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 votereflected, 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.