The Koch brothers are standing behind a controversial bill which aims to reform federal criminal laws. Koch Industries General Counsel Mark Holden recently wrote in an email, “We favor comprehensive criminal justice reform, which includes ensuring that there are intent and knowledge standards in any and all criminal laws.” Holden continues, “This is a fundamental requirement of a just criminal justice system…While sentencing reform and corrections reform are vitally important, mens rea reform deals with people who never should have been in prison to begin with because they lacked the intent and knowledge to commit the crime at issue.”

In keeping with Holden’s comments, the Koch brothers have joined conservative and libertarian groups, including the Heritage Foundation and the Manhattan Institute, to advocate for a provision in the new criminal justice bill making it much more difficult for prosecutors to pursue white-collar crime by adding mens rea requirements to certain federal criminal laws. This would place a much higher burden on the government by requiring it to prove that that the defendant intended to commit the crime as opposed to simply proving negligence, willfulness, or recklessness.

Indeed, the Koch brothers became interested in criminal justice reform in part due to a previous criminal prosecution of their own employees and enterprises for breaking environmental regulations. The Kochs have maintained that they and their employees had not known the firm was violating the law, and as a result, that they lacked intent.

However, Department of Justice spokesman Peter Carr criticized the legislation, arguing that it would make it more difficult to prosecute regulatory and white-collar crimes and added that it “would create confusion and needless litigation, and significantly weaken, often unintentionally, countless federal statutes” including “those that play an important role in protecting the public welfare … protecting consumers from unsafe food and medicine.”

But, could this reform affect other segments of criminal law? Specifically, what would the absence of a mens rea requirement mean in the context of felony-murder.

In most murder cases, the prosecutor has to prove that a person who caused the death of another intended to kill that person or to cause serious bodily harm. However, nearly all  states have a felony murder rule which allows a person to be convicted of murder if someone dies during the commission of a felony, regardless of intent or whether it is an accident. In almost half of these states, felony murder is a capital offense.  

The rule allows for one or all participants in the felony to be held equally culpable regardless of whether or not they caused the harm. Intent does not have to be proven. In some cases, simply being loosely connected to the underlying crime allows the state to charge an individual with murder.

Below is a list of the examples of how states have used the felony-murder rule:

  • In Florida, Ryan Holle was convicted of first-degree murder and is currently serving a life sentence for letting his friends borrow his car, which they used to commit a burglary. The burglary turned violent, and one of the men killed someone inside the house. Holle was not present at the scene of the crime but because he lent them the car they used to commit these crimes, he was also charged with first-degree murder.
  • Another Florida man, Mervin “Greg” Bettis, was charged with murder after a Target security guard trying to detain him collapsed and died from heart failure. The prosecutor’s office used the grand theft charge to elevate to felony murder.
  • In Illinois, three teenagers broke into a home while two friends waited outside. The homeowner shot and killed one of the boys, and two of the teenage boys were charged with first-degree murder. Both boys took a deal, in which they plead guilty to involuntary manslaughter and burglary, and were both sentenced to 30 years in prison.
  • In California, three teenagers were convicted of murder when one of them, unbeknownst to the others, pulled out a knife and stabbed a drug dealer in a dispute. The boy who did the stabbing admitted he did it in an effort to get another boy off his younger brother. All three were sentenced to life in prison without the possibility of parole (LWOP).
  • In North Carolina, Shawn Bonnett was originally sentenced to death for his role as lookout in a robbery gone wrong, which resulted in the death of a store clerk. Bonnett was one of four people tried for the crime, but he was not the shooter, and some of his co-defendants who had greater culpability received lesser sentences for their roles. Bonnet has since been resentenced to life in prison without the possibility of parole for his role in the case.
  • Typically, when drunk driving results in an unintentional death, the driver is charged with manslaughter. A Texas woman, however, is currently facing murder charges for the accidental death of a motorist in another car while she was driving drunk. In Texas, for those who have been convicted of at least two prior misdemeanor DWIs, their subsequent arrests are considered a third-degree felony. Therefore, causing a death while committing a felony DWI qualifies as felony murder. Since the woman had two prior DWI convictions, she is facing life in prison as opposed to a maximum of 20 years.
  • Just this month, a Virginia man was charged with murder in connection with the fatal heroin overdose of his wife. He was initially charged with two felony counts of child endangerment. Two young children were in the home at the time, but were not physically harmed. Prosecutors are using the underlying felony to elevate the accidental death to murder.
  • In North Carolina, a young man was charged with murder for selling heroin to a friend. The young man had even warned the friend that someone else had recently overdosed from that batch of heroin.

As these felony murder cases show, many defendants are given severe sentences when they had no intent to commit the crime. A specific intent requirement would likely result in more proportionate sentences. The Koch brothers’ fight for mens rea requirements could ultimately provide support for putting an end to the felony-murder rule.

Note: Thanks to Ben Hukill, a 1L at the University of North Carolina School of Law, for his research. Also, Lauren Krisai has an excellent post on mens rea and felony murder over at Reason.