The Controversial Legal Doctrine at the Heart of the Floyd, Brooks, Arbery Cases
Felony murder allows prosecutors to seek stronger sentences, but some say the outcomes can be overly harsh
Demonstrators protested against police brutality in New York on June 19.
PHOTO: ALLISON DINNER/ZUMA PRESS
By
Jacob Gershman
July 9, 2020 7:52 am ET
Prosecutors in Minnesota and Georgia are deploying a controversial criminal statute in their effort to punish the alleged murderers of George Floyd, Rayshard Brooks and Ahmaud Arbery.
The white police officers and others charged in the deaths of the three Black men are accused of felony murder, among other charges. The felony-murder rule is based on a legal doctrine hundreds of years old that allows a defendant to be charged with murder for causing death while committing particular felonies.
The felony-murder rule gives prosecutors a powerful tool: the ability to win the equivalent of a conviction for first- or second-degree murder without proving the intent, premeditation or gross recklessness typically required. It can be applied to someone who didn’t actually physically commit the homicide, and in some jurisdictions, a conviction can be punished as harshly as intentional murder.
Prosecutors who support the rule say
· it discourages people from participating in serious felonies and
· deters criminals from engaging in dangerous conduct while committing them.
They also argue that an added level of culpability should apply when someone is killed during the crime.
But the use of felony-murder charges in high-profile, recent cases has generated unease among critics of the rule. Some legal scholars and others advocating against what they see as inequities in the legal system have long faulted the rule for giving prosecutors too much power to treat felons as killers. Critics of felony murder say it too often leads to overly harsh sentences, particularly for poor minorities.
Former Minneapolis police officer Derek Chauvin faces charges in connection with the killing of George Floyd in late May.
PHOTO: HANDOUT/AGENCE FRANCE-PRESSE/GETTY IMAGES
Prosecutors in Minneapolis are applying Minnesota’s version of the felony-murder rule in their case against Derek Chauvin, the fired police officer who knelt on the neck of Mr. Floyd while he was prone and handcuffed, leading to his death from cardiac arrest. In Georgia, former Atlanta police officer Garrett Rolfe also faces felony-murder charges for shooting Mr. Brooks outside a fast-food restaurant.
Separately in Georgia, a Glynn County grand jury in June indicted three men on felony-murder charges in the death of Mr. Arbery, a 25-year-old who was fatally shot while out running in southeast Georgia. The three killings provoked protests around the country.
Forty-two states have felony-murder rules, according to Guyora Binder, a law professor at the University at Buffalo in New York and a leading expert on the doctrine. A standard example is a robber who holds up a convenience store at gunpoint and kills a customer who attempted to grab his gun. The robber never intended to kill anybody but can be charged with felony murder.
Prosecutors say the felony-murder rule is fair when wielded carefully.
“We’re seeing police officers being held accountable by the very mechanisms that advocates are seeking to abolish,” said Adam Foss, a former assistant district attorney in Boston who now runs a nonprofit group that conducts training for prosecutors. “That’s a Pyrrhic victory. If we want to get rid of the felony-murder rule, we have to get rid of it.”
Ekow Yankah, a criminal law professor at Yeshiva University, said he is sympathetic to the desire to bring the accused police officers to justice. “But the trade-off is to give prosecutors wide powers to prosecute people. Those powers are usually going to be aimed at poor men of color, not police,” he said. “We have to be very conscious of the bargain we’re making.”
The most controversial felony-murder cases are outliers that stray from principles behind felony murder, said Prof. Binder. The crime, he has written, is rooted in the moral intuition that “one who negligently causes death deserves more punishment if he does so for a felonious end.”
In recent years, a handful of states have abolished or scaled back their felony-murder rules, either by adjustments to criminal codes or by court rulings. Minnesota lawmakers this year proposed a task force that would examine the state’s felony-murder statute.
Most jurisdictions require the underlying felony of a felony-murder charge to have a criminal purpose distinct from the homicide itself, like robbery, rape or kidnapping.
But the criminal codes of Georgia and Minnesota define felony murder more broadly. Both states permit the underlying felony to be the same act that killed the victim. In some cases, that gives prosecutors more leeway to bring murder charges for what would otherwise be involuntary manslaughter or other lesser offenses. Mr. Chauvin’s murder charge is built around the felony of third-degree assault.
