One spring evening in Prince George’s County, a friend called David saying she needed help in going after some friends who had hurt her. He declined. She then called David’s friend Keith for help; he agreed and said he would meet her.

Keith called David and talked him into going with him. When they met her, she was drunk and waving a gun. They tried to talk her down, and David got her to call her mother. But she was loud and still waving the gun when she made the call, and the next thing David knew Keith shot her, almost hitting him in the act. Keith then told David to take her gun.

Scared of what Keith was demonstrably capable of doing, David took the gun and ran. David was 16 years old at the time; Keith was 18. Both boys were tried and convicted of felony murder and use of a handgun in commission of a felony. Both boys got the same sentence of life plus 20 years, the sentences to run consecutively.

To prove premeditated first-degree murder, the most extreme form of murder, the state must prove that the defendant intended to kill, was conscious of that intent, and had time to think about that intent.

Except when the state doesn’t have to prove intent—at all.

Indeed, many people sit in Maryland prisons for decades or for their entire lives who never intended to kill. They serve sentences for first-degree murder because the law tells prosecutors not to worry about proving intent to kill; if the defendant was involved in one of a certain list of felonies, it doesn’t matter whether the killing was planned or the defendant did or even knew of the killing at all.

Despite our very stringent penalties for the felonies that trigger felony murder, the theory goes that if a person dies during commission of, for example, a robbery, burglary or arson, all involved in that crime should know death could happen. Premeditation and intent go out the window. An accident, a reaction, another member of a group’s intent to kill sweep all into the worst punishment our laws dole out.

Consider, that someone who brutally attacks another person, or who acts on impulse to kill another, or who recklessly disregards the likelihood of death occurring does not face the same punishment. They are charged with assault, second degree murder or manslaughter.

Women and girls coerced into participating in crimes by abusive partners fall prey to felony murder charges as well. A 2018 California survey of 82 women serving a life sentence for felony murder in California found that 72% were not the actual perpetrators of the homicide.

Though the felony murder doctrine inherently raises constitutional concerns, its application as to children is even more indefensible. As with David, a child can be charged with first-degree murder when his or her co-defendant committed the murder. The law is in opposition to the U.S. Supreme Court’s precedent regarding child offenders. Relying on the Eighth Amendment’s prohibition of cruel and unusual punishment, in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court determined that youth must be considered when sentencing child offenders.

The premise of these decisions is that youth are less blameworthy than adults because of where they are in the process of their brain development. Indeed, in the Graham case, Justice Kennedy stated that in the case of felony murder, children are twice removed from culpability because it is even more unlikely that they will contemplate the dangers that could accompany their actions than adults. Notably, while the Court did not decide these cases for other than those defined as juvenile offenders, the science they relied upon spoke of the diminished developmental capacity to project consequences evidenced through the age of 25.

The United States remains virtually the only western country that still recognizes a legal principle that makes it possible “that the most serious sanctions known to law might be imposed for accidental homicide.” England abolished felony murder in 1957, and the doctrine never existed in France or Germany.

Maryland’s use of felony murder, either as a tool for prosecutors to pressure people into pleas or to gain first-degree murder convictions because causation and intent are not required, is particularly insidious as applied to Black people who enter the system. Maryland has the distinction of being among the worst states when it comes to incarceration of Black people, at more than double the national average. Felony murder fuels the worst tendencies, allowing incarceration for life or life without parole despite lacking the level of culpability we think of in relation to such harsh penalties.

For criminal laws to be respected, they must be considered fair and in proportion to the crime. Felony murder fails that standard because it punishes for an act that was either not done at all or not intended by the defendant. It is “justified” by argument that those engaged in the enumerated felonies should know that death is a possibility and further that the extreme penalties will deter engagement in such felonies. The latter disregards the harsh penalties for the underlying felonies which, if considered, would deter in their own right. The former premise of foreseeing the possible consequences has not been substantiated.

With the General Assembly early in its 2023 session, there is again the opportunity to do away with this unjust provision in our laws. Felony murder should be removed from Maryland law by deleting subsection (a)(4) of MD Crim. Law §2-201, and by providing for resentencing based on the underlying felony alone for those convicted of felony murder in the past. Doing so would remove from our laws this fictional intent to kill and the unfair sentencing it fosters. Any legislation that moves in this direction should be supported.

The writer is a member of the Montgomery County Women’s Democratic Club. She is the founder and former director of the Re-Entry Clinic at American University Washington College of Law.

Reprinted from Maryland Matters, January 31, 2023