The current attempt to amend the felony murder rule in California has been a multiyear effort. This work, like all our work, was borne out of our personal experiences with clients, incarcerated individuals and family members with loved ones serving life sentences under this antiquated doctrine. This rule represented to us an injustice that deserved a remedy.
In 2016, we began working together on this project. Kate, then working full-time at the University of San Francisco School of Law Criminal and Juvenile Justice Clinic and the Racial Justice Clinic, engaged her students in researching the felony murder rule in all jurisdictions in the United States. It was important to understand how other states had managed to abolish or limit the application of the felony murder rule.
In Sacramento, Alex began discussing the bill with legislators and staff at the Capitol. Politically, it proved to be difficult to even begin a conversation about a concept that contained the words “felony murder” together. The vast majority of people, legislators included, who did not attend law school or know someone personally affected, did not understand what the rule was, nor appreciate its unfairness.
Recognizing that we could not begin this process of reform with immediate legislation, we drafted a legislative resolution — SCR 48 (Senate Concurrent Resolution) — to educate and raise awareness of the problem of two areas in California homicide law, the felony murder rule and the natural and probable consequences doctrine. Under both these rules, an accomplice is liable for the acts of the perpetrator of a killing, regardless of whether the accomplice shared the intent to harm, let alone kill, another person.
Next stop, a bipartisan Senate bill
SCR 48 passed both houses of the legislature in 2017. Through it, we were able to get recognition and enough interest in this issue to draft a bill to be introduced in 2018, SB 1437. Democratic Sen. Nancy Skinner, a passionate advocate for criminal justice reform, is the author of the bill as is Republican Sen. Joel Anderson. Both were also the joint authors of SCR 48. The origins of this bill are truly bipartisan and, as the Senate floor vote reflected, Democrats and Republicans alike can recognize the unfairness of this law.
It is important to note that SB 1437 does not abolish the felony murder rule. It simply amends it, so that only those who actually killed, who aided the killing with the intent to kill, or who acted with reckless disregard to human life during the course of the felony may be convicted of murder. Under this bill, prosecutors would no longer be able to substitute the intent to commit a crime for the intent to commit murder.
What is novel about SB 1437 is that it provides a means for retroactive relief for those in prison who could no longer be convicted of murder should SB 1437 pass. Providing retroactive relief was consistent with our belief that if a law is so unjust that it deserves to be reformed, those who are currently serving a sentence under such an unjust law must not be left behind.
One of the biggest hurdles we encountered in this process is that the number of people serving prison sentences who were the accomplices in the underlying felony (but not the murder) is unknown. Also unknown is the race, gender and age of those to whom the felony murder rule has been applied.
Survey necessary to collect data
When a person is sentenced under this doctrine, they receive a first-degree murder conviction. The abstract of judgment provided by the sentencing court to the California Department of Corrections and Rehabilitation (CDCR) does not contain details on the theory of conviction. Further, district attorneys’ offices are not required to keep such statistics. Prior legislation trying to require such data collection by the district attorneys failed.
Thus, we did not have a simple way to see by race, age and gender who has borne the burden of the broad application of accomplice liability under the felony murder rule. In order to get this information, we sought it directly from those affected — those in California prisons. Re:store Justice, along with other grassroots organizations, created a survey that was sent to people inside California prisons by the Youth Justice Coalition, the Anti-Recidivism Coalition and the California Coalition for Women Prisoners. This survey asked questions to gather data on the number of people who were sentenced under this rule but who were not the actual perpetrators of the homicide.
We received more than a thousand replies from prisons all over the state. We asked for case numbers and counties of conviction and cross-referenced answers given with Court of Appeals opinions and, where available, Superior Court dockets, in order to ensure that the information we received was accurate.
The results were unsurprising: The felony murder rule disproportionately impacts youth of color and women. The surveys indicated that approximately 72 percent of women imprisoned pursuant to the felony murder rule were accomplices, not the actual perpetrators of the homicide. Nevertheless, because of the acts of others, they are serving life sentences.
