The lucky legal accident that led to Derek Chauvin’s conviction
The guilty verdict against Derek Chauvin should be celebrated, not just because it marks a milestone in our slow progress toward racial justice but also because it gave a murderer the label he deserved. But legally speaking, this success was a lucky accident. In almost every jurisdiction in the United States, Chauvin could not even have been tried for the most serious crime of which he was convicted.
That’s because almost every American jurisdiction accepts a principle of criminal law called the merger rule. The merger rule limits felony murder cases: cases in which prosecutors aim to convict defendants of murder not by showing that they intended to kill — or even knew their conduct created a risk of death — but instead by showing that death occurred in the course of a felony they were committing. Thanks to felony murder laws, someone who burns down a building and kills an occupant will be guilty of murder even if the arsonist thought the building was empty.
Felony murder laws allow prosecutors to skip the step of showing that the defendant was in a specifically homicidal state of mind when he harmed someone else. But the merger rule sets an important limit on felony murder prosecutions, barring prosecutors from skipping this step when the felony that caused the death was an assault. After all, the reasoning goes, if prosecutors could win murder convictions without showing a guilty mind every time a death was caused by an assault, they would hardly ever need to show a guilty mind. Many homicides — during robberies, bar fights or sometimes even due to careless driving — start with assaults. If we want to require prosecutors to prove a guilty mind most of the time, then we cannot allow assaults to form the basis of felony murder prosecutions. This is the point of the merger rule.
Some states bar any charge of felony murder; those that permit it usually limit it with the merger rule. But not Minnesota. Under Minnesota law, an assault that kills is a murder, no matter the mental state of the perpetrator. Without this peculiarity of Minnesota law, the most serious offense of which Chauvin was convicted could never have been brought to a jury. Chauvin faces up to 40 years in prison only because in Minnesota, unlike almost anywhere else in the nation, an assault that kills is a murder even if the perpetrator was unaware that his assault risked the victim’s death.
Prosecutors know that juries feel far more comfortable convicting for murder when they are convinced of the defendant’s bad state of mind. But a felony murder charge allows creative characterization of that bad state of mind. In Chauvin’s case, the prosecution plausibly argued that when Chauvin killed George Floyd, he was arrogantly puffed up with the sense of his own dominance and superior judgment. The crowd told him the simple truth, screaming that he was killing another human being. But Chauvin closed his ears, confident that he knew best.
But horrible as this state of mind is, it is not quite the state of mind that any American jurisdiction recognizes in ordinary murders — those that are not felony murders. Prosecutors required to prove a guilty mind would have taken a big risk painting Chauvin as objectionably arrogant. That’s because obliviousness to the lethal risks of one’s conduct, even if that obliviousness stems from arrogance, is a defense against murder. True, one jury might listen to the story and conclude that Chauvin was aware of the risks but, due to arrogance, did not care. But another jury might hear the same story and reach the opposite conclusion: that due to arrogance, Chauvin was oblivious to risks that a less arrogant person would have recognized.
The actual jury in Chauvin’s case turns out to have been the first kind: It convicted him not only of murder but also of a lesser degree of homicide that required a finding that Chauvin was aware of the risks of his conduct. But had prosecutors lacked the felony murder charge to fall back on, they could not have risked the possibility that at least one juror would view Chauvin’s mental state differently. It was because they were aiming to convict of felony murder that prosecutors were able to tell the story of Chauvin’s arrogance without risking the loss of their case. They didn’t need to prove that Chauvin was in a murderous mental state, so they could argue that he was in a different, but equally bad, one.
Like ordinary citizens, police who kill do so in a wide variety of mental states. Some intend to kill. Others believe they must kill to prevent immediate harms or future crimes. Still others kill when they are deeply frightened, their perceptions of the risks they face shaped by that fear. All of these psychological states can be magnified and inflected by racism and other forms of bias. Criminal law everywhere is designed to address these psychological differences; that’s why the law categorizes these homicides differently. But it is an accident of Minnesota criminal law that it was equipped to properly classify Chauvin’s killing of Floyd as murder.
The Chauvin verdict ought to prompt reform of homicide law in the United States. We need laws that allow us to convict people like Chauvin of murder. But we should find better approaches than Minnesota’s. Felony murder is a dangerously powerful prosecutorial tool that has spawned shocking excesses of punishment, especially against defendants of color. Several states, including California, have abolished the charge for just this reason. States that keep it on the books have good reason to limit its reach, as the merger rule does.
So, we should not try to duplicate what happened in the Chauvin trial in future prosecutions of police killings. Rather, we should rewrite our laws to specify that arrogant abuses of authority, and the mental states they involve, constitute the guilty mind required for murder, even if that arrogance blinds defendants to the risks of their conduct. Expanding our murder categories in this way would help us reach just verdicts like that in the Chauvin case without recourse to laws that overreach against civilian defendants.
Gideon Yaffe is Wesley Newcomb Hohfeld Professor of Jurisprudence, professor of philosophy and professor of psychology at Yale University.