Sweeping criminal justice reform package would curtail felony murder prosecutions in Illinois

Update (Jan. 13, 2:45 p.m.): The Illinois General Assembly passed the sweeping criminal justice reform bill, HB3653, that included a provision narrowing the state’s murder statute. The bill has been sent to Gov. J.B. Pritzker’s desk for approval.

Illinois lawmakers are considering changing a controversial rule that allows individuals to be charged with murder when they commit certain felonies that lead to someone’s death.

Under current Illinois law, defendants who commit forcible felonies, including robbery, burglary, criminal sexual assault, and arson can be charged with first-degree murder when someone is killed in the course of those crimes—even if the defendant did not directly cause the death.

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Under the so-called felony murder rule, prosecutors charged, convicted, and sentenced Marshan Allen to life in prison for a murder that occurred when he was 15. Though Allen stole the van used to get to and from the crime scene, it was his older co-defendants who shot and killed two men at an apartment on Chicago’s South Side in 1992.

Marshan Allen

Marshan Allen at age 15. (Photo courtesy of Allen)

Advocates for criminal justice reform have long advocated narrowing the law, which they say is excessively broad and punitive.

In Illinois, the felony murder rule serves as “a major engine of mass incarceration in the state,” said Steven Drizin, co-director of the Center on Wrongful Convictions and clinical professor of law at Northwestern Pritzker School of Law.

“Because the punishment gap between a murder sentence and a sentence of a lesser felony is so extreme, you keep people locked up for much longer periods of time than they need to be,” said Drizin.

Changes to the definition of “felony murder” are part of the sweeping criminal justice reform package being pushed by the Illinois Legislative Black Caucus during the General Assembly’s lame-duck session, which ends Wednesday.

If passed, the bill will ban prosecutors from filing first-degree murder charges in cases where defendants did not commit the act or know it would occur, or where the death was caused by a third party. These amendments will bring Illinois’ felony murder statute, one of the broadest in the nation, in line with those in dozens of other states. The changes are not retroactive.

Juvenile justice impact

Because juveniles often commit crimes in groups, Illinois’ current felony-murder statute has had an outsized effect on young people, according to Drizin.

In one high-profile 2019 case, prosecutors in Lake County, Illinois, charged five teens with the murder of their 14-year-old friend, who was shot and killed by a homeowner as the youth allegedly attempted a burglary. The controversial charges were eventually dropped against the teens, known as the “Lake County Five.”

Under the current statute, individuals fleeing arrest have also been charged with the murder of bystanders and accomplices killed by police during the chase. In a 2016 investigation, the Chicago Reader identified 10 cases between 2011 and 2016 where killings by police and sheriffs led to felony murder charges against civilians.

State Sen. Robert Peters (D-Chicago) first proposed changes to the felony murder statute in a 2019 bill referred to the Assignments committee last spring.

Other measures included in the Black Caucus’ criminal justice omnibus bill include eliminating cash bail, limiting collective bargaining rights of police unions, and requiring all officers to wear body cameras by 2025.

Illinois’ aggressive sentencing laws, including for felony murder, don’t make communities safer and ruin lives, said Peters.

“It creates more destabilization to the community, destabilization for that family and of course, destabilizes that person’s life by locking them up for something that they did not actually do,” he said.

After decades of tough-on-crime policies, Peters said he knows that reform will still be an uphill climb.

The Illinois State’s Attorney’s association opposes the criminal justice reform package, but some prosecutors support changes to the felony murder statute.

In a 2020 survey of candidates for state’s attorney and General Assembly, conducted by the criminal justice advocacy group Restore Justice, the majority of respondents supported narrowing the statute.

In the survey, Cumberland County State’s Attorney Bryan Robbins  stated that he was opposed to the reform. But during a phone interview this week, Robbins told Injustice Watch that he does not have a strong position on the issue.

“It’s kind of like any tool that a prosecutor has, it can be abused, it can be used for overreach,” said Robbins. “But then, if you constrain it, it can also constrain your ability to prosecute a crime.”

Cook County State’s Attorney Kimberly Foxx came out this week in support of the reform package as a whole.

“I believe that the spirit of [the bill] is meant to build trust in police departments across Illinois while addressing long-needed problems to alter unfair criminal justice policies rooted in systemic racism that result in our jails and prisons being disproportionately occupied by Black and Brown individuals,” said Foxx in a statement.

‘It’s really heavy-handed’

After initially being sentenced to life in prison, Allen was re-sentenced and released in 2016, after the U.S. Supreme Court ruled that automatic lifetime prison terms without the opportunity for parole were unconstitutional for juveniles.

Allen now works as the national policy director for Represent Justice and backs felony murder reforms.

“It’s really heavy-handed. I don’t think it’s necessary to charge people with murder for instances where they didn’t kill anyone,” said Allen. “Of all of the charges that we have or the prosecutor has in their toolbox, they want to use the most severe punishment to try to hold someone accountable for a crime that they didn’t intend.”

After serving almost 25 years in prison, Allen continues to feel the effects of his murder conviction. When employers run a background check, his murder conviction pops up. Even something as simple as booking an Airbnb has been difficult, he said.

“I’m labeled a killer, a murderer, when I’ve never committed any acts of violence or done evil things.”

Correction: A previous version of this story incorrectly stated that Marshan Allen was the national policy director for Restore Justice. He is actually the national policy director for Represent Justice. We regret the error.

This article was produced in partnership with Report for America and The Chicago Reporter.