We believe that our partner in the legislation, Colby Lenz with the California Coalition for Women Prisoners, best summarized the use of the felony murder rule on women: “The majority of incarcerated women we work with who were sentenced under the felony murder rule were accomplices navigating intimate partner violence and were criminalized for survival acts.”
Moreover, the majority of those incarcerated as accomplices pursuant to this rule were under 25 at the time of the crime. Most young adults, and many adults for that matter, are unlikely to anticipate that a robbery might result in a death. Neurological research concludes that the adolescent brain is not fully formed until early adulthood, and that young people do not have adult levels of judgment, impulse control or the ability to foresee the consequences of their actions. Through their early 20s, young people are continuing to develop into the adults they will become; the vast majority of youth outgrow the type of behavior that leads to crime.
As we knew that the argument in favor of the felony murder has been that it had a deterrent effect, we wanted to assess the veracity of this argument. Academic research, subsequently cited by both the Senate and Assembly Public Safety Analysis, does not support this argument. Neither did our surveys. We asked survey participants if they had heard of the felony murder rule before being charged with first-degree murder. A mere 0.5 percent of our participants had heard about the felony murder rule prior to their arrest. Obviously, one cannot be deterred from violating a rule one does not know exists.
We also needed to get numbers for legislators who wanted to know approximately how many people could be eligible for resentencing. To this end, we made Public Records Act Requests of the CDCR, asking for the number of people serving 25 years to life sentences for first-degree murder, i.e. not those serving life without the possibility of parole, nor those condemned to die, as SB 1437 does not impact those sentences. CDCR informed us that there were presently 8,856 people serving a sentence of 25 years to life for murder.
As noted above, no records are maintained by CDCR or by district attorneys regarding whether someone was convicted under the felony murder doctrine. However, according to the research cited by both Senate and Assembly Public Safety analyses, 20 percent of murders nationwide are prosecuted under a felony murder theory. Although that is national, the analyses concluded there is no reason to believe that California as a whole would differ significantly.
Accordingly, of the 8,856 incarcerated for first-degree murder, approximately 1,771 people (20 percent) could be incarcerated under a felony murder theory. Of those 1,771 people, at least half would be ineligible for relief, as SB 1437 only provides relief to those who were not the actual killer. Further, there could be many cases in which there was no co-defendant, or cases in which all major participants in the felony acted with reckless indifference to human life.
Thus, we estimate that the numbers of those eligible for relief are approximately 800 statewide. Clearly, providing resentencing hearings to this number of people is not only feasible, but will spare the state untold millions in continued incarceration costs for people who did not commit murder.
SB 1437 will now move forward to Assembly Appropriations, where the cost savings and expenditures of the bill will be assessed. If it is voted out of Appropriations, it will then go to the Assembly floor for a vote. Our opponents, all law enforcement, have said that while they recognize the need for reform, SB 1437, limited as it is, goes too far. After arguments regarding the lack of a deterrent effect were disproven by the neutral analysis done by the legislature, opponents have now begun to assert that homicides committed for the benefit of a gang may be more difficult to prove.
They have used language similar to that of President Donald Trump in his recent references to immigration and a hypothetical looming public safety danger of gangs such as MS 13. In doing so, they are trying to scare people into removing their support. However, that gang homicides will change in any way is simply not accurate. A member of a gang who aids and abets another person to commit a homicide for the benefit of the gang is still liable for murder and the gang enhancements apply, resulting in sentences of 50 years to life or more. Fortunately, we believe that California legislators, like the California public, are no longer susceptible to such scare tactics.
Our goal has always been simple: We want to ensure that there is no murder liability for accomplices who had no intent to commit a murder and did nothing to aid in the killing. It is a matter of doing what the late California Supreme Court Justice Stanley Mosk said the felony murder rule failed to do: connect criminal liability with moral culpability. Such a connection is the bedrock principle of any evolved criminal justice system. California must catch up to the rest of the world and enact this needed reform.