UC Irvine Law Review Volume 11 Issue 4 Article 5 4-2021 The Twice Diminished Culpability of Juvenile Accomplices to Felony Murder Beth Caldwell Follow this and additional works at: https://scholarship.law.uci.edu/ucilr Part of the Criminal Law Commons, and the Juvenile Law Commons Recommended Citation Beth Caldwell, The Twice Diminished Culpability of Juvenile Accomplices to Felony Murder, 11 U.C. IRVINE L. REV. 905 (2021). Available at: https://scholarship.law.uci.edu/ucilr/vol11/iss4/5 This Article is brought to you for free and open access by UCI Law Scholarly Commons. It has been accepted for inclusion in UC Irvine Law Review by an authorized editor of UCI Law Scholarly Commons. First to Printer_Caldwell.docx (Do Not Delete) 4/13/21 10:18 AM The Twice Diminished Culpability of Juvenile Accomplices to Felony Murder Beth Caldwell* Introduction ..................................................................................................................... 906 I. The Felony Murder Doctrine and Accomplice Liability ............................. 913 A. Background Regarding Felony Murder ................................................ 913 B. Accomplice Liability for Felony Murder .............................................. 917 II. The Diminished Culpability of Youth in Adult Court ................................. 918 A. The Supreme Court & Adolescent Development .............................. 918 B. Adolescent Brain Development & Felony Murder ............................ 920 III. Recognizing the Twice Diminished Culpability of Juvenile Accomplices to Felony Murder Under the Enmund/Tison Factors ........... 923 A. Juveniles’ Capacity to Understand the Risk that Death Could Result ......................................................................................................... 924 1. Research on Adolescents’ Limited Understanding of Consequences .................................................................................... 924 2. Major Participant Analysis and Understanding Consequences .................................................................................... 927 3. Reckless Indifference to Human Life Analysis and Understanding Consequences ......................................................... 928 B. Juveniles’ Capacity to Intervene During or After the Killing ........... 930 IV. Resolving the Tension Between the Research & the Law .......................... 933 A. Individualized Assessments of Diminished Capacity ......................... 934 B. Limitations of an Individualized Approach ......................................... 937 C. Categorical Bar ......................................................................................... 939 Conclusion ....................................................................................................................... 941 * Associate Professor of Law, Southwestern Law School. 905 First to Printer_Caldwell.docx (Do Not Delete) 4/13/21 10:18 AM 906 UC IRVINE LAW REVIEW [Vol. 11:905 INTRODUCTION The felony murder doctrine is one of the most criticized rules in the field of criminal law,1 yet it remains firmly entrenched in most jurisdictions in the United States.2 Under felony murder rules, people who commit certain felonies may be convicted of murder even when they do not act with the mens rea that would typically be required.3 One of felony murder’s most troubling applications is to people who do not kill but who are accomplices to a predicate felony.4 Accomplice-based theories of felony murder are even more problematic when applied to juveniles, whose culpability is “twice diminished” due to their age and accomplice status.5 In 2018, the New York Times featured the story of Shawn Khalifa, who burglarized a house with three others when he was fifteen years old.6 The owner of the home was tragically killed in the course of the burglary. This had not been part of the plan. Shawn was “guarding the back door” while two older youth carried out the burglary.7 He “slipped into the kitchen and stole some chocolate candies. He briefly saw that the homeowner was seriously hurt, and he ran back outside.”8 For his participation in the burglary, Shawn was convicted of first-degree murder and was sentenced to life without the possibility of parole (LWOP).9 The case made its 1. See MODEL PENAL CODE § 210.2 cmt. 6 at 32–42 (AM. L. INST. 1980); see also Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without Principle, 31 ARIZ. ST. L.J. 763, 766–70 (1999) (criticizing the felony murder doctrine). 