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A breakdown of the felony murder rule, a doctrine invoked in Arbery convictions

DAVID FOLKENFLIK, HOST:

Earlier this week, an almost entirely white jury in Georgia convicted three white men of killing Ahmaud Arbery, an unarmed Black man out for a jog. For many Americans, the verdict delivered justice that was long overdue, yet some legal observers point to one of the laws used to convict the three killers as an unsettling reminder of the ways in which African American defendants have sometimes been prosecuted. It is the so-called felony murder rule. Critics of this law say that it greatly expands who can be charged with murder and ends up being used to toughen the sentences of juveniles and people of color.

To talk about the debate over the felony murder law, we called up Shobha Mahadev. She's a clinical professor of law at the Children and Family Justice Center, which is part of Northwestern University's law school. She joins us now. Shobha Mahadev, welcome.

SHOBHA MAHADEV: Thank you so much for having me.

FOLKENFLIK: First, can you define felony murder for us and explain how that differs from how people conventionally think about a murder charge?

MAHADEV: Sure. So I think if you ask most people, they would have some knowledge that criminal responsibility is tied to a person's intent. So if you intended to kill someone and you committed that act, then yes, you should be held responsible for first-degree murder or murder, as it might be in many states. Felony murder is an exception to that idea. You don't have to have an intent to commit murder. That conviction arises from your conduct and your intent to commit another felony. And then that felony is connected to murder itself. So felony murder is actually kind of a different way in which we hold people responsible for murder, even if they don't intend to commit murder at all or cause a death.

FOLKENFLIK: In the case we've been talking about, one of the defendants, Travis McMichael, was convicted of malice murder, which requires intent. His father and his neighbor, who also participated in the attack, were acquitted of malice murder but convicted of felony murder. So Travis McMichael pulled the trigger. The other two didn't. If felony murder were to be replaced, the two who participated but didn't pull the trigger may not have been convicted of murder at all. Do you feel that would have been a more legally just outcome?

MAHADEV: I think it's difficult to divorce the circumstances of this case from what happens nationally every day in our courtrooms. I mean, if you were to look at the shooter, Travis McMichael is the one who bore the greatest responsibility. But if you look at the father and then, even more attenuated, Mr. Bryan, who was following around in his truck, yeah, it is possible that he would not have been convicted of murder.

But if you look at the national landscape, I think what we actually do observe is that lots of people are caught up in this net of needing to convict someone of the highest possible offense, even though their responsibility may be much lower. I mean, you can look at teenagers, for instance. There was a well-known case here in Illinois a couple of years ago where teenagers were trying to take a car from a homeowner's driveway, and a homeowner came out and shot and killed one of the teens. And the others were held responsible for that and charged with murder, in fact. So you could see that there could be some extreme results that come out of the use of felony murder as it stands right now. And perhaps a better option is to tie it more closely to people's intent and their individual responsibility.

FOLKENFLIK: There is some research that strongly indicates Black people are arrested and sentenced for felony murder at exponentially higher rates than white people. So this case may not be fully representative of the way in which this law is typically exercised.

MAHADEV: I think that's accurate.

FOLKENFLIK: OK. What do you see as a better alternative here for holding people accountable for heinous crimes that might end in death?

MAHADEV: I think if you were going to consider keeping the rule, it would be better if it were more closely tied to individual's intent and the actions they actually do carry out. Some states have done this by giving people an option to demonstrate maybe they were not armed, and maybe they did not share the same intent as other participants. But I think another way to look at this is that in this country, we actually do have pretty long sentences available for many of the felonies that could be at the root of the felony murder charge. For instance, even in this case, looking at aggravated assault, yes, you might not end up with murder convictions, but there may be other convictions available that could deliver an extremely long sentence and could avoid some of the worst abuses that we see out of these felony murder convictions, which do seem to have a disproportionate impact on youth, minorities and even women.

FOLKENFLIK: Do you see any movement to change these laws, to rewrite felony murder?

MAHADEV: I think we have seen some narrowing. Even last year in Illinois, we did have a reform that limited the application of the felony murder law so that it would not affect some of the most extreme cases. I would urge some caution out of people that when you feel that a just result has happened in a case like this where we - were race has infected, you know, this entire situation that we're looking at in the Arbery case and was maybe at its core from the beginning, even in the fact that the case wasn't even prosecuted or may not have come to light without significant community and national pressure, I think that might incite people to want to create more strict laws. But our experience is that a more strict version of felony murder has a great likelihood of disproportionately impacting Black individuals, youth and women as well. So we would urge caution, I think, in that respect in the application of the rule.

FOLKENFLIK: We've been hearing from Shobha Mahadev. She's a clinical professor of law at Northwestern Law School. Shobha Mahadev, thank you.

MAHADEV: Thank you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.