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Felony Murder Charges Should Not be Used on Juveniles

by Kevin Bliss

In September 2019, Michael Nerheim, State’s Attorney for Lake County, Illinois, dropped felony murder charges against four juveniles and one 18-year-old following pressure from activists.

The charges against the “Lake County Five” stemmed from a confrontation at 1:00 a.m. on August 23, 2019 between a 75-year-old white male and six black teens who, according to the police, were trying to steal his car. When one approached with something in his hand, the man pulled his licensed handgun and fatally shot 14-year-old Jaquan Swopes in the head. 

The other five teens – all friends and relatives of one another and Swopes – were then charged with his death under the state’s felony murder law, which holds anyone committing a felony liable for any death that occurs during the commission of that felony, regardless of involvement in or even intent to commit the killing.

Originating in English jurisprudence, felony murder was abolished in the United Kingdom 60 years ago. Many other countries have since followed suit, eliminating a law that has been criticized as archaic, overreaching and especially pernicious for juveniles. Yet felony murder statutes persist in 44 U.S. states – it’s also known as the “law of parties” in Texas – and at the federal level. Illinois, along with 17 other states, has the most extreme version of the law, holding anyone liable for any death that results from a crime, even one that occurs after the fact.

“I don’t disagree with them being charged with something, because they did do illegal things, but felony murder, no,” said Cloe Pollion, Swopes’ aunt and the mother of one of the five teens who were charged.

Jobi Cates with Restore Justice, an advocacy group pushing to revise the law, said there was anger after the charges were announced because none of the five juveniles actually killed anyone or intended to do so. She added there was no evidence to show that the felony murder statute acts as a deterrent to crime; rather, it is simply a first response by legislators to societal problems, and intended to increase punishment.

Her colleague, Marshan Allen, called the law an example of “what’s wrong with our criminal legal system ... that it’s not about justice, it seems that it’s more about punishment, about retribution, not trying to figure what harm was done and how the harm can be repaired.”

In its 2012 ruling in Miller v. Alabama, which outlawed mandatory life sentences for juveniles, the U.S. Supreme Court accepted evidence that juveniles’ brains are not fully developed, resulting in more impulsive behavior, less resistance to peer pressure and poor capacity to foresee outcomes of their actions.

Though the Supreme Court has not outlawed felony murder in juvenile cases, the ruling in Miller formed the basis of Allen’s successful appeal of his 1994 life sentence for felony murder when, as a 15-year-old, he stole a van that was used by his brother and some friends to commit a robbery in which two people were killed while Allen hid in the vehicle.

“My initial thoughts were that I could possibly beat the charges,” he recalled. “That they had made some horrible mistake by charging me with murder, ‘cause none of my charges – they had nothing to do with stealing a vehicle.”

Allen was finally released in December 2016 after serving over 20 years in prison.

In 2015, the same year that Miller was decided, Indiana’s Supreme Court tossed the felony murder convictions of three of the so-called “Elkhardt Four,” related to the death of a fifth member of the group – 18-year-old Danzele Johnson, who was shot and killed by the owner of a home they were attempting to burglarize. 

Blake Layman, 15 at the time of the shooting, had his conviction overturned along with those of accomplices Levi Sparks and Anthony Sharp, both of whom were 17 when the crime was committed. Jose Quiroz, then 16, pleaded guilty and was sentenced to 45 years, but did not appeal his sentence.

“If you are going to be involved in a serious violent crime, you have to accept that there are consequences for things that will happen,” stated Jim Oliver, with the Indiana Prosecuting Attorneys Council. “Even if you didn’t actually pull the trigger.”

But in the case of felony murder, he said, courts have drawn a line.

“The death has to be foreseeable,” Oliver explained.

The circumstances in both the Elkhardt Four and the Lake County Five cases closely mirror those of a 2008 Illinois incident in which 14-year-old Travis Castle was shot and killed by an unexpected guest at a Rockford home he was trying to rob along with friends Justin Doyle, then 15, and Nathan Whitmire, then 16. Whitmire, convicted on a lesser charge, was released from prison in 2013. Doyle was convicted of felony murder but was granted clemency and freed in 2017.

As for the Lake County Five, State’s Attorney Michael Nerheim – who is up for reelection – said he still thought the felony murder charges were applicable. Yet after talking with the victim’s family and defense attorneys, he decided to drop the charges. 

Instead, the oldest of the five defendants, 18-year-old Diamond Davis, pleaded guilty to conspiracy to commit burglary and criminal trespass to a motor vehicle, and received a one-year prison sentence. Her co-defendants, all 16 and 17 years old, had their cases transferred to juvenile court. Pollion’s son, Kendrix Cooper, was ordered to remain on home confinement until his case is resolved.

Illinois state Rep. Justin Slaughter has introduced a bill to restrict the types of cases in which felony murder charges can be filed.

“What it does is it makes the felony murder rule more narrow, where the system is looking at holding accountable the individual or group that actually commits the murder,” Slaughter stated.

“This is a wonderful victory,” said Northwestern University Pritzker School of Law professor Steven Drizin, who helped secure Doyle’s clemency from then-Governor Bruce Rauner. “But if it stops here, then it is a pyrrhic victory. Clemency, while a critical part of the criminal justice system, is an inefficient way to reform the law. It’s one case at a time, and it’s an extraordinarily rare remedy.”

Beyond ending felony murder for juveniles, the law should not be applied to adult defendants, either. There are already criminal statutes that cover murder, accessory to murder and conspiracy to commit murder, as well as charges for the underlying felonies, thus felony murder laws are unnecessary in addition to being unnecessarily punitive. 



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