Illinois change in '~felony murder rule' left some behind

CHICAGO (AP) - Gerald Berry is serving a life sentence for murder, even though he didn't kill anyone.

On Dec. 27, 2001, Berry said he and three friends drove to Country Club Hills, Illinois, in Chicago's south suburbs, to case a house that they planned to burglarize later. Berry, then a certified HVAC technician, was 20-years-old and married with three children. He often hung around with an older friend, Loree Scott Young, 35. Berry said sometimes Young suggested ways for them to make quick money.

After Berry, Young, and the other two men in their crew arrived at the house in Country Club Hills they realized that one of the homeowners was there, so they considered targeting other residences, according to court records. Berry said that Young still encouraged them to go through with the robbery. Young and Trumaine McClure, 18, went inside the house, while Berry waited in the getaway car and kept a lookout with 27-year-old John McGowan, according to court records.

Things quickly went south after another person who lived in the house, Torrey James, returned home. Young demanded money from the man, who drew a gun and shot Young twice. Court records state that McClure returned fire, hitting James once.

James and Young died from their injuries.

'œIt was just shocking,'ť said Berry in an interview with Injustice Watch from Menard Correctional Center. 'œIt was unbelievable because that's not what we thought was going to happen.'ť

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The nonprofit news outlet Injustice Watch provided this article to The Associated Press through a collaboration with Institute for Nonprofit News.

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McClure, who shot the homeowner, pleaded guilty and was sentenced to 20 years. He was released on parole in November 2021. McGowan, the other lookout, was acquitted at trial. But Berry was charged with and convicted of both murders under the so-called felony murder rule. The felony murder rule is a legal doctrine that allows prosecutors to bring murder charges against anyone who participates in committing certain felonies, such as robbery, burglary, or sexual assault, if a death happens during the crime. The doctrine applies even if the defendant wasn't directly responsible for the killing. Most U.S. states have felony murder laws.

Steven Drizin, co-director of the Center on Wrongful Convictions at Northwestern University, has represented several people accused of felony murder.

'œThe felony murder rule has a lot of mischief attached to it,'ť Drizin said. 'œIt imposes punishments that do not fit the crime for a lot of accomplices.'ť

Last January, Illinois legislators changed the state's felony murder statute as part of the landmark criminal justice reform bill known as the SAFE-T Act, short for the Illinois Safety, Accountability, Fairness, and Equity-Today Act. The law removed the possibility that prosecutors charge defendants with murder in cases when a third party who was not involved in the felony, such as a homeowner or a police officer, is responsible for the killing.

Advocates say the reform didn't go far enough.

If the new law had been in place in 2001, prosecutors couldn't have charged Berry for Young's murder, but he could have still faced charges for the death of James, the homeowner. Advocates want lawmakers to go further, so someone such as Berry, who didn't anticipate that violence might happen and didn't participate in the violence, could not be charged with murder.

'œIt's still mind-blowing that I ended up getting a mandatory life sentence,'ť Berry said. 'œI'm not angry, but I know it's wrong. I'm disappointed in the system.'ť

The SAFE-T Act also did not apply the felony murder reform retroactively. At least dozens of people are serving time in Illinois prisons on murder charges that likely wouldn't have been filed if the crime happened today, according to an Injustice Watch analysis.

The state doesn't track how many people have been charged under the felony murder doctrine because court data systems across Illinois don't specify the circumstances behind a murder charge. So Injustice Watch created a database to better understand how many people were left behind by the new reforms. (Scroll to the end of this article to read our methodology and learn more about how we made our database)

We found at least 198 people currently serving time in the Illinois Department of Corrections who were charged with felony murder, though that number is almost certainly an undercount. Our analysis also omits people who were originally charged with felony murder but pleaded guilty to lesser charges, such as manslaughter.

At least 38 of those people were charged with murder in cases in which third parties - not their co-defendants in the original felony - were responsible for the killings. Of the 38 felony murder cases that Injustice Watch identified involving a third party, a police officer was the shooter in more than half. Drizin argues that the felony murder rule 'œoften provides cover for police officers who use deadly force when it is not justified and enables these officers to avoid being disciplined for violating their own guidelines.'ť

If the felony murder reform had been made retroactive, many of the people charged for murders committed by third parties might have been given a chance at resentencing.

