In praise of Kansas. On Felony Murder, anyway.

An amazing thing happened today. I read a news story and it made my beloved state of Kansas seem better by comparison. I didn't know that could happen any more.

When it comes to felony murder, though, Kansas actually does do it better than some other states, Indiana in this specific instance.

Most people have a general sense that of what felony murder is. The simplest definition is that it's a killing in the course of an inherently dangerous crime. You break into a home and kill the surprised homeowner, you can be found guilty of felony murder. The death doesn't have to be premeditated or intentional. So if you're fleeing the crime scene in your car, police in pursuit, and you cause a car accident that kills someone: felony murder.

Felony murder as a concept was designed to ensure people who committed violent felonies that lead to someone's death wouldn't avoid punishment for murder because the state couldn't prove critical elements, like premeditation and intent. First degree murder varies a little from state to state, but that is generally the top level offense that requires both premeditation and the intent to kill. In Kansas, second degree murder simply removes that element of premeditation. A second degree murder is an intentional killing. Then there are the reckless murders, the voluntary manslaughters (think heat of passion killings), and the involuntary manslaughters. Felony murder was designed to make a prosecutor's job easier by allowing them to get a first degree, top level murder conviction, without all that pesky proof of intent to kill.

As a concept, it's not a terrible idea to say if you're going to break into a person's home with a gun and that homeowner ends up dead, we don't much care if you didn't go in intending to kill anyone. If you decide to commit a dangerous crime, especially if you bring a deadly weapon, and you kill someone, you really ought to suffer some serious consequences.

But the way felony murder works in practice, it covers non-triggerpersons. It covers getaway car drivers, even people who had no idea anyone was bringing a gun. Say you're part of a deal to buy $50 of pot and something goes sideways, leaving the buddy you went to the deal with dead, killed by the dealer. Well, selling drugs is an inherently dangerous felony, so you could find yourself grieving your friend from a jail cell as you face a felony murder charge.

Or even worse. You could be a stupid teen and decide to break into a home with 4 of your friends. You could all think the house was empty, you could all be totally unarmed. Then when the homeowner, who was home after all, confronted the intruders with a gun, killing one of them, you could be facing a felony murder charge. In Indiana, anyway.

That is what happened to 4 teens from Elkhart, Indiana. Four young men who were teens when the break-in happened are now all serving sentences in the five-decade range when not one of them nor their dead companion were armed. The only person who had a gun was the homeowner, the only shots fired a lawful act of self-defense. We've come a long way from making sure an armed criminal who kills someone doesn't convince a jury to convict him of some lesser crime.

And this is what brings me to how Kansas does it better. While a lot of odd scenarios can lead to felony murder charges in this state (that small-time pot deal is a real case), the Elkhart case is one that could not happen in Kansas. Here (and in many other states), we have recognized one limitation on the felony murder doctrine. When the act is the result of the lawful act of a third party, there is no felony murder.

When a homeowner or other crime victim kills an assailant, that is a lawful act of self-defense. When a police officer kills the criminal (assuming it's a proper police kill), it's a lawful act of defense of self and/or others. The Kansas rule is that no criminal liability can attach for that intervening, lawful act. Kansas is not alone in limiting felony murder this way. The last time I researched this question, the no felony murder for a lawful act rule was the rule in the majority of felony murder states.

Evidently, Indiana is not in that camp. Instead, Indiana wants to incarcerate these 4 young men for decades. The oldest of these guys is now 20; the break-in happened in 2012. So we're talking about dumb guys who were 15, 16, 17 years-old when they stupidly, criminally broke into a house they thought was empty. No doubt they committed a serious crime, one that undoubtedly traumatized the homeowner. No doubt the homeowner's life has been altered forever by the events of that day, through no fault of his own. And it's no doubt a tragedy that one of these foolish young men lost his life. But I don't see how society is made better by having the other four young men lose most of their lives, either.

In Kansas, these guys would have been convicted of aggravated burglary. Depending on their criminal histories, many of them might have been eligible for probation. To me, that seems a far more appropriate outcome. Our prisons are full enough without locking away for life teenagers who didn't kill anyone. We've gotten so far away from what felony murder was originally meant to be. It's past time to rein this out of control theory of murder back in. The Indiana Supreme Court heard arguments on the Elkhart case in February. I would guess the decision should come later this year. This would be an excellent chance for Indiana to restore a little sanity to its felony murder rule. Really, Indiana, it'll be ok to be like Kansas here. Just this once.