WILL FELONY MURDER CHANGE IN ILLINOIS?
Did you know that in Illinois you can go to prison for 20-60 years for First Degree Murder even if you didn’t actually kill anyone? That’s right, you didn’t pull the trigger the law doesn’t care. You’re a murderer. That’s what it will say on the Illinois Department of Corrections website next to your IDOC number.
How so, you might be wondering?
A magical legal concept called “Felony Murder.” That’s how the law puts a gun in your hand when you never fired it, your buddy did.
In Illinois there are generally 3 types of murder: 1.Intentional acts of murder; 2. Acts creating a strong probability of death/great bodily harm; 3. Felony Murder.
Everyone knows about intentional murder. Everyone knows that’s First Degree Murder. The premeditated, calculated type of stuff you see on 60 minutes. Nobody knows about the so-called strong probability of death type murders. Think throwing a fire extinguisher off a roof at a someone walking below to scare them but they die, for example. That can be First Degree Murder too. But at least in that scenario you actually committed the physical act that caused someone to die.
Felony murder has no such requirement. Your physical actions do not have to actually cause the death. You don’t even have to have a gun or weapon. You could simply have set up the crime or agreed to participate in the crime, but you certainly never agreed to kill anyone. Too bad. The only question that matters is: did you agree to commit the “forcible felony” that eventually led to someone’s death.
The Illinois First Degree Murder statute states that you can be charged with First Degree Murder if you are:
“attempting or committing a forcible felony other than second degree murder.”
Like so much in law, one definition gives birth to another definition. What does a “forcible felony” legally mean? Thankfully, the law created a list:
- predatory criminal sexual assault of a child
- aggravated criminal sexual assault
- criminal sexual assault
- residential burglary
- aggravated arson
- aggravated kidnaping
- aggravated battery resulting in great bodily harm/permanent disability/disfigurement
- any other felony which involves the use or threat of physical force or violence against any individual.
To be clear, if the police can establish evidence that you (knowingly/intentionally) agreed to commit any of the above felonies, they can charge you with first degree murder.
And it doesn’t matter who gets killed.
Let’s say you and your friend agree to rob a gas station. You both have guns, but you’re only supposed to scare the clerk and get him to give you all the money behind the counter. During the robbery, your friend shoots the clerk. The clerk dies. That’s felony murder. Now let’s switch it up a bit. Say during the robbery the clerk distracts your friend, grabs the gun he has under the register, and kills your friend. Guess who gets charged with murder. Not the clerk. You do. What if the clerk misses your friend and kills someone who just happened to walk in the gas station? Same result. You get charged with felony murder.
As the Illinois Supreme Court explains, ““It is immaterial whether the killing in such a case is intentional or accidental, or is committed by a confederate without the connivance of the defendant.., or even by a third person trying to prevent the commission of the felony.”
FELONY MURDER ACROSS THE USA
Illinois was the first state in the USA to officially adopt a felony murder statute in 1827. Today, forty-four states and the Feds continue to charge people everyday with this type of murder. Six states, Arkansas, Hawaii, Kentucky, Michigan, New Hampshire, and New Mexico, do not have felony murder on the books.
Outside of this small minority of states, the remaining forty-four states apply felony murder in two different ways: Proximate Cause felony murder & Agency felony murder.
The proximate cause theory states that you are liable for any death proximately resulting from the unlawful activity. This is the case in Illinois, which is a proximate cause theory state. The “unlawful activity” are the above listed felonies. Proximate cause felony murder allows for criminal liability for any death connected to the underlying felony. For instance, when the clerk kills your co-defendant or an innocent bystander.
Agency theory limits criminal liability to only those deaths caused by you or you or co-defendant. That means you can’t be charged because the clerk shot your buddy or someone who had the bad luck of walking in and catching a bullet.
Nineteen states and the feds have proximate cause felony murder like Illinois. Twenty-five states use agency theory.
HOUSE BILL 1615
Illinois lawmakers are thinking about changing the way we do felony murder in Illinois. They idea is to change Illinois from a proximate cause based felony murder to an agency theory felony murder. The bill aims to change the language:
“attempting or committing a forcible felony other than second degree murder.”
“In furtherance of the crime, he or she personally causes the cause the death of an individual; or (4) he or she, when acting with one or more participants, commits or attempts to commit a forcible felony other than second degree murder, and in the course and in furtherance of the offense, another participant in the offense causes the death of an individual, and he or she knew that the other participant would engage in conduct that would result in death or great bodily harm,”
Note, this proposed criminal justice reform bill does not abolish felony murder. Far from it.
If the police can establish evidence that you knew your co-defendant “would” engage in “conduct that would result in death or great bodily harm” you still get charged with first degree murder. The key word here is “would. ” Specifically, would v. could.
When you add a gun into the mix of any crime, the law assumes that you are potentially engaging in conduct that could cause death or great bodily harm simply by using the gun in the commission of the crime. That means you don’t have to know your buddy was going to shoot anyone, if you knew a gun was going to be involved in the robbery.
In using the word “would” it would seem that logic doesn’t apply. You may have wanted to rob the gas station but you didn’t know your buddy would shot the clerk aka engage in “conduct that would result in death or great bodily harm”
If so, and the courts interpreted it this way, Illinois would still have felony murder, but the law would hold those who actually wanted to killed someone to a higher standard than those who found themselves faced with a dead body after a stupid plan goes wrong because of a hot headed associate or self defending citizen. It could take Illinois from being among the states with the harshest felony murder criminal liability to a progressive new face for felony murder.
NEW ILLINOIS YOUTH PAROLE LAW
For offenders convicted of felony murder who didn’t directly cause the death, a new law taking effect in June of 2019 will offer welcome relief. This law makes youth offenders convicted of murder automatically eligible for parole after a certain period of time incarcerated based on the offense.
Anyone locked up in IDOC for crime they committed before age 21 will be eligible to petition the Prisoner Review Board after:
- 10 years: most felonies
- 20 years: First Degree Murder and Aggravated Criminal Sexual Assault
- Never: predatory criminal sexual or child or if serving a life sentence.
Whether or not an offender is granted parole will be determined on a case-by-case basis by the Illinois Prisoner Review Board. Victims, witnesses, and others have the right to be heard for any request considered. The law’s sponsor, Rep Barbara Flynn Currie, stresses that this is not a “get out of jail free card.” It his, however, a chance for people who made stupid decisions in their youth to alleviate the weight of their sentences as adults. Offenders serving more than 20 years (the minimum) who committed a felony murder but didn’t pull the trigger should be prime candidates for this new law.
They say when you lie with dogs, you get fleas. More accurately, you lie with the dogs, you go to prison with the fleas. As the law stands, you still can and will be prosecuted for first degree murder even if you didn’t pull the trigger. Hopefully, House Bill 1615 actually becomes law and changes that.
Until it does, at Robert Callahan & Associates - Chicago Criminal defense lawyers, we know everything there is to know about felony murder: what it is, how it's changing, and most