Update on Legislation

Senate Bill 1437, authored by Senator Nancy Skinner and sponsored by Restore Justice, is a first step to getting legislation passed to reform aspects of the felony murder rule. For those who are offered no relief under SB 1437, we acknowledge and understand your concern and disappointment. Below is our attempt to answer questions you may have and to give insight into the complexities and steps needed to change felony murder.

What is the felony murder rule and how is it implemented in California?

California adopted the felony murder rule in 1872 (Penal Code 189): it states that people can be charged with first degree murder when a death - even accidental, unintentional, unforeseen - occurs during commission of certain felonies, including robbery, burglary, kidnapping, and certain sex crimes. One can commit a robbery or a burglary without any intent to harm, let alone kill someone, but if a death occurs, as for example a gun is fired, or a person is killed in a car chase, ALL people that prosecutors can argue participated in the underlying felony can be found guilty of first-degree murder.

In California, the felony murder rule appears in two areas of our Penal Code:

- Penal Code 189 as felony murder simpliciter for which the penalty is a mandatory 25 years to life (1st degree murder)

- Penal Code 190.2, adopted by the voters in 1978, as felony murder special circumstance. This proposition changed sentencing for felony murder by increasing penalties to 15 to life (2nd degree); 25 to life (1st degree); life without parole and death penalty (special circumstances). There are 22 separate circumstances listed under Penal Code 190.2.

How are these two forms of felony murder different? They are very, very similar but in felony murder special circumstance, the prosecution is supposed to have to prove a higher level of participation - that the person either intended to kill, aided a murder with the intent to kill, or acted with reckless disregard for human life and was a major participant in the crime. How a crime is prosecuted varies from county to county which is why the role of the prosecutor is so decisively important. We know that people who were not major participants have still been sentenced to life without parole and the death penalty under felony murder special circumstance. We understand that these convictions occur in a criminal legal system fraught with problems, including prosecutorial misconduct, discrimination (by race, gender, class, ability, etc.), a lack of understanding of the effects of intimate partner violence, and more.

There are three ways to change laws in California:

- through the courts

- through ballot propositions (voted on by the people of California)

- through legislation - either by simple majority (51%) vote, or by 2/3 majority vote (more challenging)

Legislation must go through 3 separate votes in the Senate, 3 separate votes in the Assembly and then the Governor either signs it into law or vetoes it. SB 1437 is a Senate bill so it begins its journey in the Senate, going through 2 committee votes and one floor vote before making its way to the Assembly where it undergoes the same process. SB 1437 will be heard in Senate Public Safety Committee on Tuesday, April 24th. This is the first step in the voting process.

The goal of SB 1437 is to amend the felony murder rule solely for those convicted under Penal Code 189, felony murder simpliciter, who were not the direct perpetrator of the killing or, more simply, the person who participated in the underlying felony but did not intend, or participate, in the murder. SB1437 changes only Penal Code 189, not Penal Code 190.2 felony murder special circumstance. A simple majority vote (51%) of the Senate and Assembly is needed to change Penal Code 189. In this political climate, a simple majority vote is very possible.

There are two ways to change Penal Code 190.2, felony murder special circumstance: by ballot proposition or by a 2/3 majority vote by the Legislature. To change complex and long-standing laws takes a great deal of strategy as well as the strength and determination of a unified people who are willing to stay the course. Senate Bill 1437 is a strong next step in the fight to take down the giant Felony Murder Rule and its role in fueling mass incarceration and the rise of life without parole sentences. As a broad coalition of groups and individuals, we continue to work intensely and committedly toward the next-step solution for felony murder special circumstance.