Jobi Cates, executive director and founder of the criminal justice reform group Restore Justice, which has lobbied for further changes to felony murder, said she would like to see 'œa wholesale reform of the statute'ť ensuring that it applies to old cases.

'œThe people who are going to get relief from this legislation have not been convicted yet - they're fictional people, they're hypothetical people,'ť Cates said. 'œBut when you go back and you look at the cases that are there, now you're talking about actual people.'ť

A disproportionate impact on young people and women

Injustice Watch's data on felony murder cases, though limited, mirrors what other research has shown: Felony murder laws disproportionately impact young people of color and women.

Black men 25 years old and younger made up about 40% of those charged with felony murder, according to our analysis.

James Garbarino, a psychology professor at Loyola University of Chicago who studies child development and youth violence, said people age 25 and younger are particularly vulnerable to laws such as felony murder that punish people for being accomplices to crimes that play out in violent ways that they may not have foreseen.

Various research studies suggest that the brains of teenagers and young adults are not fully developed, making them more susceptible to peer pressure and unable to understand or anticipate the potential consequences of their actions.

Alexis Mansfield, senior advisor at the Women's Justice Institute, a nonprofit organization focused on reducing the harm and incarceration of women, said women are also particularly vulnerable to being pressured to participate in crimes, especially survivors of domestic violence. About one-quarter of the people we identified as serving time for felony murder were women, compared with 5% of women incarcerated on murder charges in Illinois overall.

'œI really think that so much of that leads back to domestic violence and histories of trauma, which make the ability to say no much more difficult,'ť Mansfield said.

It's unclear what percentage of the women in our data are survivors of domestic violence or how many were coerced by an abuser into committing the underlying crime. But a 2019 study by the Illinois Criminal Justice Information Authority found that practically all the women in Illinois prisons had experienced domestic violence or abuse. In Illinois, compulsion and coercion are not legal defenses for first-degree murder, Mansfield said.

Late last year, the Women's Justice Institute hosted a virtual event with 22 survivors of gender-based violence inside Logan Correctional Center, Illinois' largest women's prison. The women shared poems, monologues, and performances about their experiences. Three of the performers sat down together for a live panel and spoke about the impact that gender-based violence had on their lives.

'œThe mind of someone who is surviving abuse is very different than someone who is not experienced in that,'ť said Erika Ray, 40, during the panel. 'œA lot of times, people that are making laws like the felony murder rule or accountability, people that are sentencing women that are survivors, they haven't walked in those shoes, so it's a little difficult for them to empathize with people who survive abuse and then are incarcerated.'ť

During the panel, Ray said felony murder laws harm survivors and should be changed to only hold people accountable for their actions and not those of others who may commit a severe offense, such as murder.

Court records show that Ray was sentenced to 42 years in prison for the 2006 armed robbery and murder of the assistant manager of a restaurant that she used to work at. Ray said at trial that she only drove her co-defendants to the crime scene, and that, while they didn't force her to drive them, she didn't know that they had planned to rob and kill the assistant manager, who had fired her earlier that day, according to court records.

She argued in an appeal that the judge who sentenced her overlooked mitigating factors, such as her age, lack of criminal history, and experiences with physical and sexual abuse when he ordered her to serve more than four decades behind bars.

'~Legislating is about the art of the possible'

Other states have gone further than Illinois to limit their felony murder statutes.

Last year, Colorado enacted a law that eliminated third-party felony murder charges and also reduced felony murder from first-degree murder to second-degree murder. That change decreased the mandatory sentence from life without the possibility of parole to a term of between 16 and 48 years in prison.

In 2018, California legislators changed the state's murder statute to focus on a defendant's intent to kill. That provision eliminated felony murder liability for co-defendants in the underlying felony who did not actively participate in the killing or act with 'œreckless indifference to human life.'ť The legislation also allowed people who were still in prison on felony murder convictions that happened before the law was changed to seek resentencing under the new statute.

