The December 18, 2023, issue of the New Yorker magazine has an intriguing and informative article entitled “What Makes a Murder? The injustices of a peculiarly American legal idea” by investigative reporter Sarah Stillman. The article, which covers eleven pages, is an in-depth discussion of a peculiarly American twist in the legal system known as the felony murder doctrine.
The focus of the article is Sadik Baxter, a 36-year-old Black man from Florida who is currently serving a life sentence without the possibility of parole. His sentence stems from the death of two cyclists who were struck and killed by a car driven by Brian Oakley, a friend of Baxter’s. At the time of the death of the cyclists, Baxter was under arrest by the police, in handcuffs, and miles away from the crime scene. Eighteen minutes had elapsed since he had been taken into custody and the death of the cyclists. His conviction was based on the felony murder doctrine.
This doctrine is ensconced in Ohio law, pursuant to Ohio Revised Code section 2903.04 (B).
No person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit an offense of violence that is a felony of the first or second degree.
Abolished in United Kingdom and other Commonwealth nations decades ago, the felony murder doctrine remains the law in most jurisdictions in the United States, including the federal court system. It provides that a defendant can be charged with first-degree murder for the death of a person when that death occurs during the commission of a dangerous felony, even if the defendant is not the killer. This rule is based on the premise that when a person engages in an inherently dangerous crime, he or she should realize that there could be dire consequences, such as death. Inherently dangerous crimes vary by state, but typically include burglary, robbery, rape, arson and kidnapping.
So, if you start a fire, which is the crime of arson, and someone as a result of the fire, you can be charged with first-degree murder. If a fireman dies while fighting the fire, the doctrine applies. If you kidnap a person and the person has a heart attack and dies during the kidnapping, you can be charged, even though there was no intent to kill the person.
The classic example is the person who drives the getaway car while the co-defendant robs the convenient store and kills a clerk. The driver is charged with first-degree murder even though he was not in the store and did not pull the trigger. The nexus is the fact that he or she was acting in furtherance of the same dangerous felony by driving the car.
When the state invokes the felony murder doctrine, the prosecution need only prove that the defendant was a part of a dangerous felony, and someone died during the commission of the felony. There is no need to prove an intent to kill.
But the question for the prosecuting attorney or a grand jury bringing charges is, how far you should draw the circle when you determine whether the person was involved in the crime? Is the person who bought the gasoline for the arsonist also charged? Is the person who loaned the convenient store robber the car culpable? What about the person who sold the robber the gun?
In 2018 California amended its criminal statues to prevent prosecution under the felony murder rule for people who do not participate in the killing or were not a major participant in the crime. In essence, California tightened the circle as to how far the prosecutor can go in charging people with the death of a person that is a part of a felony. Some legal scholars argue that the felony murder rule should only be applied when the death is a foreseeable outcome of the acts that the defendant is charged with. For the prosecutor seeking a conviction, foreseeability covers a wide range of acts. Lawyers for defendants charged under this doctrine would argue for a substantially narrow focus.
In the case of Baxter, he and Oakley were driving around in a well-to-do neighborhood. Baxter got out of the car and searched parked cars looking for money and valuables. After taking a pair of sunglasses and some change, he was accosted by a homeowner who called the police. The police arrived and arrested Baxter and placed him in handcuffs. Oakley took off, fearing that he too would be arrested. Driving erratically, with the police in hot pursuit, he ran a red light, striking and killing the two cyclists. Was it foreseeable that Baxter’s conduct — breaking into cars — would result in Oakley’s killing two people?
Oakley was sentenced to life without parole, which is the mandatory sentence in Florida. Harsh, but that is the law in Florida.
Baxter had a couple of lawyers, neither of which was F. Lee Bailey. He also had an out-of-state relative who is an attorney who encouraged him to take a plea that could have resulted in a sentence of 10-20 years. But Baxter decided to take his chances before a jury. His hope was that he was so far removed from the death of the cyclists that he would be found not guilty of the murder charges. At the end of the trial, he was found guilty of two counts of first-degree murder under the felony murder rule and was sentenced to mandatory life without the possibility of parole — just like Oakley.
Stillman cites a 2021 study commissioned by the Minnesota legislature that found that a Black person in Minnesota was five times more likely to be charged with felony murder than a white person, and a Native American person ten times more likely. “Fully a third of those locked up for murder in the state [of Minnesota] were in for felony murder, and most of them had no prior convictions for an offense against a person.”
Stillman also raises a question that has been burning in my mind since January 6, 2021. People who were breaking into the Capital building were engaged in burglary, robbery, assault on police officers and attempted kidnapping — inherently dangerous felonies. A total of 1,230 people were charged with various criminal offenses, most of them felonies. But not one was charged under the felony murder doctrine for the deaths of the five people that died that day.
Ashli Babbitt died after being shot by police as she tried to climb through a door near the House chamber. Stillman cites the case of a fifteen-year-old boy in Alabama, who happens to be Black. He, along with another teenager, broke into a house attempting to steal Xbox games. When the police arrived, the boy ran. But the police shot and killed the other teenager, alleging he had a gun. The fifteen-year-old was charged as an adult and under the felony murder rule, charged with the murder of the other teenager, although the other teenager died at the hands of the police. Why weren’t the compatriots of Ashli Babbitt charged with her death? They were engaged in an inherently dangerous felony and a person died.
Stillman concludes her article by saying “… after two years of closely reviewing cases, I can state with confidence that the doctrine is rarely levelled against people of influence. It is used instead to impose some of society’s harshest punishments on low-income defendants, young people, and defendants of color.” And I might add, the people who are less likely to be able to afford lawyers who can argue the intricacies of the law.
People should be punished for their crimes, but there are times when our criminal justice system goes into overdrive, especially if you are poor, brown or black. The poor and disadvantaged get caught in a system that in 2022 incarcerated 1,230,100 people in American state and federal prisons according to statistics from the U.S. Department of Justice.
In 2020 the nation spent $55 billion on incarcerated people. Mississippi spends an average of $18,000 per year on a prisoner while Wyoming spends an average of $135,000 per prisoner. The average cost nationwide is $46,000 per year to keep a person incarcerated. So not only is mass incarceration a societal problem, but it is also a huge financial burden on the state and federal governments.
Sadik Baxter should be punished for his crime of breaking into cars and stealing other people’s property. But should he be in jail for life without the possibility of parole for stealing some sunglasses and some loose change at the cost of roughly $46,000 a year for the rest of his life? You be the judge. You can also be the judge of the felony murder rule and how it extends the long arm of the law — way too long in my book. I would encourage you to read Stillman’s entire article. It’s long but well worth the read.
C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she is a former member of the Board of the Ohio History Connection, and past president of the Cleveland Civil War Round Table, and is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission. She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.
One Response to “POINT OF ORDER: Felony-Murder Doctrine Makes the Long Arm of the Law Even Longer by C. Ellen Connally”
Anthony Smith 120598
I am an inmate who is in Florida prison and was charged with felony murder. So the Baxter case is very important to me and I would like to stay informed on the outcome of the situation