By Eric Gelber
What problem/issue would the bill address?
In addition to some 700 prisoners on death row, there are currently over 5,100 people in California sentenced to die in prison, at an average annual per person cost of $81,000. These are individuals who have received sentences of life without the possibility of parole (LWOP). More than 3,200 of individuals receiving LWOP sentences were 25 years old or younger at the time of the offense. The average age of a person at the time of the offense for which LWOP is imposed is 19. Sixty eight percent of the LWOP population is Black and LatinX.
LWOP is the mandatory minimum sentence if a person is convicted of first degree murder, notwithstanding any mitigating factors or fairness.
Existing law provides that any death occurring during the commission, attempted commission, or immediate flight after committing or attempting to commit specified felonies (including, robbery, kidnapping, rape, burglary, arson, and others) is first degree murder even if the person sentenced was not the actual killer nor had any intent to kill. This is referred to as the “felony murder rule.”
SB 300 (Cortese), introduced in early February (see Vanguard article), would address the felony murder special circumstances law by allowing sentences other than the death penalty or LWOP for a person who did not kill anyone, nor intend for a person to die, during the commission of a crime.
What would the bill do?
SB 300 would:
- Repeal provisions of law that require punishment by death or LWOP for persons convicted of murder in the first degree if they did not personally kill or intend to kill, thereby restoring to judges the discretion to impose a sentence of 25-years-to-life with the possibility of parole if the judge believes such a sentence is fair and just.
- Provide that a person convicted of first degree murder based on felony murder special circumstances and sentenced to death or LWOP may petition the court to have the special circumstances findings vacated, to have their sentence recalled, and to be re-sentenced if the person was not the actual killer and did not act with intent to kill.
- At the hearing to determine if the petitioner is entitled to relief, require that the prosecution prove beyond a reasonable doubt that the petitioner is ineligible for resentencing pursuant to the provisions of the bill.
The common law felony murder rule dates back as far as the twelfth century. The modern iterations date to early English common law; although, England abolished the rule in 1957.
The United States is the only country that still applies the felony murder rule. Forty six states have some form of a felony murder rule. Four states—Hawaii, Kentucky, Michigan, and Ohio—have completely abolished the rule.
The rule has been criticized by the California Supreme Court. In a 1983 case (People v. Dillon), for example, the court called felony murder a “barbaric” rule of “dubious origin” from a “bygone age,” that “erodes the relation between criminal liability and moral culpability.” However, the Court concluded, only the Legislature could change it.
Proposition 7, approved by the voters in 1978, prescribed the penalty for first degree murder as death, LWOP, or 25 years to life. In 1990, however, the voters approved Proposition 115 providing that a person found guilty of first degree murder who is not the actual killer but acted with reckless indifference to human life, or was a major participant in specified felonies, shall be punished by death or LWOP.
In 2018, the Legislature enacted SB 1437 (Skinner), which reformed the felony murder rule by limiting it to circumstances where (1) the person was the actual killer; (2) the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first degree murder, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.
SB 1437 did not, however, make any changes to the sentencing for an individual found guilty of first degree murder under the special circumstances felony murder law, thus continuing to mandate only LWOP or the death penalty for people charged as accomplices who did not kill anyone or intend for anyone to die.
According to the author of SB 300, the bill “will address the injustice of the felony murder special circumstance law by allowing for a sentence other than the death penalty or life in prison without parole for a person who did not kill anyone, nor intend for anyone to die.
“SB 300 will restore judicial discretion to dismiss one or more special circumstances in the interest of justice … when the judge believes a sentence of life with the possibility of parole is just and appropriate. This is particularly important for cases where the district attorney or Secretary of Department of Corrections and Rehabilitation recommend recall and resentencing …. SB 300 will provide judges the discretion to dismiss a special circumstance and impose a sentence of 25 years to life in these resentencing proceedings.
“SB 300 also provides an avenue for currently incarcerated people sentenced to death or LWOP under the felony murder special circumstance law to petition the court for resentencing, offering recourse to Californians who have been unjustly sentenced.”
As noted in the Senate Public Safety Committee analysis of SB 300, most recent studies conclude that the felony murder rule does not have a deterrent effect on the commission of dangerous felonies or deaths during the commission of a felony. Opponents of the rule argue that criminals are unaware that the felony murder rule even exists, and that it is impossible to deter criminals from committing unintentional and unforeseeable acts.
In support of SB 300, the Felony Murder Elimination Project argues that “[l]ike other enhancements, special circumstances law allows for unchecked prosecutorial discretion that has resulted in disturbing racial disparities in death penalty and LWOP sentences. Under current law, if a person dies during the course of certain felonies, even if the death is accidental, anyone involved in the felony is subject to these severe punishments even though the death was not caused by their individual action or intent. …
“This bill takes a modest step towards repealing our unjust special circumstances scheme by allowing judges to impose a parole eligible sentence, should they deem that a death penalty or LWOP sentence is disproportionate. …
“Decades of research have failed to show any public safety benefit from LWOP or the death penalty. On the contrary, severe punishments like these have driven the mass incarceration crisis that has destroyed lives, families, and entire communities, particularly Black and Brown communities that have long been deprived of supportive investments and programs while being targeted by policing, racism, and oppression. Reducing our reliance on punishment and imprisonment, including for people serving extreme sentences, will benefit our communities by returning people to their families and freeing up funds that can be invested in addressing true community safety and well-being.”
SB 300 is opposed by the California District Attorneys Association, the California Police Chiefs Association, and the Peace Officers’ Research Association of California (PORAC). According to PORAC, “Prop 115 was passed because the voters recognized that regardless of whether an individual was the actual person who committed the murder, the fact that they had participated in the act, with the intent to kill or knowing full well their actions could cause the death of someone, is just as egregious as the act of murder itself.” This argument misrepresents the bill because if a person had the intent to kill, they would not be eligible for resentencing pursuant to the bill.
PORAC further argues that “[u]nder this legislation, if two individuals shoot at a law enforcement officer and that officer dies, but it is proven that only one bullet killed the officer, then the person whose shot did not hit the officer will not be subject to the same penalties of the actual shooter.” PORAC again misrepresents the bill because both individuals in this scenario had the intent to kill.
Opponents testifying at the April 6th committee hearing on the bill argued that it would undermine the intent of voters in passing Proposition 115. In response, the committee Chair noted that voters do not necessarily understand the details of complex initiatives, and laws are often modified because they have unforeseen and unintended consequences.
SB 300 was passed by the Senate Public Safety Committee on April 6th with a vote of 4-0 with one abstention and will next be heard in the Senate Appropriations Committee.
Because it would modify provisions of law enacted by Proposition 115, SB 300 will require a 2/3 vote of each House of the Legislature to pass and be sent to the Governor for his signature.
Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.
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