In the United States you can go to jail for homicide and murder without killing someone. It happens all the time. It happens in Ohio. It happens to kids, and it happens intentionally. Police charge criminals with murder knowing they didn’t kill anyone. Prosecutors seek convictions knowing the defendant did not kill anyone, and judges sentence those convicted to life in prison, and sometimes to be killed themselves through the death penalty with full knowledge that the convicted didn’t take a life.

How is this possible? It is because of a poorly understood legal principle known as the Felony Murder Rule. The original concept of the rule was to punish every criminal involved in a felony when a life is lost just same as the one that committed the murder. Consider a bank robbery where one of the robbers shoot and kill a guard during the robbery. Under the Felony Murder Rule, each criminal involved in the robbery could be charged with murder, even though only one of the robbers pulled the trigger. On its face, the rule makes a certain amount of sense. If you choose to engage in a dangerous criminal activity, then you assume the full responsibility if a death occurs during your crime, no matter what your intent might have been.

The rule began in early 1700s England, and it was adopted into the legal systems of most nations that sprang from the British Empire, including Canada, Australia and the United States. However, by the mid-twentieth century, serious questions began to arise around seemingly unjust consequences of the rule. The UK abolished the rule in 1957. Every other Commonwealth Nation has since either entirely abolished the rule, or limited its applicability to extremely narrow circumstances. Every other nation, that is, except the United States. As professor Guyora Binder puts it, the Felony Murder Rule is almost entirely now “a distinctly American legal innovation.”

The consequences of the rule can be quite counterintuitive. Individuals can be charged with murder in cases that, from a bird’s eye view, make no sense at all. In Tulsa, Oklahoma, two men attempted to steal some copper wire from a radio tower, and both accidentally electrocuted themselves. One died, and the other was charged with the murder of his criminal accomplice while recovering from his injuries in the hospital. The deceased’s girlfriend was also charged with murder when it was found that she had driven the men to the radio tower even though she was unaware of the criminal plan.

In May 2022, three soon-to-be graduates got high in their school’s parking lot before their graduation ceremony. Unbeknownst to them, their drugs were laced with fentanyl, and all three overdosed. Two of the teenagers died, and the surviving girl was charged with the murder of her friends.

The rule is also often applied when the police kill someone. In December 2018, Julius Ervin Tate Jr was killed by officers in Columbus, Ohio when he pulled a gun on an undercover cop during a botched sting operation. His 16-year-old girlfriend, Masonique Saunders, was charged with his murder despite the shooting being committed by the police themselves.

Indeed, a brief internet search will point you toward hundreds of absurd applications of the rule where individuals culpable of relatively minor criminal acts like stealing packages, vandalizing public property, or abusing illegal drugs end up losing decades or their entire life due to the application of this uniquely American rule. Some states have attempted to reform their laws, but most continue to zealously enforce the rule. Certainly, there are some instances where enforcement of the rule is due to the just consequence of an inherently violent crime. However, it is indisputable that the United States has the highest incarceration rate in the world, and this rule is part of the reason we lock so many of our citizens behind bars for so much of their lives.

John Judkins is an attorney in Greenfield.