MEGAN THOMPSON: On the morning of February 23, 2015 five teenagers drove to the end of a quiet street in Millbrook, Alabama, about ten miles north of Montgomery.  The teens- who were armed- broke into an empty house, stealing electronics and money, then went up the block to another empty home. A suspicious neighbor called 911.  

POLICE OFFICER: Well I think we got ‘em blocked off if you’re still there.

MEGAN THOMPSON: Two Millbrook police officers soon arrived. One went in the front, the other along the side. Gunfire broke out. As the second officer ran towards the backyard, one of the teens, 16-year-old A’donte Washington, came through a back gate carrying a gun.

The officer hit Washington three times. He died at the scene. Andre Washington is A’donte’s father.

ANDRE WASHINGTON: A good, good son. A good child.

MEGAN THOMPSON: He remembers his son as a quiet kid, who dreamed of playing football for the University of Florida.

ANDRE WASHINGTON: Full of energy, when he was--real young, just full of energy. After high school, he want to-- wanted to go to like the-- Florida Gators. 

As the shock of his son’s death sunk in, Washington learned something else shocking. Though none had pulled the trigger, the four other teens at the house were all being charged not just with burglary and theft, but with murder. The murder of A’donte Washington.

ANDRE WASHINGTON: It's-- it's-- it's crazy.

MEGAN THOMPSON: Do you think the other boys are responsible for A'Donte's death?         

ANDRE WASHINGTON: No. No. 

MEGAN THOMPSON: In Alabama, a murder conviction can bring a sentence of up to 99 years. Three of the teens took plea deals. The fourth- Lakeith Smith- was offered 25 years. But he rejected it, and took his case to court. CJ Robinson is the chief deputy district attorney for Alabama’s 19th circuit.  

MEGAN THOMPSON: He didn't pull the trigger. He didn't kill anybody. So how can he possibly be charged with murder?

C.J. ROBINSON: I think that's a great question. And, you know, to answer that question, you really have to look at Alabama law. When you look at how that law is on the books and how it’s applied in Alabama, it goes to the foreseeable factor, alright. 

MEGAN THOMPSON: In Alabama, the law says, all suspects can be charged with murder if a death occurs during a felony that’s “clearly dangerous to human life.”  Another legal standard used, is that the death was foreseeable.

CJ ROBINSON: "Do I think when I break in this house an officer is gonna come running in and we're gonna get in a gunfight?" Is that foreseeable? Yes. 

MEGAN THOMPSON: Robinson also based his decision on the fact that the group was charged in other crimes in Montgomery in the 36 hours before Washington was killed. One defendant pled guilty to murder.  Charges of kidnapping and robbery are still pending against Lakeith Smith.

CJ ROBINSON: When you're engaging in a series of the most dangerous behavior that's out there, the question for us was: Is it foreseeable that someone could die based off these five young men's conduct? Our answer was, "Absolutely." 

MEGAN THOMPSON: Alabama’s law is based on something called “the felony murder rule” - a centuries-old legal concept. Steven Drizin is a clinical professor at Northwestern University’s Pritzker School of Law.

STEVEN DRIZIN: So in its purest form the felony murder rule means that if you commit a felony, and during the course of that felony somebody dies, you can be convicted of first degree murder, the most serious crime on our statute books, even if you didn’t intend to kill the person who died, even if the death was accidental.

MEGAN THOMPSON: Forty-two states have some form of a felony murder rule, and it’s interpreted differently in each. In some cases, it’s been used to charge accomplices with murder. So for instance, if two people rob a store and one of them kills the clerk… both of them are charged with murder. The idea is, everyone involved in a felony should be held accountable for the consequences.  

But some states interpret felony murder more broadly. In rare cases, if the clerk kills one of the robbers, the other robber is charged with murder.  

Take the case of Justin Doyle in Illinois. In 2008, Doyle, 15 and unarmed, set out to rob a home with three other boys. They thought it was empty. A person staying there shot and killed one teen, Travis Castle.  The other three were charged with Castle’s murder. Faced with a possible 60-year sentence, Doyle - who got a tattoo to memorialize Castle- pled guilty to home invasion and involuntary manslaughter, and was likely to get out of prison in 15 years. 

Steven Drizin got Doyle’s sentence commuted by the Illinois governor.  

STEVE DRIZIN: Most people are offended by the notion that teenagers who wanna commit a burglary can be charged with felony murder or first degree murder. The punishment is just much too harsh for the criminal culpability.

 MEGAN THOMPSON: I wanna ask you about why this is an appropriate tool to use. If you are out to commit a crime, whatever it may be, you should pay for whatever consequences arise.

STEVEN DRIZIN: The answer to that argument is-- is you punish the burglar with the higher range of sentences- for the burglary. And-- you don't-- punish someone for crimes they neither intended or committed.

MEGAN THOMPSON: Back in Alabama, even though Lakeith Smith was 15 at the time of the shooting, he was tried in adult court. Brontina Smith is Lakeith’s mother.  

MEGAN THOMPSON: Your son was offered a deal.

BRONTINA SMITH: He was.

MEGAN THOMPSON: Plea deal. He did not take it.

