Sin’s Fatal Taint: the Felony Murder Rule and its Discontents

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Sin’s Fatal Taint: the Felony Murder Rule and its Discontents

by Okla Elliott

We’ve all heard of outdated laws that remain on the books from earlier times — such as laws about how many pigs are allowed inside a house or those defining a pickle by means of a bounce test — many of which are good for a few laughs, given their perfect absurdity. There are untold numbers of such laws, and most of them are harmless enough, worthy of little more than a shrug of amazement at what people will make law. Unfortunately, not all outdated laws are so harmless. The felony murder rule dates back to sixteenth century Common Law in England, was adopted by America in the nineteenth century, and is all but entirely unknown, except of course to those who have been affected by it directly. The felony murder rule has at its heart a noble goal: to punish a murderer more severely if the murder is committed during a burglary, kidnapping, rape, or other such felonious offense. Why then did England repeal the rule entirely in 1957? Why would anyone want to see such a noble-spirited rule repealed? The reasons are numerous, but before we discuss what’s wrong with the rule, we should properly define it.

The felony murder rule, as defined by The Social Law Library of Massachusetts, states that “the defendant is guilty of first degree murder if the Commonwealth has proved beyond a reasonable doubt that the deceased was unlawfully killed during the defendant’s commission or attempted commission of a felony.” Sounds okay so far. Now let’s take a look at the definition of first-degree murder: “Murder committed with deliberate premeditation and malice is murder in the first degree.” First-degree murder is the most heinous of crimes, requiring the most vicious mens rea (the “mental state” of the perpetrator at the time of the crime, used as the means to determine the degree of legal culpability). It requires a truly cruel person to extensively plan and execute the malicious demise of another. Aside from child molestation or brutal rape, most of us would agree that there is no worse crime imaginable, and we would agree also that the worst punishment should be reserved for the perpetrators of such crimes. It is for this reason that first-degree murder has such a specific and unambiguous definition. And it is for this reason, coupled with the ambiguities inherent in the felony murder rule, that the rule must be repealed or, minimally, amended to allow for consideration of mens rea.

The most striking illustration of how these ambiguities can lead to a first degree murder charge which jars rational sensibilities and flies in the face of common sense is the 1997 case of Lisl Auman in Colorado. Auman and three friends drove from Denver to Buffalo Creek to retrieve some of her belongings from a lodge she had shared with an ex-boyfriend. They took her things, and the friends, in what can only be described as childishness, stole some of her ex’s belongings. So, now we have the requisite felony: burglary. Auman and friends drove back to Denver in separate cars, Auman ending up with Matthaeus Jaehnig, whom she had met that day for the first time. Before they reached Denver several cops, alerted of the break-in, tried to pull them over. Auman urged Jaehnig to pull over, but he refused. A chase ensued. Jaehnig, at one point in the chase, produced a gun and fired at the police. When Jaehnig stopped the car in front of Auman’s new apartment in Denver, Auman ran to the police and gave herself up, wanting nothing to do with Jaehnig, and attempted to warn them of what sort of gun he had. Jaehnig ran and, before the events were over, had killed a cop and then himself. Now we have a death connected with the commission of a felony.

Auman was safely handcuffed in the back of a police car when Jaehnig shot and killed a police officer. The felony occurred miles away in a different city. She was later convicted of first-degree murder by strength of the felony murder rule. According to my count, she was guilty of, at most, breaking-and-entering and burglary, crimes I feel she should pay for (though perhaps not too harshly considering how romantic break-ups and domestic squabbles tend to go). Yet she was found guilty of one of the worst, if not the worst, crime imaginable and was sentenced to life in prison as though she had committed murder “with deliberate premeditation and malice,” when in fact she committed no murder at all. (Fortunately, in 2005, her sentence was overturned after much lobbying by the likes of Johnny Depp and Hunter S Thompson, but not every victim of this outdated law is so lucky.)

