Some of the Charges Stemming From George Floyd's Death Should Trouble Criminal Justice Reformers

The criminal complaints against Derek Chauvin and three other officers rely on expansive liability principles that reformers usually oppose.

Activists who were outraged by George Floyd's death welcomed the criminal charges against Derek Chauvin and three other former Minneapolis police officers who were involved in that horrifying incident. But some of those charges raise issues that would trouble many of the same criminal justice reformers if the context were different.

The second-degree manslaughter charge against Chauvin, the officer who kneeled on Floyd's neck for nearly nine minutes, seems to easily fits the facts of the case. It alleges that Chauvin caused Floyd's death "by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another." That offense carries a maximum penalty of 10 years in prison.

The second-degree murder charge against Chauvin that Minnesota Attorney General Keith Ellison filed on June 3, by contrast, relies on the "felony murder" doctrine, a legal principle that criminal justice reformers have long criticized. That count, which carries a maximum penalty of 40 years in prison, alleges that Chauvin caused Floyd's death without intending to do so "while committing or attempting to commit a felony offense"—namely, third-degree assault.

Critics of felony murder laws argue that they unjustly punish defendants who were peripherally involved in crimes that resulted in someone's death, often in cases where they neither intended nor anticipated that outcome. Someone who participates in a burglary as a driver or a lookout, for example, could be convicted of murder if the burglar unexpectedly encounters the property owner and kills him during the ensuing struggle. A defendant's involvement can be even more limited: In Florida, Lauren Krisai notes, a man received a life sentence because he lent his car to a friend, who used it to commit a home burglary in which the owner's 18-year-old daughter was killed.

That case is a far cry from Chauvin's, since he is charged with committing the assault that killed Floyd. But the felony murder charge against him means prosecutors do not have to prove the homicide was intentional, which would be required if he had been charged under the first subdivision of Minnesota's second-degree murder statute.

That maneuver, notes Ted Sampsell-Jones, a professor at Mitchell Hamline School of Law in St. Paul, relies not only on the "highly controversial" felony murder doctrine but "a particularly weird form of it." In a recent article at The Dispatch, Sampsell-Jones says "nearly all" jurisdictions that allow felony murder charges follow the "independent felony" rule, which says "the underlying felony—known as the predicate felony—must be separate from the act causing death." That "generally means that assault and battery cannot serve as the predicate felonies for felony murder."

Under the independent felony rule, an arsonist who sets a fire that unintentionally kills someone could be charged with felony murder, while a barroom brawler who hits someone and accidentally kills him could not. But Minnesota is "one of just a couple jurisdictions that has rejected the independent felony rule, and it therefore allows assault to serve as a predicate," Sampsell-Jones writes. The upshot is that Chauvin can be convicted of second-degree murder, which otherwise requires proof of intent, even if he killed Floyd without meaning to do so. The elements are very similar to the allegations underlying the manslaughter charge, which carries a substantially lighter penalty, except that prosecutors have to prove Chauvin intended to commit an assault.

Chauvin also faces a third-degree murder charge, which alleges that he caused Floyd's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." That charge, Harvard law professor Laurence Tribe and Minnesota criminal defense attorney Albert Turner Goins have argued, is not appropriate in this case, because Minnesota courts have restricted it to "reckless or wanton acts" committed "without special regard to their effect on any particular person."

Sampsell-Jones expects Chauvin's lawyers to raise that argument, but he thinks the case law is not as clear as Tribe and Goins imply. "There is definitely some [Minnesota] case law saying that," he writes in an email, but there is also "case law to the contrary." He notes that former Minneapolis police officer Mohamed Noor, who last year was sentenced to more than 12 years in prison for killing Justine Damond after she called 911 to report a possible assault in the alley behind her house, was convicted of third-degree murder, "even though he pointed a gun at someone's chest and pulled the trigger."

In terms of the sentence Chauvin is apt to receive, the distinction between second-degree and third-degree murder may not matter. Although the maximum statutory penalty is higher for second-degree murder (40 vs. 25 years), the presumptive penalty for felony (unintentional) murder under Minnesota's sentencing guidelines is the same: 150 months, which is the sentence that Noor received.

The aiding and abetting charges against the three other officers who participated in Floyd's arrest—J.A. Kueng, Thomas Lane, and Tou Thao—likewise are not as straightforward as they might seem. Kueng and Lane both helped restrain Floyd, although Lane repeatedly suggested that he should be rolled from his stomach to his side, presumably to reduce the risk of suffocation. Chauvin rejected those suggestions. Thao, meanwhile, not only failed to intervence but physically prevented bystanders from doing so.

Does that mean Kueng, Lane, and Thao "intentionally aided" Chauvin in the commission of second-degree manslaughter or second-degree murder, as the criminal complaints against them allege? Those charges, Sampsell-Jones notes in another Dispatch article, are "legally valid under Minnesota law" but "rely on some fringe doctrines of accomplice liability." Those doctrines, "which have long been criticized by progressive reformers, create expansive strict liability for minor participants in group crimes."

Accomplices are "criminally liable" for the offense committed by the person they assisted, meaning that Kueng, Lane, and Thao theoretically could receive the same penalty as Chauvin, even though they had much less culpability in Floyd's death. "Giving accomplices the same sentence is in fact the presumptive norm," Sampsell-Jones says in an email, "though minimal role in the offense can be the basis for a downward departure."

While these three officers' inaction during Chauvin's assault on Floyd was reprehensible, it is not enough to convict them as accomplices. "In general the failure to act is not a crime," Sampsell-Jones writes. "As the Minnesota Supreme Court has stated, mere presence at the scene of a crime and passive acquiescence are insufficient."

Assuming that the cases against the three alleged accomplices go to trial, prosecutors would have to show that they took actions that facilitated Chauvin's crimes and that they intended to do so. Two principles of accomplice liability would make the prosecution's task easier.

Under "the natural and probable consequences doctrine," the officers could be convicted if they aided Chauvin's assault and Floyd's death was a reasonably foreseeable consequence. And under the felony murder doctrine, they could be convicted if they intentionally aided the assault, even if they did not intend or expect to cause Floyd's death. Under Minnesota law, Sampsell-Jones says, "an intent to commit or aid a misdemeanor assault is sufficient" to make a defendant guilty of murder. He adds that "Minnesota may be the only American jurisdiction where a simple misdemeanor assault can get bootstrapped all the way up to murder."

Sampsell-Jones worries that reformers, in their understandable zeal to see justice for Floyd, are compromising principles of justice they otherwise are keen to defend. Some have even argued that Chauvin should have been charged with first-degree murder, which requires premeditation as well as intent.

"An irony of this case is that the expansive liability doctrines, which progressive lawyers and academics have sought to reform for years, are now necessary to a high-profile prosecution that is demanded by progressive activists and pursued by a progressive attorney general," Sampsell-Jones writes. "But in a system devoted to the rule of law, the desire for retribution must be checked. Just because we want to convict these guys doesn't mean it's a good idea to abandon existing limitations on first-degree murder or accomplice liability—any more than it would be a good idea to abandon the beyond a reasonable doubt standard."

Criminal justice reform "should mean abolishing fringy doctrines of expansive liability—such as Minnesota's assault-felony-murder doctrine," Sampsell-Jones says. "The cause of criminal justice reform is more important than the result in this case. Locking a few more humans in cages will not create the systematic reform we need. Justice for George should mean much more than just sending these four cops to prison."