Former Atlanta police officer Garrett Rolfe questioning Rayshard Brooks in a Wendy's restaurant parking lot in Atlanta on June 12, not long before he shot Mr. Brooks to death.
PHOTO: ATLANTA PD/REUTERS
A felony-murder conviction can be punished by a life sentence or death in Georgia. Sentencing guidelines in Minnesota—where felony murder is referred to as unintentional second-degree murder—recommend 12 ˝ years in prison.
A spokesman for Minnesota Attorney General Keith Ellison, whose office is running the Floyd case, declined to comment. Mr. Chauvin’s attorney declined to comment.
In June, when Mr. Ellison added the second-degree felony-murder charge to a charge of third-degree murder against Mr. Chauvin, he said he made the decision “in the interests of justice for Mr. Floyd, his family, our community and our state.” His move drew praise from the American Civil Liberties Union of Minnesota and Mr. Floyd’s family.
The chief public defender of Hennepin County, Mary Moriarty, said she doesn’t fault Mr. Ellison for pursuing a felony-murder case.
“I disagree with felony murder,” Ms. Moriarty said. “But in this particular case, I understand why the prosecutor would choose to go forward with that charge.” She said it could have been difficult for state prosecutors to convince a jury beyond a reasonable doubt that a police officer on a busy street in broad daylight intended to commit murder.
She said that while the felony-murder rule often exaggerates the culpability of defendants, she thinks there was enough evidence to charge Mr. Chauvin with intentional murder.
An attorney for one of the other officers charged in the case said, in a request to dismiss the charges against his client, that the decision to restrain Mr. Floyd was reasonably justified.
In Atlanta, Mr. Rolfe is accused of killing Mr. Brooks while committing multiple counts of aggravated assault with a deadly weapon. Various video footage of the June 12 incident shows Mr. Rolfe and another officer struggling to detain Mr. Brooks after he failed a breathalyzer test. Mr. Brooks is seen grabbing an officer’s Taser, running away and then discharging the Taser in Mr. Rolfe’s direction while fleeing. In the next instant, while Mr. Brooks was still running, Mr. Rolfe shot him twice in the back, according to an autopsy report.
If Mr. Rolfe is indicted on a charge of felony murder, prosecutors wouldn’t have to show that he intended to kill Mr. Brooks or fired at him with malice, but only that the officer used his gun to threaten Mr. Brooks or a bystander with immediate violent injury without justification.
Fulton County District Attorney Paul Howard didn’t respond to requests for comment. In announcing the charges last month, Mr. Howard said Mr. Brooks “never presented himself as a threat.”
Mr. Rolfe’s lawyer said the shooting was justified under Georgia’s statute regulating law enforcement’s use of deadly force.
“In the event that the Fulton County district attorney is able to convince a grand jury to issue an indictment against Garrett Rolfe, we will certainly file a challenge to Georgia’s felony-murder law,” said Noah Pines, an Atlanta attorney representing Mr. Rolfe. “Intent should be an important part of culpability. We should not treat deliberate killers the same way that we treat accidental ones.”
Demonstrators protested at a memorial for Ahmaud Arbery on May 8, near where he was shot and killed earlier this year in Brunswick, Ga.
PHOTO: SEAN RAYFORD/GETTY IMAGES
In the death of Mr. Arbery, the grand jury indictments against the three men also charge them with deliberate murder. With the inclusion of felony-murder charges—based on felonies including false imprisonment using pickup trucks—the defendants can still face a life sentence or the death penalty even if a jury concludes the defendants never had murderous intent.
Kevin Gough, a lawyer for William “Roddie” Bryan Jr., the defendant who videotaped the encounter from a distance, said the prosecution of his client “highlights everything that is wrong with Georgia’s felony-murder rule.”
The Atlanta-area district attorney office assigned to the case declined to comment. At a preliminary hearing on June 4, prosecutors laid out evidence that they said demonstrated Mr. Arbery was “chased, hunted down and ultimately executed” by the three men.
Write to Jacob Gershman at jacob.gershman@wsj.com