Judge Rudolph Gerber suggests, in his book Cruel and Usual: Our Criminal Injustice System, that the origins of the felony murder rule may date back to medieval times when “sinful tainting” was still a popular notion. A person was tainted with the crime, even if she didn’t commit the crime herself. This was doubly true of Auman’s case, since Jaehnig was vaguely connected with a neo-Nazi group and the cop he shot was black. Jaehnig—not Auman—was vaguely connected with a neo-Nazi group, and Jaehnig—not Auman—shot a police officer, yet during her trial Auman was accused of being a white supremacist and was, as I’ve stated, convicted of first degree murder. In effect, her few hours of acquaintanceship with Jaehnig so tainted her that she must now serve life in prison without parole in order to atone. (The suggestion of racism was not ultimately necessary to convict her of first-degree murder. I mention it here only to illustrate the psychology of “sinful tainting” still in our legal practices.)

There are of course less morally clear cases, such as Janet Danahey’s in Greensboro, NC. Danahey, as a valentine prank on an ex-boyfriend, set fire to a futon on the balcony of his apartment. The fire grew beyond her expectations and set the entire building ablaze. In her panic she fled to her parents’ house in the nearby city of Weddington without calling the fire department. Four people died, several others were injured when they leapt from second- and third-story windows, and the property damages for both the building owner and tenants were tremendous. Here we have an emotionally electrified case in which four innocents, all young adults striving to achieve careers or college degrees, died in a painful and horribly frightening way. Some (though not all) of their family members were, rightly, so angered that they demanded the harshest punishment possible against Danahey, who had done them irreparable emotional and psychological damage. The community was—again, rightly—outraged.

In court, District Attorney Stuart Albright chose to use the felony murder rule, and Danahey was charged and convicted with four counts of first degree murder and one count of arson (the felony necessary to invoke the powers of the felony murder rule); all of which earning her life in prison with no chance of parole. Without the felony murder rule, Danahey could have been convicted of four counts of involuntary manslaughter and one count of arson which could have earned her anywhere between 30-120 years in prison with a chance for parole after 10-30 years, depending on the judge. It is therefore possible that Danahey would have remained imprisoned until her death.

“But what if she didn’t?” an angered voice from the back of the room yells. “She deserves the worst she can get for what she did.” And though I am sympathetic to this call of outrage, it strikes me that she doesn’t deserve the worst punishment possible. As mentioned earlier, the worst punishment should be reserved for the worst crime. Imagine now the case of a person who set the same fire in the same apartment building “with malice and deliberate premeditation” to kill those four people and harm the others, as opposed to a prank gone horribly awry. We would all make a moral distinction between the person who maliciously planned to kill people and the person who—stupidly and childishly, though not cruelly and bloodthirstily—played a prank that ended up killing people. The mens rea of these two persons would be radically different. The felony murder rule, however, with its brutal ambiguity, does not distinguish between these two cases. Both perpetrators would be convicted of four counts of first-degree murder and one count of arson. It doesn’t require a lawyer or professor of ethics to see that there is a clear moral difference, yet the only option in most states, when the felony murder rule is invoked, is a charge of first-degree murder.

Currently, almost every state has the felony murder rule still in place. Twelve of the thirty-eight states that have capital punishment allow for no charge other than first degree murder when the rule is invoked, and even in states such as Arizona, where a defendant can no longer be sentenced to death by strength of the rule, life sentences are the most common punishment doled out in felony murder cases.

I will now turn around an earlier question: Why wouldn’t anyone want the felony murder rule repealed? There are two groups of people who generally object to repealing the rule, DAs and the families of victims. The emotional anguish and urge for revenge on the latter’s part is understandable (though it’s that natural tendency to over-punish personal offenses that caused Hobbes, and the whole of the civilized world, to put faith in an objective, third-party judicial system). Many DAs, however, enjoy the existence of the felony murder rule, because it makes their jobs easier. In order to win a first-degree murder conviction (which, coincidentally, looks very good for their track records), they only have to prove intention to commit the felony and that a death occurred somehow connected—however loosely—with said felony, and the defendant is automatically found guilty of first-degree murder. I would like to think that the DAs who fight to keep the felony murder rule on the books are doing so out of a misguided sense of justice, though I have my doubts.

