THE RAGE AGAINST THE FELONY MURDER RULE TRAP WHEN JUVENILES ARE PROSECUTED FOR MURDER IN CO-FELON KILLINGS.

• Author: Carter, Derrick Augustus

Table of Contents I. Introduction: Community Rage 966 II. Co-Felon Murder Liability as Applied to Juveniles 969 A. Juveniles Lack Mature Mens Rea 969 B. The Extent of Violence by Co-Felons 972 III. The Agency Doctrine 973 A. A Summary of Reasons for the Agency Doctrine 973 B. Justifiable Self-Defense 974 C. Causation Statutes 975 D. Independent Crimes by Co-Felons 976 E. Autonomy Doctrine 977 F. The Impact of Stand-Your-Ground Laws 978 IV. Proximate Cause Doctrine 980 A. Reasons for the Proximate Cause Test to Co-Felon Deaths 980 B. Application of Proximate Cause to Co-Felon Cases 981 C. The Causation Chain of Liability 983 D. Criminal Lives Matter 986 V. Provocative Acts Doctrine 986 VI. Conclusion 988 I. INTRODUCTION: COMMUNITY RAGE

Foolishness and fatality have stalked throughout the ages. (1) In a Chicago suburb, six black teenagers attempted to steal a car. (2) As they approached the driveway, the seventy-five-year-old white homeowner issued a warning, claimed he saw a knife, claimed they kept approaching, and fatally shot one teen in the head. (3) The other teens grabbed their stricken relative and sped away. (4) They eventually ran out of gas and were apprehended. Part of the chase was captured on the TV evening news. (5)

The Lake County, Illinois, prosecutor absolved the homeowner and charged the five teens for first-degree felony murder for the death of their cousin. (6) The prosecutor's position was relatively straight forward, he issued a press release stating, "[I]t's clear these offenders were solely responsible for placing the now-deceased 14-year-old offender in danger. They are ultimately responsible for his death. Had they not made the decisions they did make early Tuesday morning, this 14-year-old would still be alive today." (7) Under Illinois law, according to the prosecutor, the teenagers were liable for all deaths that ensued from their criminal venture. (8) The prosecutor affirmed the homeowner's claim of self-defense. (9)

In an uproar, community activists and newspaper editorials protested the prosecutor's over-charging practice. (10) The beleaguered teens were plunged in criminal charges, shamed for their actions, wept for their dead cousin, and understood they too narrowly escaped death. (11) Community activists and religious ministers protested draconian felony murder doctrines used to ensnare unwitting teens. (12) The activists argued that the criminal justice system seeks more understanding from white males who commit mass shootings than the blistering conditions that befuddle black youth. (13)

Some argued that using the criminal justice system to correct societal wrongs was akin to the volatile mandatory sentences leveraged against black youth in the drug war. (14) The Chicago activists soon discovered the national controversies surrounding the felony murder's proximate cause tool used to ensnare everything in its wake. (15) After many protests, community meetings, and political debates, the prosecutor dropped the murder charges against the teens and he charged lesser offenses. (16) Like a wildfire, however, the co-felon murder controversies are incendiary.

In Part II, this Article addresses the juvenile justice quagmire where many teenagers, who join as aiders and abettors, are prosecuted for murder due to the death of a co-felon, who was shot by the victim or police. This Article addresses the lack of mental maturity in juveniles regarding co-felon murder prosecutions. In Part III, this Article addresses the agency doctrine, the majority rule concerning co-felon liability, which assesses individualized culpability. In addition, this Article addresses Autonomy Principles and the impact of stand-your-ground statutes on co-felon culpability. In Part IV, this Article addresses the proximate cause doctrine, the minority rule, which applies a strict liability "but for" determination. Part V addresses the provocative acts doctrine, a hybrid determination, which reviews the aggressive behavior of the co-felons that attract resistance. The Article concludes with three recommendations and identifies an ultimate irony of proximate cause: that since co-felon's guilt is assured, there is an awkward motivation to subdue and harm victims. A reverse proximate cause to defeat a proximate cause.

