Illinois' 'felony murder rule' change still leaves some who didn't kill anyone in prison for life

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 South suburban Country Club Hills to case a house that they had planned to burglarize. Berry, then a certified HVAC technician, was 20 and married with three children. He often hung around with an older friend, Loree Scott Young, 35, who 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 homes, according to court records. Berry said 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 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. McClure returned fire, hitting James.

James and Young died.

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

McClure pleaded guilty and was sentenced to 20 years. He was released on parole last November. McGowan was acquitted at trial.

But Berry was convicted of both murders under the felony murder rule - a legal doctrine that allows prosecutors to bring murder charges against anyone who participates in certain felonies, such as robbery, if a death happens during commission of 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.

"The felony murder rule has a lot of mischief attached to it," Drizin said. "It imposes punishments that do not fit the crime for a lot of accomplices."

Last January, Illinois legislators changed the state's felony murder statute as part of the criminal justice reform bill known as the SAFE-T 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 the law changed so someone like Berry, who didn't anticipate or participate in the violence, could not be charged with murder.

"It's still mind-blowing that I ended up getting a mandatory life sentence," Berry said.

The SAFE-T Act also did not apply the felony murder reform retroactively. 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. So Injustice Watch created a database to better understand how many people were left behind by the new reforms.

It found at least 198 people currently serving time in the Illinois Department of Corrections who were charged with felony murder. The analysis omits people who originally were charged with felony murder but pleaded guilty to lesser charges.

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 those 38, a police officer was the shooter in more than half.

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 group Restore Justice, said she would like to see "a wholesale reform of the statute" ensuring that it applies to old cases.

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

Disproportionate impact

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

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

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

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

"I 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," Mansfield said.

It's unclear what percentage of the women represented in the 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.

"The mind of someone who is surviving abuse is very different than someone who is not experienced in that," said Erika Ray, 40, during the panel's talk. "A 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."

Ray was sentenced to 42 years in prison for the 2006 armed robbery and murder of the assistant manager of a restaurant where she used to work. Ray said at trial that she only drove her co-defendants to the crime scene, and that 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.

'Art of the possible'

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

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

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 "reckless indifference to human life." The legislation also allowed people who were still in prison on felony murder convictions that happened before the law was changed to seek resentencing.

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

In 2019, Illinois state Rep. Justin Slaughter, a Chicago Democrat, introduced a bill that would have gone almost as far as California's law. The legislation proposed applying felony murder only to people who committed a felony with another person and "knew that the other participant would engage in conduct that would result in death or great bodily harm." That measure died in committee, but it became the basis for changes to the felony murder rule in the SAFE-T Act.

Yet, 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 reform package.

State Sen. Robert Peters, a Chicago Democrat and one of the co-sponsors, acknowledged the law left people previously charged with felony murder behind. He said it is difficult to make reform retroactive.

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

"Legislating is about the art of the possible," he 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, Louis is hopeful the governor eventually grants his clemency petition filed in 2019.

On July 7, 2012, Louis and his best friend, Marquise Sampson, both 19, 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 two fled, according to news reports and Louis' account. News reports say Dicarlo 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.

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

Berry, now 40 and a grandfather of four, has spent half his life in prison under a felony murder conviction. He said a reprieve from his life sentence would help him one day realize his dream of working with community groups and grass-roots campaigns to push for criminal justice reform and help deter youths from getting in trouble with the law.

"I 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," Berry said.

• The nonprofit news outlet Injustice Watch provided this article to The Associated Press through a collaboration with Institute for Nonprofit News. This article was produced in partnership with Report for America. Emily Hoerner, Emanuella Evans, and Olivia Louthen contributed research.