Our laws should adhere to a rational sense of moral rightness, whereby the degree of the crime and the mens rea of the perpetrator determine the degree of the punishment. The cases cited in this essay illustrate how the felony murder rule can lead to a conviction of first-degree murder when the defendant killed no one, and how it fails to make clear and obvious moral distinctions. The felony murder rule is therefore neither rational nor morally sound, and should for these reasons be repealed unequivocally. Our justice system should busy itself with discovering the guilt or innocence of a defendant and then—if she’s found guilty—punishing her for the crimes she’s committed, not the crimes of others; and her sentencing should be equal to her crime. If a DA wants to win a first-degree murder conviction, then she should be required to prove that the death was caused with “deliberate premeditation and malice,” which is the defining quality of first-degree murder. The felony murder rule is a throwback to an outdated and overly ambiguous law that has been repealed in its native country. If our justice system is meant to serve justice—as its name implies—it must rid itself of this fatally antiquated legacy.

SATURDAY POETRY SERIES PRESENTS: KIM ROBERTS

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Photograph by Dan Vera

LONG DIVISION
by Kim Roberts

I was never good at math
but I understood

the heavy burden
when a number was left over:

you had to carry it,
the weight bending your frame

until your whole body formed
a less-than sign.


(“Long Division” was originally published in Prime Number and is reprinted here today with permission from the poet.)


Kim Roberts just published her third book of poems, Animal Magnetism, winner of the Pearl Poetry Prize (Pearl Editions, January 2011). She is editor of the online journal Beltway Poetry Quarterly and the print anthology Full Moon on K Street: Poems About Washington, DC (Plan B Press, 2010).

Editor’s Note: Today’s poem exemplifies the efficient beauty of simplicity. Using few words in four brief stanzas, Ms. Roberts clearly conveys her message as effectively as she might have in a more verbose poem, perhaps more so. Tackling a concept as large as the heavy weight of burden one carries in life, this poem masterfully takes metaphor by the reigns, leaving the reader thinking of much more than math, “the weight bending your frame.”

Want to read more by and about Kim Roberts?
Kim Roberts Official Website

Agrarian Socialism In Oklahoma: The Early Twentieth Century

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Oscar Ameringer an Oklahoma Socialist Leader

Agrarian Socialism In America: Marx, Jefferson, and Jesus in the Oklahoma Countryside, 1904-1920. By Jim Bissett (Norman: University of Oklahoma Press, 1999.)

Most Americans are unaware of the fact that the rural state of Oklahoma supported the strongest socialist movement that any American State ever produced. This apparently anomalous development has been chronicled by a number of scholars over the past 40 years. The first modern study was Howard L. Meredith’s 1969 Ph.D. dissertation “A History of the Socialist Party in Oklahoma, ” which was soon followed by Garin Burbank’s When Farmers Voted Red and James R. Green’s Grassroots Socialism in 1976 and 1978 respectively.(1) While all three are excellent studies, a more recent book, Jim Bissett’s Agrarian Socialism in America: Marx, Jefferson, and Jesus in the Oklahoma Countryside, 1904-1920 (1999), covers the same ground most successfully to date through clear arguments and an energetic and sympathetic point of view. READ MORE

Music Lessons

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John at the piano, a few years before beginning lessons.
John at the piano, a few years before beginning lessons.

Music Lessons
By John Unger Zussman

Last month, I wrote about a misguided art lesson that undermined my creativity as a child. Here I recall my early music lessons—with a decidedly different result.

“Sing!” commanded my piano teacher, Mrs. Maas, at my very first lesson. Even at seven, I understood that she did not want me to vocalize along with those first simple explorations of the notes around middle C. No, she meant make the piano sing. But what did that mean? And how to do it? I had no idea, and apparently it was too obvious to ask.

Whatever she had in mind, I somehow had a talent for it. I practiced diligently and progressed quickly, encouraged by the lavish praise of my parents and teachers. At my first-year recital, Mrs. Maas practically had to drag me off the stage as I played, from memory, every piece in the Bernice Frost first-year method book READ MORE

The Coming Crisis of Global Food: A Break from The Crisis with W. Berry

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By Liam Hysjulien

While I had already begun writing a piece on the looming 2011 food crisis, in lieu of my birthday, I decided to shelve it for this month.  Instead, I felt the words of Wendell Berry offered more on the subject of food, hope and the future than I could possibly say.  I know heroes are supposed to have feet of clay, but few people inspire me more than this man.  Enjoy. …READ MORE

SATURDAY POETRY SERIES PRESENTS: ADAM EAGLIN

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HEAT
by Adam Eaglin

It wasn’t a dream, more like a vision,
if vision meant steam rising from
a body, meant heat from the living—

I became the eye of a round-stomached cobbler.
I became a word in a fable. I became
the tongue in the mouth

of a girl. I became limbs like those of trees stripped of bark.
I became a shade of vacant white, like light
lifting from the skin of the sun.

