and co-felons can be held liable for any death occurring during the commission of a felony, so long as that death is a foreseeable consequence of the felony.[11] Thus, the proximate cause approach broadens the felony murder doctrine to include third-party felony murder.[12] Three notable states that continue to employ this approach are Illinois, Alabama, and Kansas.[13]
According to Illinois’ old first-degree murder statute—in effect from 1961 to July of 2021—a defendant could be charged with first-degree murder if he or she was “attempting or committing a forcible felony other than second-degree murder” while “performing the acts which cause[d] the death.”[14] During this time period, the Illinois Supreme Court consistently applied the proximate cause theory, applying it even in cases where the deceased individual was a co-felon.[15] In one of its earliest cases applying the proximate cause theory, the court reasoned that “it reasonably might be anticipated that an attempted robbery would meet with resistance,” leading to the potential death of a victim and liability on the perpetrators for the murder.[16] The court then utilized this reasoning in subsequent cases, until the first-degree murder statute was changed in 2021.[17] Although the legislature attempted to move to an agency approach by amending the statute, it is still unclear whether this will be the end result in practice.[18]
Interestingly, Alabama’s felony murder statute is very similar to the post-2021 first-degree murder statute in Illinois.[19] However, the Alabama legislature explicitly stated that the proximate cause approach would still apply in cases of felony murder, further lending credence to skepticism that post-2021 Illinois’ practices will be materially different.[20]
In the case of Kansas, a more unique approach has been employed which places the state between applying the agency approach and applying the proximate cause approach.[21] This approach is primarily based on Kansas case law, with the Kansas Supreme Court holding that a defendant cannot be held liable for “lawful acts of a third-party [that] result in a death” but can be held liable for unlawful acts of a third-party.[22] More recent decisions by the court have affirmed this approach, allowing for the third-party felony murder rule to linger in the state.[23]
III. ANALYSIS
Many arguments made against the third-party felony murder rule, and the felony murder doctrine more generally, include criticisms that the doctrine goes against both the retributive and utilitarian theories of punishment and is inconsistent with the American justice system’s focus on culpability.[24] In conjunction with these arguments, there is another important problem that the third-party felony murder rule and the broader felony murder doctrine perpetuate: the overcrowding of prisons.[25] This is particularly problematic when considering that the prison population in the United States is over 1.5 million, with a prison population rate of over 500 per 100,000 people.[26] Since almost all states continue to employ some form of the felony murder doctrine, this means that a portion of incarcerated individuals who have committed a felony during which a murder occurred are currently in prison for murder without actually having the culpable mental state required for the crime.[27] This fact becomes even more problematic when considering that “eight states and the federal system mandate LWOP [(life without parole)] sentences, 15 states mandate LWOP in some cases, 17 states and Washington, D.C. make LWOP a sentencing option [, and] [f]our states permit or require a virtual life sentence of 50 years or longer” for felony murder convictions.[28] Giving individuals convicted of felony murder lengthy sentences both forces prisons to hold these individuals with seemingly no strong deterrence rationale for the punishment and places burdens on taxpayers for incarcerating these individuals with little to no positive outcomes stemming from the punishment.[29]
Rather than allowing prison overcrowding to be perpetuated by the felony murder doctrine, alternative punishments for felony murder convictions should be promoted.[30] Most notably, utilizing restorative justice for these convictions will take the state out of the equation while still holding those convicted accountable for the murder that occurred while they were committing a felony.[31] Since the main goal of restorative justice is to satisfy the victim and teach the offender, this alternative to imprisonment can be used to show offenders how the consequences of committing a felony affected the victim and/or the victim’s family, reducing reoffending.[32] By utilizing restorative justice, offenders convicted of felony murder will only serve prison time for committing a felony, and not for murder, reducing their sentences significantly and therefore helping to reduce the occupancy of prisons.[33]
While restorative justice may not appear to be a proportionate punishment for murder, it seems a more proportionate punishment specifically for third-party felony murder when considering that the individuals convicted in these situations are not actually the ones who kill. In looking for a balanced solution, the Nordic countries make it apparent that there may be room for a balance that considers restorative ideals while also acknowledging the weight of the outcome of one’s third party felony murder crime and the strains on the United States’ prison system.[34] In Scandinavia—which encompasses the Nordic countries of Denmark, Norway, Sweden, Finland, and Iceland—the prison rates and populations are significantly lower than in the United States.[35] These countries employ the penal practice of “open” prisons—prisons with few barriers that require prisoners to stay in a localized area but allow for greater mobility than is seen in typical prisons.[36] Prisoners within these institutions are allowed to work during the day, with many even continuing to work at their prior jobs.[37] However, it is important to emphasize that these prisons still restrict prisoners in a number of respects; rather, this system was set up to account for the well-being of prisoners while also forcing them to face the consequences of their actions.[38]
The overall structure and underlying reasons for placing prisoners in open prisons make it worth considering as a punishment for instances where individuals are convicted of third-party felony murder.[39] By employing this form of punishment, individuals convicted of third-party felony murder will still be required to serve prison time that addresses the outcome of their actions, but the amount of time required will be shorter and the reduced control of the environment will allow them to continue to be active and productive members of the community.[40] Restorative justice could also be employed along with this punishment, allowing for further community integration prior to these prisoners’ release. This type of punishment would allow for a balance to be struck between employing long prison sentences—which perpetuate prison overcrowding—or employing only restorative justice programs, avoiding a forced settlement for ‘the lesser of the two evils.’
