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U.S. Capitol Insurrectionists: Apply the Felony-Murder Rule?

An artist’s rendering of insurrectionists marching on the U.S. Capitol in Washington, D.C. Original illustration by Palash Das. © 2021 Svevak LLC. All rights reserved.

The Question

Beginning at noon on January 6, 2021, Donald Trump — at the time the U.S. President — was joined by others on the stage as he incited a rally of his supporters by telling them that the elections had been rigged and that they had to walk to the U.S. Capitol and “fight like hell” to “take back our country” with strength, not weakness. At least five people died as a direct result of this insurrection. The felony-murder doctrine is applied across the U.S. to convict individuals of murder, if they were associated with the commission of a felony, such as burglary or robbery, even if they hadn’t intended to commit a murder. Could the felony-murder rule be applied to all of the inciters of and participants in the January 6th insurrection?

The Facts: General U.S. Criminal Law — Intent Required

In the United States, most criminal statutes have a component of mens rea (literally translated from Latin as ‘guilty mind’), meaning that the prosecution must be able to prove beyond a reasonable doubt that the defendant committed the offense with a culpable state of mind. In other words, the defendant must be shown to have intended to commit the act that constitutes the crime. However, it is not necessary for the defendant to know if the act constitutes a crime.

In the U.S., mens rea is classified into five categories. Higher levels of mens rea, loosely thought of as blameworthiness, generally correlate with more severe liability and harsher sentencing. The mens rea classifications are as follows:

1. acting purposely: the defendant had an underlying conscious object to act

2. acting knowingly: the defendant is practically certain that the conduct will cause a particular result

3. acting recklessly: the defendant consciously disregarded a substantial and unjustified risk

4. acting negligently: the defendant was not aware of the risk, but should have been aware of the risk

5. strict liability: the defendant lacks a guilty state of mind

An example of a strict liability offense is statutory rape: it is a crime to have sex with a minor, even if the defendant honestly and reasonably believed that the person s/he had sex with was old enough to give legal consent.

The Facts: The Felony-Murder Rule — Intent not Required

Ordinarily, under the principles of criminal law, a person must have the intent — the mens rea — to commit a murder in order to be convicted of murder.

The felony-murder rule is an exception.

The felony-murder rule allows a defendant to be charged with first-degree murder for a killing that occurs during a dangerous felony, even if the defendant is not the killer. The felony-murder rules is applied only to those crimes that are considered inherently dangerous. What is the rationale for such a departure from the ordinary requirement of intent (mens rea)? It is deterrence. The notion is that by empowering the courts to convict and sentence a defendant for murder, even if s/he only intended to commit a serious crime that is not a murder, the defendant would be deterred from committing the serious crime in the first place.

How is the felony-murder rule applied?

The Facts: The Felony-Murder Rule — Examples from Illinois

In the U.S. state of Illinois, the felony-murder rule allows prosecutors to charge a defendant who commits a forcible felony with first-degree murder when someone is killed in the course of that crime, even if the defendant did not directly cause the death. A forcible felony includes treason, criminal sexual assault, robbery, burglary, and any other felony which involves the use or threat of physical force or violence against any individual.

Below are described just three recent felony-murder cases in the state of Illinois.

Case 1. On March 11, 1992, James DeBerry, Myron Gaston, and Chris Jones entered the home of 15-year-old Marshan Allen, an African-American boy, and his brother James Allen, and robbed them at gun-point of drugs and about $4,000 in cash. On March 16, 1992, Marshan Allen accompanied Darnell Dixon and Eugene Langston, both friends of James Allen, in a van to the home of Gaston and DeBerry. Dixon and Langston Fired gunshots at the door as Marshan returned to the van. From the van Marshan heard four or five gunshots, whereupon Dixon and Langston returned to the van. Police later found DeBerry and Elroy Gaston, Myron Gaston’s brother, dead inside the house from multiple gunshot wounds. Under the felony-murder rule, prosecutors charged Marshan Allen for the murders of Gaston and DeBerry, resulting in a life sentence without parole for the 15-year-old boy, a juvenile.

Case 2. On July 8, 2012, Tevin Louis, a 19-year-old African-American man, and his best friend Marquise Sampson, also a young African-American man, allegedly robbed a local gyros shop of about $1,250. As Louis and Sampson fled from the scene, they became separated. The police pursued Sampson and fired at him three times, killing him. Under the felony-murder rule, Tevin Louis is now serving a 32-year sentence for armed robbery and an additional 20-year sentence for Sampson’s death.

Case 3. In August, 2019, six male African-American teenagers, including a 14-year-old boy tried to steal a car out of a man’s driveway one night. The man, a 75-year-old European-American man, shot and killed the 14-year-old boy. The man was neither arrested nor charged in the boy’s death. However, the state’s attorney charged all five surviving teenagers with first-degree murder under the felony-murder rule.