Once I was attractive, once, you could smell it on me
like kerosene, that kind of thing, about to catch fire.

I never used the word beauty except when it was required,
ironically, but then I became the word, a creature transforming
in the moonlight.

Something strange happened then.

A man becomes frightened,
not at what he has done, but what he is about to do;

The wet of grass on skin,
the cold of the night
when you lay your body down.

Once I was attractive, once—

and then I became the night,
and then I became the air.

(“Heat” was originally published in Prick of the Spindle and is reprinted here today with permission from the poet.)

Adam Eaglin was raised in Summerfield, North Carolina, and has degrees from Duke University and Boston University. His poetry and reviews have appeared in Gulf Coast, Publishers Weekly, and the Harvard Review. A recipient of the Robert Pinsky Global Fellowship, he works in publishing in New York City.

Editor’s Note: Adam Eaglin is a master of metaphor. He effortlessly manipulates images to create an Alice in Wonderland-esque world for his readers to slip into as if a rabbit hole. With moments like “if vision meant steam rising from a body, meant heat from the living,” and “The wet of grass on skin, the cold of the night when you lay your body down,” we the readers are taken on a journey into a man’s inner thoughts and experience and into the relationship he inhabits and the transformations that ensue as a result thereof.

Want to read more by and about Adam Eaglin?
The Atlantic
Duke University Libraries
Vanity Fair
Words Without Borders

Erlking

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[The following translation was originally published in Per Contra.]

Erlking

by Johann Wolfgang von Goethe

(translation by Okla Elliott)

Who rides so late through windy night?
A father holding his child tight.
He has the youngster well in his arm,
He keeps him safe. He keeps him warm.

“My son, what twists your face with bother?”
“Don’t you see the Erlking, father?
The Erlking with crown and shroud?”
“My son, it’s but a sliver of cloud.”

Lovely, lovely child, come with me.
Such wondrous games you will see.
What bright flowers there are by the shore,
What royal clothes my mother has in store.

“Father, my father, are you listening
To what the Erlking is promising?”
“Child, calm yourself, be calm, please.
It’s just the wind rustling dried leaves.”

Sweet boy, don’t make such a fuss;
My daughters are waiting on us.
My daughters sing the nightly tunes
to cradle you beneath the moon. READ MORE

Andreas Economakis

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Yiayia and Boy George (photo by Andreas Economakis)

“Perfect Makeup”

by Andreas Economakis

My grandmother Anastasia, or yiayia as I called her, must have studied Zen. She could spend hours seated motionless in her jewelry store in the Nile Hilton, a geriatric Greek sphinx staring blankly ahead. Overwhelmed by the utter tranquility in her shop, I would escape as often as I could whenever I visited her in the summers, wandering around the dusty and chaotic streets of Cairo for as long as I could stand. I would beat a hasty retreat to the cool sanctuary of the air-conditioned Hilton, with its refreshing “Asir Lemoon” lemonades and overwhelmed pink tourists, only when my feet could carry me no longer through the blazing Saharan heat and pungent city smells.

Cairo has a peculiar odor. Anyone who’s ever visited this ancient bustling city of 17 million or so souls will attest to this. You become aware of the city’s pungency from the very moment the airplane doors crack open on the sizzling tarmac of Cairo International Airport. I’m not a smell specialist, but if you put me in a headlock I guess I’d equate the city’s smells to a batch of ripe tropical fruit fermenting in old petrol smog. The Hilton was a natural haven from all this, a controlled oasis of sorts. Like any desert wanderer, I would invariably end up at the oasis when on the verge of heat stroke. In fact, I think the Hilton’s café was named The Oasis, if my memory serves me right.