2. See WAYNE R. LAFAVE, CRIMINAL LAW 605, 690 (3d ed. 2000) (stating that the felony murder rule is “well entrenched in American law”); Kevin Cole, Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 AM. CRIM. L. REV. 73, 73–74 (1990) (explaining that felony murder is “quite durable” despite much criticism); James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law, 51 WASH. & LEE L. REV. 1429, 1431 (1994) (analyzing “how a rule of law that has been maligned so mercilessly for so long and that is putatively irreconcilable with basic premises of modern criminal jurisprudence has survived and promises to persist into the twenty-first century”); see also GUYORA BINDER, FELONY MURDER, at ix (2012) (stating that “[f]elony murder liability is part of homicide law in almost every American jurisdiction”). 3. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 511 (6th ed. 2012) (“The felony-murder rule facially applies whether a felon kills the victim intentionally, recklessly, negligently, or accidentally and unforeseeably.”); PAUL H. ROBINSON & MICHAEL T. CAHILL, CRIMINAL LAW § 15.3 (2d ed. 2012). 4. DRESSLER, supra note 3, at 511–12 (describing the theory of accomplice liability as it pertains to felony murder). 5. In Graham v. Florida, the 2010 Supreme Court decision prohibiting the sentence of life without the possibility of parole (LWOP) for juvenile offenders, the Court reasoned that “a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis.” 560 U.S. 48, 69 (2010). In this Article, I posit that felony murder cases involving juveniles raise a similar issue: a juvenile convicted of murder as an accomplice to felony murder is less culpable due to age and due to a lower level of involvement—and lesser mental state—than would be present in a typical murder case. 6. Abbie VanSickle, If He Didn’t Kill Anyone, Why Is It Murder?, N.Y. TIMES ( June 27, 2018), https://www.nytimes.com/2018/06/27/us/california-felony-murder.html [https://perma.cc/53K2-6AQZ]. 7. Id. 8. Id. 9. Khalifa v. Cash, 594 F. App’x 339 (9th Cir. 2014). First to Printer_Caldwell.docx (Do Not Delete) 4/13/21 10:18 AM 2021] JUVENILE ACCOMPLICES TO FELONY MURDER 907 way to the Ninth Circuit, which upheld the conviction at the time.10 In a dissenting opinion, Judge Harry Pregerson commented on the disproportionality of the sentence, writing that “[e]ven the deputy attorney general in this case acknowledged the harshness of Khalifa’s sentence for a kid who went into a house and filled his pockets with candy.”11 This story is not unusual.12 Juveniles—a term I use throughout this Article to refer to people under the age of eighteen—comprise a high proportion of those who are convicted of felony murder. The exact numbers are difficult to pin down because felony murder is a theory of liability rather than an independent offense,13 but an estimated twenty to twenty-six percent of all juveniles prosecuted for murder are charged under felony murder theories.14 Thus, felony murder laws are a driving force behind the high numbers of young offenders in the United States who have been sentenced to spend the rest of their lives in prison.15 Many young people who have been convicted of felony murder were not the actual killers but were accomplices to the underlying felonies. One survey found that twenty-six percent of all people in the United States serving LWOP for a crime 10. In 2019, an appellate court determined Shawn was not a major participant and did not act with reckless indifference in this felony, rendering him eligible for resentencing and possible release. See In re Khalifa, No. G057175, 2019 WL 4266820, at *9 (Cal. Ct. App. Sept. 10, 2019). 11. Khalifa, 594 F. App’x at 344–45 (Pregerson, J., dissenting). 12. See Miller v. Alabama, 567 U.S. 460 (2012) (discussing Kuntrell Jackson’s case because it was a companion case); Emily C. Keller, Constitutional Sentences for Juveniles Convicted of Felony Murder in the Wake of Roper, Graham & J.D.B., 11 CONN. PUB. INT. L.J. 297, 300–02 (2012) (discussing the felony murder conviction of seventeen-year-old David Young who participated in a robbery where a codefendant shot the victim, but Young had no knowledge that the codefendant would do so, and that of seventeen-year-old Aaron Phillips who was convicted of felony murder for participating in a robbery of an elderly man who later died after two surgeries following a hip fracture incurred during the robbery); Alison Burton, Note, A Commonsense Conclusion: Creating a Juvenile Carve Out to the Massachusetts Felony Murder Rule, 52 HARV. C.R.-C.L. L. REV. 169, 170 (2017) (describing the case of seventeen-year-old Frederick Christian who, along with four others, robbed three individuals and was convicted of felony murder after one of the other participants in the robbery “pulled out a gun and shot the other three individuals