Noting disparities, Minnesota lawmakers look to limit use of felony murder rule

Jamiccia Donnerson remembers how one act while she was 16 years old changed her life.

Donnerson had left what she described as an unsafe home, became involved with a 23-year-old boyfriend and was in the car when he and another adult killed someone, out of her sight, she told the House Public Safety Committee last week.

Because of what is known as the felony murder doctrine, Donnerson was charged with 1st degree murder as an adult, later pled guilty to second degree murder and was sentenced to 12 years in prison.

“I did not know the victim, nor did I see the victim’s face,” she said. “I was charged and convicted of murder when I never murdered anyone.”

Initially meant to hold accountable all people involved in a murder even if they didn’t carry out the act, perhaps a crime boss who orders a murder carried out by underlings, the rule has long been used to capture people on the periphery of crimes. House File 1406 and Senate File 1478 would change the law, following the recommendations of a legislative-created task force of prosecutors, police, defense attorneys, corrections officials and victims advocates.

The felony murder law has been jettisoned by most other countries with English common law as the basis for their legal systems. Other American states have limited or eliminated its use, said Perry Moriearty, a professor at the University of Minnesota Law School and a member of the task force. In addition to being unjust, Moriearty said the task force found that those held legally liable are disproportionately people of color.

They are disproportionately young, she said, with 63% being under age 25 and 9% being under 18.

“Both the aiding and abetting and felony murder doctrines have long been controversial in both this country and internationally for one basic reason,” Moriearty said. “Their convergence allows a person to be charged with and punished for murder without ever intending to kill or, in some cases, even harm anyone.

“This violates one of the criminal laws’ clear axioms,” she said, “that a person should be held accountable for the harm they intended and they should be punished in accordance with their culpability. To do otherwise is fundamentally unfair and unjust.” Moriearty said the task force found five cases where the person who committed the murder was sentenced to less time than the person who didn’t physically cause the death.

Courts have interpreted the current aiding and abetting and felony murder doctrines to find that knowledge that a crime was being committed is enough and that active participation in the murder is not required. The proposal would limit first-degree murder to those who caused death or aided and abetted “with intent to cause death of a human being.” It would limit second-degree murder to those who caused a death or were “a major participant in the underlying felony who acted with extreme indifference to human life.”

The bills are sponsored by Rep. Cedrick Frazier, DFL-New Hope, in the House and Sen. Clare Oumou Verbeten, DFL-St. Paul, in the Senate. The House bill has only DFL cosponsors, but GOP Sens. Zach Duckworth of Lakeville and Eric Pratt of Prior Lake have signed onto the Senate bill.

In addition to changing the doctrine, the bill also provides a path for those convicted under the current law to petition for a reduction in sentence.

A Ramsey County judge or an appointed special master in St. Paul would review applications for eligibility but the resentencing would be in the county court where the original sentencing occurred.

Rep. Sandra Feist, DFL-New Brighton, supports the bill adding that there will still be criminal liability for people who, for example, drive getaway cars after a crime.

“If someone is driving, they are guilty of something, just not aiding and abetting and felony murder,” she said.  

John Choi, the Ramsey County attorney, and Mary Moriarty, the Hennepin County attorney, both submitted letters to the Senate Judiciary Committee supporting the bill. Robert Smalls, the executive director of the Minnesota County Attorneys Association, said the organization has some concerns over how “major participant” is defined and has questions about how the retroactive resentencing process would be conducted.

The heads of the Minnesota Chiefs of Police Association and the Minnesota Sheriff’s Association co-signed a letter that said while they “support much of the task force’s work,” they also asked for clearer definitions of “major participant” and asked for clarity as to how people convicted of felony murder would be notified, whether a special master is needed before cases return to the sentencing court and include a requirement that victims be notified of any proceedings.

According to a slide presentation by backers, “major participant” could include someone who used a deadly weapon during commission of the underlying felony or provided a deadly weapon to other participants and it was reasonably foreseeable that the weapon would be used in the underlying felony. It could also include people who”played a principal role in the act that primarily caused the death and it was reasonably foreseeable that such acts would cause death or great bodily harm.” 

Someone could be charged under aiding and abetting even though they were not present at the crime scene but who coerced a participant to undertake actions “in furtherance of the underlying felony that proximately caused the death, and it was reasonably foreseeable that such actions would cause death or great bodily harm.” Finally, it could apply to someone who impeded another person from preventing the death either by physical action or by threat of physical action when it was reasonably foreseeable that death or great bodily harm would result.

Rep. Dave Pinto, DFL-St. Paul, was the prime sponsor of the bill last session. He said there is some reluctance to be too specific in the statute in defining “major participant” and that the definition might be better as part of a judge’s instructions to the jury.

Donnerson is now 30, has a partner and is pregnant. But she said the murder conviction on her record still affects her life, from employment to being able to secure life insurance.

“Fifteen years later, I’m what you’d call a productive adult,” she said. “I have a job that I love, a place called home, I pay my taxes. But somehow I get punished for a bad choice someone made 15 years ago. When will the punishment ever stop?”