There was a bookstore next to my grandmother’s shop and I started buying and feverishly reading anything I could lay my hands on. I would sit in this red and white vinyl chair behind the spotless glass of the jewelry store’s front door for hours, my head buried in Hemingway and Kazantzakis and London and Marquez. Occasionally, I would peak out at the crowds of sweaty tourists that drifted by, chuckling to myself, knowing full well what state the poor sods were in. I’ve never been good at playing salesman and I generally ignored my grandmother’s pleas to help with the odd customers who walked in, preferring my role as family bookworm. My grandmother would yell at me for reading so much, telling me that it was bad for me.

One day, I looked up into the Hilton lobby and saw Boy George walk by. I couldn’t believe my eyes. There he was, in his black robe, jewels, long hair, bangles, make up and signature bowler hat. “Dirty, filthy hippie!” my grandmother blared out, shifting uncomfortably her seat. “I bet he sleeps with dogs!” she added. I stared at my grandmother with wide eyes, not so much surprised at her comment but at the fact that she had moved in her seat. I explained that he was a famous musician, a very rich, dirty filthy hippie. “Really?” she asked all bright-eyed and bushy tailed. My grandmother might have been conservative, but a fool she was not. Visibly excited, she asked me to bring him into the store so she could meet him.

I ran out into the lobby and caught up with Boy right before he went into The Oasis. “You’re Boy George!” I said, eyelashes batting up and down over the big stupid grin that was plastered all over my face. Boy stopped and turned toward me, smiling. A pleasant smell overtook my nostrils. 150 degrees outside but the man smelled like a bouquet of freshly cut flowers. I told him that my grandmother wanted to meet him and pointed to our shop. He courteously followed me in and I made the introductions. Boy’s presence seemed to overwhelm my grandmother. It was as if an alien from planet Zork had stepped into her inner sanctuary. She totally forgot that she wanted to sell him some jewels. The only thing she could think of to say to Boy was that his make-up was perfect. Her own was always too heavy, gooped on as if with a builder’s spatula.

Perhaps feeling awkward at all the silence, Boy smiled and excused himself. My grandmother sprang back to life and asked me to ask him if I could take a photo of the two of them together. Boy said of course and I trained my pocket Hanimex on them, snapping what was to be my first “celebrity” photograph. Boy kissed my breathless grandmother on the cheek and exited with his invisible bouquet of sweet flowers. I ran up to Boy in the lobby to thank him. Right then another member of Culture Club walked up and looked at me with a mischievous look. Then Boy asked me if I wanted to join him and the band for a drink up in his room. They all giggled flirtatiously. I kindly declined and wandered back to my grandmother’s store as Boy and the band headed to the elevators.

“A nice man,” my grandmother said, “even though he dresses and smells like a girl.”

“Yeah,” I replied, my eyes trained on a white poodle that was being led through the lobby toward the elevators by a tiny bellhop in a silly outfit. The bellhop and the poodle followed a giggling Boy and the band into the elevator.

“But you can’t judge a book by its cover,” I added, just as the elevator’s doors closed with a ding.

–Andreas Economakis

This piece is part of a collection of stories on blindness entitled: The Blindness of Life.

Copyright © 2011, Andreas Economakis. All rights reserved.

For more stories by Andreas Economakis click on the author’s name below.

SATURDAY POETRY SERIES PRESENTS: KEITH WILSON

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HOW LIKE A POTATO
by Keith Wilson

How potato of you,
noticing with your many eyes
the hunched and gloveless scraping of frost
from the windshield of my car. Omniscient
of you. Or perceived from your closet
window. Maybe the crack of your door.

And then to bring me a pair
of your own—worn, leather and for the garden.
How warm and hearty,
how rich and filled with starch.

Or Summer in your lawn chair.

My arms filled with groceries
or school books, how you tilt yourself
so your skin appears the most rough and brown,
bruised from the heavy handling
since before you were pulled from the unforgiving earth
by Jesus—who must, from the sounds of it,
live in the apartment
on the other side of you.

How you vegetate so,
arms like vines lifting to light
despite the dark knots
in your stomach, how you manage
to forget the heavy smell
of warm coffee soil,
down here where I live.
Below.

