Do You Have to Kill to Be a Murderer?

Alabama law says no. Kant would be furious.

LaKeith Smith was 15 when, in February 2015, he and several friends burgled two homes in Millbrook, Alabama. When police arrived, some of Smith’s friends, including 16-year-old A’Donte Washington, engaged in gunfire with the police officers, and one of the officers shot and killed Washington. Now Smith has been charged and convicted of Washington’s murder even though Smith himself did not participate in the shootout (he did not even have a gun). In April 2018 a judge sentenced him to 30 years in prison for Washington’s death, plus an additional 35 years for two counts of theft and one count of burglary.

The case is worrisome for a host of reasons. We might reasonably object to sentencing a person to 65 years in prison for crimes that occurred when he was 15 years old. We might also object that the 35-year prison term for the burglaries themselves is a disproportionately harsh sentence. And we might worry about the role played by plea deals in this case. Smith went to trial after refusing a prosecutor’s plea deal of 25 years (his surviving accomplices took deals). Plea deals account for more than 90 percent of federal and state-level criminal convictions in the United States. In a context in which such deals are ubiquitous, they begin to look less like plea offers and more like trial threats (‘take the deal or you may face a much more severe punishment’). As Smith discovered, the cost of turning down a plea deal can be severe.

Clearly, though, the most troubling aspect of this case is that Smith was convicted and sentenced to 30 years in prison for a murder he did not actually commit. Smith was convicted under Alabama’s felony-murder law, which allows a person involved in a felony that results in a death to be charged with murder even if someone else was responsible for the death. Many US states have felony-murder laws, and they are typically used to hold members of a criminal group responsible for deaths caused by others in the group.


"Respecting people as autonomous moral agents seems at least to require that our treatment of them be responsive to choices they’ve actually made."


Smith’s case was unusual in that his friend Washington was killed by a police officer, yet Smith was punished for the killing. Even more bizarre was the fact that, because the police shooting was found to be justified, there was by definition no murder (which is, in legal terms, ‘the unlawful killing of a human being with malice aforethought’), and yet Smith was convicted and sentenced for felony-murder.

Advocates of the felony-murder law claim that the law helps reduce serious harms because it discourages offenders from using unnecessary force during the course of their crimes. However, there’s no clear evidence that the felony-murder law actually helps to reduce harms in this way. But even if the law served this purpose, it rests on shaky ethical ground.

Philosophers who write about legal punishment standardly reject the consequentialist view that we can justify punishing someone solely for the supposedly valuable consequences of doing so. Even if punishing one person for someone else’s actions does sometimes have valuable consequences such as helping to reduce serious harms, such punishment appears to violate Immanuel Kant’s respect principle, which instructs us always to treat people as ends in themselves, not merely as means to some ends. Essentially, Kant urges us to respect other people as autonomous moral agents, not as mere tools to serve our purposes. The history of philosophy is full of debates on what exactly Kant’s principle requires of us. But respecting people as autonomous moral agents seems at least to require that our treatment of them be responsive to choices they’ve actually made. Punishing someone for the actions of someone else violates this principle.

Not all punishment theorists endorse Kant’s moral and political theories. But all plausible accounts of punishment hold that it is unjustifiable to punish people for crimes they did not commit. Expressive retributivists believe punishment is justified because it conveys deserved blame, or censure, to wrongdoers. But if this is so, then to punish a person for a crime she did not commit is in effect to cast blame where it is not warranted. Rights forfeiture theorists contend that punishment is justified because when people commit crimes, they thereby forfeit their right not to be punished. But a person does not forfeit her right not to be punished for crimes she did not commit.


"The prohibition on punishing the innocent is a foundational commitment of any theory."


Other theories attempt to justify punishment on other grounds. But the prohibition on punishing the innocent is a foundational commitment of any theory.  Indeed, a decisive objection against a theory is its inability to rule out the punishing of the innocent.

Proponents of the felony-murder law contend, however, that those who choose to engage in serious criminal activity are morally responsible for whatever consequences follow, even if they are unintended. On this view, Smith was responsible for Washington’s death because he helped create the circumstances in which Washington was killed, even if he did not intend Washington’s death. In some contexts, we might find this underlying principle persuasive. Suppose someone plants and detonates a bomb with the intention of blowing up a building, but with no real thought given to the people who may be in the building at the time. We might understandably hold him responsible and blame him for the deaths that result even if they were unintended. If we believe any reasonable person would have considered the presence of people in the building, then we might take the offender to be culpable for their deaths even if he did not intend them.