2. CO-FELON MURDER LIABILITY AS APPLIED TO JUVENILES

   1. Juveniles Lack Mature Mens Rea

      According to the Department of Justice, the most common juvenile felonies are theft, assault, and drug crimes. (17) Theft and burglary are frequently the predicate offenses for felony murder. (18) Due to the allure of money, impetuosity, recklessness, and peer pressure, juveniles join their friends and partake in criminal misadventures. (19)

      In Layman v. State, (20) for instance, four teens in Elkhart, Indiana, attempted an afternoon house burglary and discovered an armed homeowner who shot and killed one of the teens. (21) The prosecutor charged the surviving teens with felony murder in the death of their comrade. (22) Indiana, like many states, has an automatic waiver rule where teens, from sixteen to seventeen, are waived into adult court. (23) The teenagers were convicted of murder and sentenced to forty-five to fifty-five years in prison. (24)

      On appeal in Layman, the defendants claimed that juveniles have diminished capacity to appreciate their criminal misadventures or possess sufficient maturity to reject peer pressure. (25) The defendants presented psychological literature showing that juveniles are incapable of foreseeing the risks inherent in their actions and the legal consequences. (26) The Indiana Supreme Court, however, refused to consider the juvenile issue, because the claims were not preserved for appellate review. (27) The Court, however, recognized that juvenile immaturity has substantial merit, especially when applied to co-felon liability. (28)

      In a trio of juvenile cases, Roper v. Simmons, (29) Graham v. Florida, (30) and Miller v. Alabama, (31) the U.S. Supreme Court has recognized that juveniles lack the fundamental mental maturity of adults in homicide prosecutions. (32) An adult's ability to foresee criminal consequences is much more advanced than an inexperienced juvenile. (33) The Supreme Court relied upon a settled body of research confirming the distinct emotional, psychological, and neurological attributes of juveniles, especially in cases associated with murder claims. (34) The proximate cause analysis allows for no individualized determination of a child's age, development, or intent. (35) Adolescents are "less likely to perceive risks and less risk-averse" than adults. (36) Adolescents are more prone to recklessness, impulsivity, and less likely to consider long term consequences. (37)

      Moreover, adolescents are easily swayed to negative influences and to peer pressures. (38) Adolescents are more likely to commit their crimes in groups. (39) They are attracted to mystery, financial rewards, and bravery inherent in criminal misadventures. (40) The classification of juveniles mens rea deserves a renewed appreciation of constitutional principles of due process and cruel and unusual punishment when teens are ensnared in co-felon killings by victims. (41)

      Historically, courts have recognized the mental differences in juveniles as compared to adults. (42) Director of Public Prosecutions v. Camplin, (43) for instance, a fifteen-year-old teen was on trial for the murder of a sexually abusive man. (44) The teen hit the man on the head with a heavy frying pan. (45) The trial judge instructed the jury that in applying the reasonableness standard they had to consider whether the provocation was sufficient to provoke a reasonable man, not a reasonable boy. (46) The House of Lords held that these jury instructions were wrong. (47) In considering the issue of self-control, the jury must ascertain reasonableness based on the ordinary boy standard, with the similar age of the accused. (48) The House of Lords stated that "to require old heads upon young shoulders is inconsistent with the law's compassion to human infirmity." (49)

      The juveniles in these capital cases committed notorious crimes. In Roper, the seventeen-year-old leader covered a woman in duct tape and drowned her. (50) In Miller, the juvenile hit the victim with a baseball bat. (51) Yet, the Supreme Court recognized the mental immaturity of their demoniacal actions. (52) The co-felon participants in the Chicago case, burglarizing a car, or in the Layman case, burglarizing a home, lack the moral descent of consciousness present in Roper and Miller. (53) The teenage co-felons at issue here are foolish kids, admittedly committing a theft, caught in a shower of gunfire. (54)

   2. The Extent of Violence by Co-Felons

      While the Layman court refused to consider the unpreserved juvenile issue, the court reversed the conviction on other grounds. (55) The court reaffirmed the co-felon murder doctrine, under Palmer v. State, (56) where the co-felons actively engaged in dangerous and threatening conduct during a kidnapping that resulted in the death of a co-felon. (57) In Layman, however, the court found that the teens were unarmed and nonviolent during the burglary. (58) The homeowner heard the loud invasion and he shot and killed one of the intruders at their moment of dread. (59) The court invoked a type of provocative acts doctrine, discussed in Part V, and reviewed the actions of the co-felons in causing resistance. (60) Finding no weapons or violent conduct by the teens, the court reversed the felony murder convictions for co-felon liability. (61)

      Whether peaceful or aggressive, any burglar or accomplice expects resistance when burglarizing a home. (62) The home is one's castle where deadly force is common to thwart a home invasion. (63) In Commonwealth v. Legrand, (64) for instance, the court recognized that "[e]very burglar is a potential assassin and when his felonious purpose encounters human opposition his intent to steal becomes...