IV. CONCLUSION
The felony murder doctrine has persisted in American law for many years, with some states still allowing for a broad approach to this doctrine.[41] While there have been numerous arguments against the third-party felony murder rule, the argument that this rule perpetuates prison overcrowding is particularly persuasive.[42] Instead of issuing long prison sentences to those convicted of felony murder or utilizing only restorative justice programs, a balance should be struck between these two options, allowing for both to be partly employed while keeping prison overcrowding to a minimum.[43]
Footnotes
[1] See James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law, 51 Wash. & Lee L. Rev. 1429, 1430 (1994).
[2] See Jason M. Cieslik, A New Approach to Felony Murder in Illinois, 42 N. Ill. U. L. Rev. 243, 247 (2022).
[3] See Tomkovicz, supra note 1, at 1434.
[4] See id. at 1467.
[5] See Chris Birzer, Comment, Kansas’s Unworkable Approach to Third-Party Felony Murder, 71 U. Kan. L. Rev. 773 (2023).
[6] See id. at 775.
[7] See Cieslik, supra note 2, at 248-250.
[8] See id.
[9] See id.
[10] See id.
[11] See id.
[12] See id.
[13] See id.
[14] 720 Ill. Comp. Stat. Ann. 5/9-1 (a)(3) (2020).
[15] See People v. Dekens, 182 Ill. 2d 247, 251 (1998).
[16] People v. Payne, 359 Ill. 246, 255 (1935).
[17] See People v. Lowery, 178 Ill. 2d 462, 466-69 (1997).
[18] See Cieslik, supra note 2, at 259; 720 Ill. Comp. Stat. Ann. 5/9-1 (a)(3) (2023).
[19] See Ala. Code § 13A-6-2 (a)(3) (2023).
[20] See id. at Commentary.
[21] See Birzer, supra note 5, at 774.
[22] Id. See State v. Sophophone, 270 Kan. 703, 709-710 (2001).
[23] See State v. Pearce, 314 Kan. 475, 479-480 (2021).
[24] See Carissa Byrne Hessick & Douglas A. Berman, Towards A Theory of Mitigation, 96 B.U.L. Rev. 161, 179-184 (2016); Cynthia V. Ward, Criminal Justice Reform and the Centrality of Intent, 68 Vill. L. Rev. Tolle Lege 51, 55-62 (2023).
[25] See Guyora Binder, The Culpability of Felony Murder, 83 Notre Dame L. Rev. 965, 981 (2008).
[26] World Prison Brief data: United States of America, World Prison Brief (2019), https://www.prisonstudies.org/country/united-states-america.
[27] See Ward, supra note 24.
[28] Nazgol Ghandnoosh, Ph.D., et al., Felony Murder: An On-Ramp for Extreme Sentencing, The Sentencing Project (Mar. 31, 2022), https://www.sentencingproject.org/reports/felony-murder-an-on-ramp-for-extreme-sentencing/.
[29] See id.; Hessick & Burman, supra note 24, at 191-93.
[30] See Samantha Buckingham, Symposium, Reducing Incarceration for Youthful Offenders With A Developmental Approach to Sentencing, 46 Loy. L.A. L. Rev. 801, 855-57 (2013).
[31] See id.; John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 Crime & Just. 1, 26-27 (1999).
[32] See Braithwaite, supra note 31, at 4.
[33] See Adriaan Lanni, Taking Restorative Justice Seriously, 69 Buffalo L. Rev. 635, 637-38, 664-65 (2021).
[34] See Nitin Sapra, The Origins and Role of the Penitentiary in Brazil, Scandinavia, and the United States, 41 Hastings Int’l & Comp. L. Rev. 343, 353 (2018); See Tapio Lappi-Seppala, Penal Policy in Scandinavia, 36 Crime & Just. 217, 225 (2007).
[35] The prison populations for Denmark, Norway, Sweden, Finland, and Iceland, respectively, are 4,106, 3,000, 8,635, 2,839, and 140. Additionally, the prison population rates per 100,000 for Denmark, Norway, Sweden, Finland, and Iceland, respectively, are 70, 54, 82, 51, and 36. World Prison Brief data, supra note 26.
[36] See Sapra, supra note 34, at 354; See Lappi-Seppala, supra note 34.
[37] See Sapra, supra note 34, at 354.
[38] See id.
[39] See id.
[40] See id.
[41] See supra Parts I and II.
[42] See supra Part III.
[43] See supra Part III.
About the Author
Madison Steinmann is a first-year J.D. candidate at Penn State Law. Originally from Fresno, California, Madison graduated summa cum laude from California State University, Fresno with a Bachelor of Arts in political science and served as the president of the Fresno State Moot Court Team. Before law school, Madison interned in the Fresno County District Attorney’s office and served as a Social Science Tutor at Fresno State. Madison won the American Moot Court Association Sixth Place Orator Award and recently received the CALI Award in Civil Procedure at Penn State Law.
Suggested Citation: Madison Steinmann, Third-Party Felony Murder: A Doctrine That Doesn’t Make Sense, Penn St. L. Rev.: F. Blog (Feb. 16, 2023), https://www.pennstatelawreview.org/the-forum/third-party-felony-murder-a-doctrine-that-doesnt-make-sense/.