Things seem different, though, in felony-murder cases such as Smith’s, where the unintended death is more directly attributable to other people’s actions. Smith did not participate in the gunfight, after all. Indeed, he did not even have a gun. We could debate whether the police officer or Washington himself was to blame for Washington’s death (a grand jury decided not to go ahead with charges against the officer, believing he had a good case for self-defense). But to blame and punish Smith for Washington’s death seems to stretch the notion of criminal responsibility too thin.


"Notice, too, how counterintuitive such assignments of responsibility seem if we move from the context of blameworthiness for wrongdoing to praiseworthiness for heroic acts."


Notice, too, how counterintuitive such assignments of responsibility seem if we move from the context of blameworthiness for wrongdoing to praiseworthiness for heroic acts. Suppose that during Smith and Washington’s first burglary, Washington had entered the house alone and had happened upon a murder about to take place. In this scenario, suppose that rather than having engaged in gunfire with the police, Washington instead incapacitated the assailant and thus saved the potential victim. In the meantime, Smith had been waiting outside as a lookout. Now imagine that when news spread of what happened, the media hailed Smith as a hero for stopping the murder. The intended victim and family members expressed their heartfelt gratitude to Smith, who, because he chose to engage in the burglaries, was responsible for whatever consequences followed from them, even though he didn’t actually thwart the attempted murder himself. If the praise of Smith seems misplaced in this case, we should consider whether blaming him for Washington’s death in the actual case is similarly misguided.

Proponents of the felony-murder law might object that a person is not responsible for all of the unintended consequences of his actions, but he is responsible for those consequences that are foreseeable. Walking in on an attempted murder is not a foreseeable consequence of a burglary, whereas a death resulting from a shootout with police is foreseeable. Whether the shootout with police or Washington’s death was something the 15-year-old Smith could’ve reasonably foreseen is debatable. But setting this issue aside, we should still be skeptical about whether people are responsible for all of the foreseeable consequences of their actions.


"Treating people as ends in themselves, rather than as mere means, requires at least punishing them for crimes they have actually committed."


Consider another example: suppose two characters, let’s call them Allen and Beth, are members of a search party looking for a missing boy. During the search, Beth discovers the boy hanging perilously off the edge of a cliff, and she rescues the boy, putting herself at significant personal risk along the way. Afterward, Beth discovers that Allen is being hailed as a hero for the mountainside rescue of the boy, even though he had been unaware of the boy’s plight. After all, Allen chose to engage in commendable activity, the search party, and it was foreseeable that the searchers might discover the boy in danger and in need of rescue. We need not deny that Allen has done something praiseworthy, taking part in the search party, to doubt that he deserves praise for Beth’s heroic rescue of the boy. Beth might understandably regard it as unfair for Allen to be praised for her achievement. ‘Sure, praise Allen for taking part in the search party,’ she might say, ‘but he wasn’t the one dangling from the cliff’s edge trying to reach the boy, after all.’

If we agree with Beth that Allen does not deserve praise for rescuing the boy from the cliff’s edge, then why should we accept that LaKeith Smith deserved blame and punishment for the shooting of his friend A’Donte Washington? Just as it seems more appropriate to praise Beth for rescuing the boy and to praise Allen for participating in the search party, so it seems that we should blame Smith for participating in the burglary but hold either the police officer or Washington himself morally responsible for Washington’s death.

Maybe it is understandable that, in the face of a tragedy such as this, the prosecutor, jurors and judge should want to hold someone responsible. Washington couldn’t be made to pay for what happened, and the police officer was found to have been justified in the shooting. So perhaps Smith and his other accomplices in the burglaries were just the nearest available candidates. But despite the desire to hold someone responsible whenever a tragedy happens, we should only punish people for what they have actually done, not for crimes that others committed as a consequence (even a foreseeable consequence) of their actions. Treating people as ends in themselves, rather than as mere means, requires at least this much.

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