How like a potato,
to sit away from the birds, smiling,
all ready to fry.


(“How Like a Potato” was originally published in Poetry Bay and is reprinted here today with permission from the poet.)


Keith Wilson Keith S. Wilson is an Affrilachian poet and Cave Canem Fellow currently living in Kentucky. A graduate of Northern Kentucky University, Keith’s work has appeared in Appalachian Heritage, Mobius, Evergreen Review, The Driftwood Review, Breadcrumb Scabs, Kudzu, and in the anthology Spaces Between Us. Keith is an editor for the multilingual online journal Public-Republic and co-editor for the culture blog We Who Are About To Die.

Editor’s Note: How clever of Mr. Wilson to compare a person to a potato in such a skillful manner. To create layers of meaning – the potato-like characteristics of a person with their many eyes watching and their tendency to act as if they are “rich and filled with starch” – spread on top of deeper, more meaningful discussions that relate to religion and socioeconomic divides. In addition to his clever wordsmithing and ability to relay deeper meaning, Mr. Wilson’s poetry appealed to me first and foremost for his deft ability to manipulate language and create beautiful verse with moments like “how you tilt yourself / so your skin appears the most rough and brown, / bruised from the heavy handling / since before you were pulled from the unforgiving earth.” Given the layers of this poem, I suggest giving it a second and even a third read in order to fully extrapolate meaning as if pulling roots from the soil.

Want to read more by and about Keith Wilson?
Keith Wilson’s Official Blog

Blindfold

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Blindfold

by Al Maginnes

Maybe the blindfold is not meant
as kindness for the condemned
like the choice of a final meal
or the last cigarette, a pleasure
meant to block awareness
of what’s coming. Instead it keeps
the living from seeing how
the eyes throttle with light
or glaze at the moment of impact
before the body empties into death.
In this age of performance, even an autopsy,
final audition of the body’s efficiency,
is theater. A TV doctor explains
how the flanges of the famous chest
are opened like curtains, the routines
of the reliable duo, systole and diastole,
the shuttle cocking of artery and vein,
the blood’s drifting clouds of toxins
all are measured and named,
no chance for curtain call
or final bow. In the film
I found on the internet and watched
because I started and could not stop,
the killers, not the condemned, wore masks.
He knelt before them as they read
their proclamations in a language
he was captive long enough to know
in fragments. His face a blank
of pure misery, glossed with sweat,
his hair twisted and on end,
some composure kept him still.
Perhaps he’d seen enough movies,
American enough to believe
in last-second rescues, the hero
who kicks in the door, guns blazing.
Maybe he believed this moment
a routine humiliation between
tea and afternoon prayers,
a ritual meant to be so frightening
that when water was thrown on him
or he was kicked, their laughter
let him breathe once more.
But the reading ended and one
of the masked men produced a long knife.
There was nothing swift nor spectacular
about what followed. Bodies wrestled
across the floor. Deep inside the scrum
started noise too high-pitched to be a scream,
noise I’d never heard a human make.
When the head was displayed,
it was no longer human, but something
molded from plastic and left too long
in the back seat of a car on a hot day.
If you watch this once, you will not
watch it again. In this world,
beauty and terror coax the same tears,
the voice of fear has no words,
the victim’s face, a trophy.
But morning still happens.
I get up, make coffee, walk the dog, things
I can do with my eyes closed.
Not until I read the paper or listen
to the news does the world take shape.
Some refuse the blindfold,
but most are grateful for a darkness
granted by a cloth so ordinary
it might have dried last night’s dishes,
then wiped the empty table free
of crumbs and ashes.


Al Maginnes is the author of four full length collections of poetry and four chapbooks, most recently Ghost Alphabet, which won the 2007 White Pine poetry prize and two chapbooks, Between States (Main Street Rag Press) and Greatest Hits 1987-2010 (Pudding House), which were published in 2010. Recent poems appear or are forthcoming in Southern Review, Georgia Review, Asheville Poetry Review, Cloudbank, Salamander, and Solo. He lives in Raleigh, NC with his wife and daughter and teaches at Wake Technical Community College. The above poem was originally published in Southern Poetry Review and is reprinted here with permission of the author.