Last year, California state lawmakers expanded the reform's reach to people who were charged with felony murder but pleaded guilty to lesser crimes, such as manslaughter.

California State Sen. Josh Becker, who introduced the bill, said in an interview with Injustice Watch his colleagues aimed to balance between punishing people for participating in serious crimes and hitting defendants with sentences that are unreasonably long given their role in the offense.

'œWe're going to show that there's consequences for people who commit serious offenses, but at the same time, we want to be smart about it and make sure we're not locking people up for much longer than it's helpful for society,'ť Becker said.

The California Assembly Appropriations Committee found that the California Department of Corrections and Rehabilitation could save at least $56 million annually in incarceration-related costs under the new law.

In 2019, Illinois State Rep. Justin Slaughter (D-Chicago) introduced a bill that would have gone almost as far as California's bill. The bill proposed applying felony murder only to people who commited a felony with another person and 'œknew that the other participant would engage in conduct that would result in death or great bodily harm.'ť

That bill died in committee, but it became the basis for changes to the felony murder rule included in the SAFE-T Act.

But by the time the law passed last January, the felony murder section had been pared down to focus only on third-party cases. Advocates said the changes happened as part of late-night negotiations with opponents of the large criminal justice reform package.

Illinois State Sen. Robert Peters (D-Chicago), one of the co-sponsors of the SAFE-T Act, acknowledged that the law left people previously charged with felony murder behind. He said it is difficult to make reform retroactive because of 'œfear mongering'ť from law enforcement and other special interest groups.

John Rekowski, the former chief public defender in Madison County, Illinois, who helped push for the SAFE-T Act in the legislature, said supporters of the bill were aware that they had to make concessions so opponents of the bill would not have ammunition to stop it.

'œLegislating is about the art of the possible,'ť Rekowski said.

'~I just want to come home'

Peters said there are no current plans to make the felony murder changes retroactive or to broaden the reform to include more people.

If the law had been made retroactive, then Tevin Louis might have been given a chance to be resentenced for his 2012 murder conviction. Instead, he's hoping that the governor grants him freedom after eventually deciding on the clemency petition that Louis filed in 2019

'œIf y'all changed the rule and still got me sitting here and don't want to give me an opportunity or at least take off some of these years, you're contradicting everything,'ť said Louis, referring to state lawmakers.

On July 7, 2012, Louis and his best friend, Marquise Sampson, both 19 years old, robbed a gyros shop on the South Side of Chicago. Chicago police officer Antonio Dicarlo ran after Sampson and shot him multiple times as the assailants fled the crime scene, according to news reports and Louis' account. News outlets reported that the officer claimed Sampson pointed a gun at him.

Louis was charged with armed robbery and his friend's murder under the felony murder rule and sentenced to 32 years in prison.

Louis said he thinks that it's unjust for him to be held responsible for the actions of the cop who killed Sampson.

'œI feel like a sacrificial lamb,'ť Louis said. 'œI feel like my head was chopped off, and I was served on a platter.'ť

He's already making plans for what he'll do with his freedom, even without the guarantee that his sentence will be reduced or commuted. During his time in prison, Louis has become passionate about fitness and nutrition and wants to open a gym to help young people stay off the streets.

Berry, who is now 40, also has young people whom he wants to support. After spending half his life in prison under a felony murder conviction, he's now a grandfather of four.

Berry said a reprieve from his life sentence would help him one day realize his dream of working with community organizations and grassroots campaigns to push for criminal justice reform and help deter the youth, including young people in his family, from getting in trouble with the law.

'œI just want to come home and live a viable life and help my grandchildren, so they don't go down the same path I did,'ť Berry said.

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This article was produced in partnership with Report for America. Emily Hoerner, Emanuella Evans, and Olivia Louthen contributed research. ___

Methodology

Injustice Watch created our dataset by looking at Illinois Department of Corrections data for people whose top charge was listed as 'œmurder/other forcible felony.'ť We then reviewed court documents and news clippings to confirm the defendant's role in the underlying felony and subsequent murder and whether there was a third party involved that caused the death. We received suggestions for additional cases to review from Restore Justice Illinois and the Illinois Prison Project and confirmed them by reviewing court documents and news clippings.