Consider this scenario.
Two people plan a bank robbery. One sits outside in the getaway car while the other one gets the money, but also fatally shoots a teller. Captured after a police chase, both suspects are charged with the robbery and the murder. In death penalty states, they may face capital punishment. In Massachusetts, they face up to life imprisonment.
The charge is called “felony murder,” a rule codified into law in most states, including Massachusetts, and the federal government. It is derived from English common law, dating from the 12th century, but modernized in the 18th.
Is it fair and just?
The Massachusetts Supreme Judicial Court (SJC) less than two years ago modified the commonwealth’s version of the rule when it declared that the prosecution must meet three requirements. The case, Commonwealth v. Timothy Brown, involved the deaths of two brothers who were robbed during a home invasion. Although Brown was not at the scene, he supplied a weapon and the hooded sweatshirts worn by the perpetrators. He was found guilty of first-degree felony murder.
The SJC in a unanimous decision declared that the Massachusetts felony murder law is constitutional, but the court narrowed the rule. The prosecution, Justice Frank Graziano ruled, must “prove beyond a reasonable doubt that the defendant 1) intended to kill or 2) caused “grievous bodily harm” or 3) acted in a way he knew in advance that there was “a plain and strong likelihood that death would result.”
Brown had no such intent — he wasn’t even there. The court held that a second-degree murder charge was appropriate. In this way, the SJC narrowed the scope of the felony murder law in Massachusetts, but did that make it fair and just?
Consider this recent parallel case in Maryland. Four teenagers stole a Jeep Wagoneer last year and went out to rob houses. When a police officer arrived at the scene and left her cruiser, the getaway driver ran over her, killing her. The other three were in the house they broke into, and had no idea what happened until police backup arrived and arrested all four. The state charged all with felony murder in the first degree.
In a trial last fall, the driver of the Jeep was convicted, and now faces life imprisonment. His sentencing will take place in July. Fearing that the same fate awaited them, the three others, in a plea bargain, accepted their guilt of the felony murder charge and now face 30 years in jail.
Laying aside the conviction of the driver who killed the police officer, should the other three face the same charge as the perpetrator? Surely they will not face life imprisonment, and neither did Brown in Massachusetts.
Here’s the rub: The U.S. Supreme Court has long been skeptical of felony murder charges. In 1987, in Tison v. Arizona, the court ruled that for a jury to determine whether a person is guilty of the charge, the prosecution must prove beyond a reasonable doubt that the defendants possessed “a reckless indifference to human life.” How could the Massachusetts Brown or the three Maryland teenagers have displayed such a “reckless indifference” if they did not even know that a death had taken place?
While the SJC narrowed the definition of what constitutes felony murder with its three prongs, perhaps it is time to set aside the felony murder rule as a vestige of life in early modern English common law, and not part of our contemporary sense of fairness and justice.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.