It may be very difficult, if not impossible, for Baltimore County prosecutors to make first-degree murder charges stick to three of the four teenagers indicted by a grand jury in the death of police Officer Amy S. Caprio. Only one of the boys, Dawnta Anthony Harris, is alleged to have run her down in the stolen Jeep Wrangler. The others were not even in the car, according to police; they were said to be still inside one of the houses they were burglarizing when Caprio arrived, yet they were all charged in her death.
The legal theory allowing the other three to be charged with murder alongside Dawnta is the “felony murder” rule, a remnant of the English common law. The rule says that if someone is killed during the commission of a particular felony (burglary, rape, robbery, kidnapping and arson), all people committing the crime can be charged with murder, whether or not they were directly involved in the death.
The conventional example is the getaway driver waiting outside the bank while his accomplice is inside robbing it. The stickup man seizes the money, murders the teller and gets away in the car. Both are captured; the shooter is charged with murder and robbery, while the driver, as an accomplice to the crime, faces felony murder and robbery charges.
The problem is that the United States Supreme Court looks very skeptically at felony murder. In 1982, in Enmund v. Florida, the court set aside the death penalty sentence of Earl Enmund, a getaway car driver who was condemned to die after his accomplices robbed and then killed an elderly couple. In overturning Enmund’s death sentence, in a vote of five to four, the court held that “Enmund himself did not kill or attempt to kill; and, as construed by the Florida Supreme Court, the record before us does not warrant a finding that Enmund had any intention of participating in or facilitating a murder.”
The standard of criminal culpability must be based not only on the defendant’s actions but also his mental state at the time of the crime, according to the majority opinion, written by Justice Byron White: “Putting [Enmund] to death to avenge two killings that he did not commit or intend to commit or cause would not measurably contribute to the retribution end of ensuring that the criminal gets his just deserts.”
Five years later, in Tison v. Arizona, the court refined the standard but still frowned on the felony murder charge as a weak link in the criminal justice system. Two brothers, Ricky and Raymond Tison, walked into a prison with an arsenal of weapons and broke out their father and his cellmate and then helped them abduct a family of four, including two children, whom the escapees murdered.
The brothers were not the shooters, but the authorities charged them with felony murder, and they received the death penalty. When their case went to the Supreme Court, the justices ruled, in an opinion written by Justice Sandra Day O’Connor, that the capital punishment sentence would stand. It was clear, Justice O’Connor wrote, “that petitioners also fall outside the category of felony murderers for whom Enmund explicitly held the death penalty disproportional: their degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life.”
Can the state prove that the three boys in the house they were robbing exhibited such a “reckless indifference?” That of course will be up to the jury to decide. But the U.S. Supreme Court has made it clear: it is a high bar to reach.
Jack Fruchtman (firstname.lastname@example.org) is teaches constitutional law and politics at Towson University and is director of the Program in Law and American Civilization. His most recent book is “American Constitutional History” (2016).