Last week, the Supreme Judicial Court of Massachusetts narrowed the application of the state felony-murder doctrine, a controversial rule that has “perplexed generations of law students, commentators and jurists." Up until that decision, a person could be found guilty of felony murder in its purest form when he or she commits a felony that causes another person’s death — regardless of whether that result was intended. In other words, you could have been deemed culpable of first-degree murder even if you lacked the mental state associated with murder, say, the purpose to kill.
The rather dubious justifications for felony murder relate to retribution and deterrence. A person with felonious goals, so the argument goes, deserves to pay the price even for unintended results — especially when it comes to the particular types of felonies (armed robbery, sexual assault, kidnapping and so on) most likely to produce death. Advocates of the rule also argue that its mere presence deters would-be felons from engaging in those acts for fear of causing a death and being held accountable for murder. But felony murder has long had its critics, many of whom consider it an anachronism that clashes with the idea that the punishment should fit the crime.
The felony-murder doctrine originated in old English practices. Versions of the rule still exist throughout the United States, even though England abolished it in 1957, and a handful of states have done so as well. In last week’s decision, the Supreme Judicial Court took a major step in that direction.
The case involved a man named Timothy Brown, who was convicted of two counts of first-degree murder for providing a gun to two other men with the knowledge they were going to use it in a robbery. The two men proceeded to engage in a home invasion in Lowell that went awry, leading to the deaths of two people. The theory of the case against Brown was that he was an accomplice to the armed robbery by virtue of providing the firearm and that, under the state felony murder rule, he was liable for the ensuing deaths, despite his absence from the crime scene and his lack of intent to kill anyone.
On appeal, the SJC held that Brown’s convictions should be reduced to murder in the second degree in the interests of justice. This is significant. It means that instead of facing an almost-certain life sentence, Brown now has a real possibility for parole.
But the long-term value of the case resides with the concurring opinion by Chief Justice Ralph Gants, which garnered a total of four votes from the seven-member court and is now part of the law of the Commonwealth. The chief justice found that, going forward, no one can be found guilty of murder in the first degree in Massachusetts unless prosecutors prove the defendant had the requisite “actual malice” regarding the murder itself. What would constitute malice in this context? According to Gants, this element would be met if the defendant “intended to kill or to cause grievous bodily harm, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result." This powerful holding serves to better align legal responsibility with moral responsibility — and to sideline a much-maligned doctrine.
Beyond its implications for the felony-murder rule itself, Commonwealth v. Brown might be seen as part of the SJC’s noble and seemingly inexorable march toward criminal justice reform. Consider this sampling from the Court’s case law over the past twelve months. Last month, the court held in Brangan v. Commonwealth that trial judges must account for a defendant’s economic situation in setting bail. In the groundbreaking Warren opinion last fall, the justices confronted the problem of bias in policing head-on by declaring that an African-American teenager’s decision to flee from the Boston police may not be used as evidence of “consciousness of guilt” because the reason for the behavior may stem simply from a desire to avoid the “recurring indignity” of being racially profiled. And, the court had an artful approach to resolving the cases tainted by disgraced former state crime lab chemist Annie Dookhan’s misdeeds.
These and other recent criminal law decisions by the SJC have shown the courage to do the right thing: to issue holdings that protect criminal defendants from government overreaching. The chief justice in particular has led the charge toward reform. Among other things, he has raised awareness about the risks of eyewitness misidentification as well as the harsh results generated by “mandatory-minimum” sentencing policies that prevent judges from crafting lenient punishments when warranted. Through his consistent leadership and deft jurisprudential touch, Ralph Gants is helping to make the Commonwealth a better place.
Daniel Medwed is WGBH News' legal analyst and a professor of law and criminal justice at Northeastern University.