BRONTINA SMITH: Did not.

MEGAN THOMPSON: Why not?

BRONTINA SMITH: That-- that-- that-- that was my son's thing. He was like, "I didn't kill anybody. Like, why-- why am I admitting to a murder that I knew I-- I-- I didn't commit?" The cop killed him.            

MEGAN THOMPSON: That cop was cleared of wrongdoing. Lakeith Smith’s trial took place in 2018 in rural Elmore county, north of Montgomery. An all-white jury found him guilty of burglary, theft and murder. 

JUDGE SIBLEY REYNOLDS: You just don’t get it, do you?

MEGAN THOMPSON: The judge- annoyed at what he claimed was Smith’s disrespectful demeanor- sentenced him to 65 years in prison.

MEGAN THOMPSON:  What did you think when you heard 65 years?

BRONTINA SMITH: It was malice. It's like if you don't do what they want you to do, I'm gonna show you. 

 MEGAN THOMPSON: He did commit a crime.

 BRONTINA SMITH: He did. And he should have got the proper time for the crime that he committed. The burglary and the stolen property. 65 years on a young guy, 15, who didn't kill no one? Didn't kill no one, and didn't shoot at no one. Alabama. Yep.

MEGAN THOMPSON: What do you say to critics of this? They say, “we shouldn't be charging-- bringing this charge in situations like that." What do you say?

C.J. ROBINSON: I understand people who may not understand the law or may want the law to be different. You know, if the Supreme Court says, "It's gotta be this way," then I will gladly apply the law that way.  

MEGAN THOMPSON: Back in Illinois an investigation in 2016 by the Chicago Reader found 10 cases over the previous five years of killings by law enforcement that led to felony murder charges. One case was that of Tevin Louis.

FEMI SOYODE: I’ll pull in over here, so you can see. 

MEGAN THOMPSON: Femi Soyode was Tevin Louis’s attorney. In 2012 when Louis was 19, he and Marquise Sampson, his close friend since childhood, robbed a sandwich shop on Chicago’s south side. 

FEMI SOYODE: Mr Sampson came out of King Gyro, and then they ran across the street. And coincidentally, an officer just happened to see him run across the street holding his waistband.  And the officer just - boom - started chasing him all throughout these neighborhoods right here. Mr Louis went the opposite way. This way. Southbound.  

MEGAN THOMPSON: The officer shot and killed Sampson. He stated later that Sampson had a gun. 

TEVIN LOUIS: I was down the street. I heard the gunshots, I was down the street. 

MEGAN THOMPSON: Even though Louis was down the street, he was charged with murdering his friend. He spoke to us from prison.

TEVIN LOUIS: It was like, it was shocking, it was crushing like, especially, the factor playin' in that, he as a close friend of mine, he was my brother.

MEGAN THOMPSON: Soyode says he sees felony murder used often in cases when it’s one of the felons who’s committed a killing. 

 FEMI SOYODE: You know, my thoughts on felony murder is the idea behind it I'm actually not opposed to. 

MEGAN THOMPSON: But in a case like Louis’s, Soyode feels the punishment doesn’t fit the crime. He routinely sees first-time offenders charged with robbery, like Louis, take plea deals and serve only a few years in prison.   

Louis refused a deal that would have required him to plead guilty to his best friend’s murder. A jury found him guilty of both robbery and murder. He received a 20 year sentence that he must serve in its entirety.

FEMI SOYODE: The fact that Mr. Louis is doing 20 years is mind boggling. And for that reason, I know there's a- there's a issue with felony murder, because that just shouldn't be.

MEGAN THOMPSON: The officer, meanwhile, was cleared of wrongdoing. In recent years, Chicago has had some of the highest numbers of shootings by police officers of any large city. Femi Soyode says a felony murder charge like Tevin Louis’s adds to his community’s distrust of the police.

FEMI SOYODE: It just further reiterates what people already feel about law enforcement. And not only does it reinforce it. It takes it to a new level. 

MEGAN THOMPSON: It’s difficult to know how often prosecutors use felony murder in the U.S. But one report states that nearly 20% of murder convictions are based on felony murder.

STEVEN DRIZIN: I think the felony murder rule-- causes people to plead guilty to crimes that they didn't commit-- to avoid extremely harsh sentences. I think it's a big part of mass incarceration.

MEGAN THOMPSON: In response to the 2016 investigation by the Chicago Reader, the office of Anita Alvarez, Cook County State’s Attorney at the time, told the paper: "The murder charges are well founded under established law." 

The current State’s Attorney, Kimberly Foxx, came to office in late 2016. Her office said in a statement that when deciding to charge felony murder, it conducts an additional review that considers “...the offender’s role” and “conduct during the commission of the underlying felony, whether he was armed or discharged a weapon, and if he has a previous criminal history.”  Foxx has not used felony murder to prosecute in cases of shootings by the police.  

But the rule is still on the books in Illinois, as it is in Alabama where Lakeith Smith is now serving his 65-year sentence.

BRONTINA SMITH: I don't agree with-- that particular law. It just doesn't make sense.

MEGAN THOMPSON: Brontina Smith says her son plans to appeal his murder conviction.