The Facts: Events — and Felonies — of January 6, 2021

Beginning in the morning of January 6, 2021, Donald Trump, his personal lawyer, Rudolph Giuliani, Trump’s sons, and others walked onto an outdoor stage within walking distance of the U.S. Capitol. They addressed a rally of Trump supporters by telling them that “[a]ll of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they’re doing,” that “we’re going to walk down… because you’ll never take back our country with weakness,” that “if you don’t fight like hell, you’re not going to have a country anymore,” and that “[l]et’s have trial by combat.”

Subsequently, within hours, Trump supporters — many carrying guns, bombs, high-voltage Tasers, and other weapons — assaulted police guarding barricades surrounding, and the doors of, the U.S. Capitol, shattered locked windows of the Capitol building, forcibly broke into the building despite its locked doors, assaulted police within the building, burglarized the offices of some of the elected members of Congress, and robbed various articles inside the building. Trump supporters shouted and/or texted: “stop the steal” and “I may wander over to the [D.C] Mayor’s office and put a 5.56 in her skull” and “burn D.C. to the FKG ground” and “dead bitch walking [to Nancy Pelosi].” Some Trump supporters erected a noose; others shouted and tweeted “hang Mike Pence [the U.S. Vice-President].”

At least five people died as a result of the incitement of insurrection, and subsequently, the insurrection of January 6th, including police officer Brian Sicknick, who according to the Capitol Police had been “injured while physically engaging with protestors” and collapsed as a result of his injuries. Ashli Elizabeth Babbitt, one of the insurrectionists was fatally shot by Capitol Police as she attempted to climb through a shattered window in a barricaded door leading into the Speaker’s lobby in the U.S. Capitol.

Insurrection, including inciting insurrection, advocating the overthrow of government, assault, burglary, and attempts to murder are all felonies.

Since, on January 6, 2021, at least five deaths resulted from the felonies committed by the inciters and rioters, could the felony-murder rule be applied to all of them?

Let’s explore this question through, first, a narrow Karmalens, and then, a wide Karmalens.

What is a Karmalens?

There are myriad ways of being in and interacting with the world. All of these fall on a spectrum. Where you, I, or anyone else fall on this spectrum is determined at least in part by the radius of what I call our KARMALENS (sphere). The term Karmalens refers to an analysis of the world through the lens of Karma, i.e., of Cause and Effect. If my Karmalens is narrow, i.e., has a small radius, I will tend to adopt an INDIVIDUALISTIC way of being, meaning I will consider the effects of my actions and thoughts only on myself and extensions of myself — like my family and friends — and on my immediate surroundings — like my home and neighborhood. If my Karmalens is wide, i.e., has a large radius, I will tend to adopt a SUSTAINABLE way of being, meaning I will consider the effects of my actions and thoughts on humans, other life forms, and resources across the earth, even at large distances from myself in time and space.

Looking through a narrow Karmalens

The narrowest Karmalens one could adopt in exploring whether, and how broadly, the felony-murder rule could be applied is a Karmalens with a very small radius, namely a Karmalens that takes into account only the applicable laws and the immediate facts of each case.

Almost all of the jurisdictions (including the 50 states) in the U.S. have some form of a felony-murder rule, with varying degrees of culpability required of the defendant in order to charge him/her with murder.

In 2017, seven jurisdictions required culpability for murder, effectively rejecting the felony-murder rule. In other words, on those jurisdictions a defendant, who has committed a felony cannot also be charged with murder unless s/he intended to commit a murder. Two jurisdictions required a mens rea of recklessness with respect to a murder, six jurisdictions required a mens rea of negligence, and eight jurisdictions required a mens rea of malice. However, the majority of jurisdictions, namely 28 states, required no culpability. In other words, these states can charge a felony-committing defendant with murder, even if the defendant has no intention whatsoever to commit a murder.

The federal felony-murder law is encoded in 18 U.S.C. §1111:

(a)… Every murder… committed in the perpetration of, or attempt to perpetrate, any… murder, kidnapping, treason, espionage, sabotage,… burglary, or robbery…; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Burglary is a crime that can potentially encompass other crimes, since burglary may be defined as: unlawfully entering or remaining in a building with the intent to commit another crime. Thus, if Rioter A had broken a window to enter into the U.S. Capitol building, Rioter A could be charged with burglary. Furthermore, if Rioter B had had the intent of stealing a document from Nancy Pelosi’s desk, but had entered the Capitol building after other rioters had broken the windows, and had refused to leave when being asked to by the police, Rioter B could also be charged with burglary. Similarly, if Rioter C had entered the Capitol building with the intent of murdering the Vice-President, Rioter C could be charged with burglary as well.

