By Helen Hitz.
Opinion: Arizona needs to enact an exception to the felony-murder rule in cases where the individual killed was an accomplice of the individual charged with murder. The addition of just six words to Arizona’s first-degree murder statute would mean justice for many Arizonans.
“We ain’t kill Jacob, we watched Jacob die before our eyes, that was our friend.”
Fourteen-year-old Johnny Reed was a caretaker for his grandmother who suffered from kidney failure. He was a recent middle school graduate. He loved to bake cookies and cakes for his family with second hand utensils he had thrifted from Goodwill.
Fourteen-year-old Johnny Reed was sentenced to serve fifteen years in prison, more years than he had been alive, for the murder of his friend Jacob Harris. Except Johnny did not kill Jacob; Johnny robbed a fast-food restaurant.
Who killed Jacob? Two Phoenix police officers, who shot Jacob in the back eleven times. As Jacob writhed in pain for over ten minutes, first responders withheld medical aid.
The Felony Murder Rule & The Co-Felon Exception
Arizona prosecutors can charge individuals with murder if any person dies during the commission of certain felonies, even if they did not aid, intend, or anticipate anyone’s death. While advocates of the so-called “felony murder” rule claim it prevents individuals from committing violent crimes, that justification does not apply in cases where the killed individual was an accomplice to the underlying felony.
The solution to this injustice is simple: the addition of six words—“other than one of the participants”—to Arizona’s first-degree murder statute would enable prosecutors to charge individuals with the underlying felony while avoiding the injustice of charging them with the murder of their friend.
Arizona could follow the lead of several other states—including Connecticut, New Jersey, New York, Oregon, Utah, and Washington—that have implemented this “co-felon exception” to the felony murder rule. Utah, for example, amended its felony murder statute to include the co-felon exception in 1973. One court, interpreting the language of the co-felon exception, stated it accomplished the exact purpose it was intended to: it prohibited prosecutors from charging individuals with felony murder if the person who was killed was a co-felon.
Why Support the Co-Felon Exception?
Both supporters and opponents of the felony murder rule can advocate for the co-felon exception, as it would not affect the vast majority of situations in which the felony murder rule is applied. The enactment of the co-felon exception would not affect prosecutors’ abilities to seek murder charges in cases where the individual who died was a victim, or a bystander, or a first responder.
The co-felon exception would only remove the potential for murder charges when the deceased individual was an accomplice to the crime.
Most individuals who intend to steal, do drugs, or run from the police do not intend to die in the process. Even more than that, though, they do not intend for their friends to die when they commit these offenses. Furthermore, many defendants are unaware that they could be charged with an accomplice’s death even in such cases. The potential to be charged with the murder of their friends does not play a role in their pre-crime cost-benefit analysis.
Therefore, while advocates of the felony murder rule argue it deters criminals from engaging in felonies that could potentially result in death, this justification is not convincing in cases involving the death of an accomplice.
What would and does deter potential defendants is the possibility of being charged with the crimes they are actually committing, such as burglary, drug usage, and fleeing from the police. These deterrent effects, which potential defendants are aware of and understand, would not be diminished if the co-felon exception to the felony murder doctrine was implemented.
Justice in Six Words
Advocates of the felony murder rule argue it provides the killed individual’s loved ones with justice. However, it often has the opposite effect when it is used to prosecute cases that would fall within the co-felon exception. Roland Harris, the father of Jacob Harris, advocated on behalf of all three of his son’s friends who were charged with his murder. He attended multiple court dates asking for leniency on their behalf, and yet prosecutors still pursued murder charges against all three of them.
Nothing can give Roland Harris his son back. Two police officers and eleven bullets took him away forever.
Nothing can erase then fourteen-year-old Johnny Reed’s memory of his friend being shot in the back eleven times, either. Just six words, though, could have at least prevented Johnny from being charged with Jacob’s murder and spending the remainder of his childhood and early adulthood behind bars.
Do you think this outcome is unjust? Is six words too high a cost for justice? Call your Arizona legislator and ask them to adopt the co-felon exception to the felony murder rule.
Helen is a third-year law student at Arizona State University’s Sandra Day O’Connor College of Law. Originally from Nebraska, Helen attended Lewis & Clark College in Portland, Oregon, where she graduated summa cum laude with majors in Economics and Psychology. Helen spent her 2L summer at Ballard Spahr’s Phoenix office, where she will return after taking the Bar Exam in July. In her free time, Helen enjoys reading, trying new restaurants with friends, and hanging out with her cats Screwdriver and Mimosa.