It appears that theoretically, based only on the federal version of the felony-murder rule and the facts of January 6, 2021 alone, all of the inciters of and participators in the insurrection at the U.S. Capitol could be charged with murder, since at least two people died as a direct result of the insurrection and all of the inciters and participants could be shown to have committed one or more felonies.

However, the law is not well-settled in this area, and some analysts have advanced complicated theories for why only those rioters who committed the burglary directly linked to the deaths could be convicted of felony-murder.

Looking through a wide Karmalens

Applying a wide Karmalens to the question at hand would entail extending the radius of the Karmalens sphere out in both space and time to take into account various factors. Such factors include the nature of man-made laws, the enforcement/ application of laws in society, and the consequences of certain laws.

In general, in today’s representative democracies (at the national level), laws governing social order are written by (mostly) men and passed by a simple majority of the legislative branch. If a nation consists of a heterogeneous population, like India, Canada, and the United States, then what legislation (law) is passed and the content of the legislation are often determined by political compromises. Laws, or elements of laws, that are deemed not to be in the interests of the majority group — be it the ethnic, religious, ideological, and/or socio-economic majority — are thus often not passed by the legislative.

An example? Women’s suffrage. The majority of the all-male legislature of the United States did not find it palatable to enfranchise women from the time of the country’s founding until just over a century ago. As a result, legislation giving women the right to vote did not pass until 1920.

Thus, the nature of man-made laws is that they may be on the books, but they may not be just.

Even if a law may appear objectively just on its face, the enforcement/ application of the law may be inequitable. The felony-murder rule is a case in point. Although statistical data pertaining to the felony-murder rule are sparse, research has demonstrated that the felony-murder rule quantitatively emphasizes racial inequality — to the severe detriment of African-Americans. For example, a study found that African-American defendants are much more likely to be charged in felony-murder cases if the victim is European-American.

Another recent example of the unequal application of law comes to light when comparing police responses to recent protests in the United States.

In reaction to the brutal police murder of George Floyd, an African-American man, in May, 2021, Black Lives Matter protests took place all over the U.S. throughout 2020. The response? An overwhelming show of force by law enforcement in dozens of cities. The police used chemical dispersants, rubber bullets, and hand-to-hand combat in response to largely peaceful crowds, with a few vandals and looters. Over 14,000 arrests were made.

Compare this to the police reaction to the January 6th insurrection, where mobs of people — many armed with weapons — assaulted police officers, overran barricades, and shattered windows to break into the U.S. Capitol with the intent of overthrowing the election results, looting, and physically harming — including murdering — elected members of Congress and the Vice-President. At least five people died. The response? Some policemen were alleged to have helped the insurrectionists, while others were seen taking selfies with the insurrectionists. On January 6, 2021, barely a few dozen arrests were made, with others escorted from the premises without handcuffs.

The Black Lives Matter Global Network Foundation said in a statement: “When Black people protest for our lives, we are all too often met by National Guard troops or police equipped with assault rifles, shields, tear gas and battle helmets,” but “[w]hen white people attempt a coup, they are met by an underwhelming number of law enforcement personnel who act powerless to intervene, going so far as to pose for selfies with terrorists.”

Finally, when looking through a wide Karmalens one must ask: what are the consequences of certain laws?

The felony-murder rule, despite having been adopted by almost all jurisdictions in the U.S., is widely criticized, with several groups actively working to make it obsolete. The three cases described in brief above illustrate the unfairness of the operation of the felony-murder rule, in terms of the severity of the punishment meted out to bystanders of a killing during the commission of a felony.

The judicial system, otherwise known as the criminal justice system, is tasked with not only maintaining order in society, but with dispensing justice. If laws are unjust, then enforcing them, and then adjudicating based on these laws, will lead to injustice. Why is that a problem? If people feel that courts, which are bound to rule in accordance with the law, are dispensing injustice, then people will not be motivated to follow laws. The result will be anarchy and civil unrest.

My Answer

Could the felony-murder rule be applied to all of the inciters of and participants in the January 6th insurrection? Yes, it could. But if the rule is applied, it should be applied broadly, as done in the case of African-Americans — even when the defendants are juveniles committing felonies much less consequential than insurrection. Ideally, however, the felony-murder rule should be obliterated from all jurisdictions, as it unlinks mens rea (intent) from murder, and thus should not be applied to anyone, not even the inciters of and participants in the January 6, 2021 insurrection.

EcoSocial Issues Touched upon

I try to look at the world through a wide KARMALENS, especially when I am thinking about what I take to be the 7 core ECOSOCIAL (ecological + social) issues of our time: Indigenous peoples, environment, identity, gender violence, capitalism, health, and culture. This article touches on identity and culture.



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Maya Svevak

Maya Svevak

Maya Svevak is an activist, artist, and author. She writes both non-fiction and fiction and is the creator of the universe of Svevi Avatar. www.mayasvevak.com