Bill to Reform California’s Felony Murder Special Circumstance Law Moves Forward

A bill authored by Senator Dave Cortese (D-San Jose) and co-authored by Senator Nancy Skinner (D-Berkeley), Senator Scott Wiener (D- San Francisco), and Senator Sydney Kamlager (D-Los Angeles) to reform California’s “felony murder special circumstance” law is moving forward.

SB 300, The Sentencing Reform Act of 2021, has passed the Senate Public Safety Committee and the Senate Committee on Appropriations, and will now be voted on by the entire California State Senate.

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enators Cortese, Skinner, Wiener, and Kamlager held a news conference this morning to urge their colleagues in the California Senate to move the bill forward.

“Current California law mandates a sentence of death or life without the possibility of parole for anyone convicted of ‘murder with special circumstances,’ even if the person did not kill anyone, nor intend for anyone to die. Under current law, if a person dies during the course of certain felonies, even if the death is accidental, those who were involved in the felony are subject to these severe punishments regardless of their role in the person’s death or their intent,” says Senator Cortese. (Watch Senator Cortese’s full testimony at this link.)

The Senator added, “Additionally, for all crimes in this sentencing scheme, if any special circumstance is found true, the judge has no choice but to sentence the person to death or life without the possibility of parole – current law forbids the judge from considering whether these punishments are fair in any given case. The mandated minimum is to die behind prison walls, without any means of earning parole.”

SB 300  will reverse the injustices of current LWOP sentencing law by restoring discretion to judges in these cases. SB 300 will also disallow individuals to be sentenced to death by execution or LWOP when they did not directly perpetrate a death, did not aid or abet a killing, and had no intent to kill. Individuals who were sentenced this way would be eligible for resentencing. This would offer recourse to hundreds – potentially more – of Californians currently awaiting execution or condemned to die in prison for someone else’s actions.

Senator Nancy Skinner’s (D-Berkeley) SB 1437, that became law in 2018, also tackled California’s unjust felony murder rule, by reserving murder charges and punishment to those that actually commit murder in most cases. SB 1437 also allowed those convicted the opportunity to be resentenced to a lower sentence. SB 1437 did not, however, address felony murder cases under the special circumstances law. Governor Gavin Newsom has placed a moratorium on the death penalty in California for as long as he is serving as Governor.

“You should not be convicted of murder if you did not murder”, says Senator Nancy Skinner. “About 72% of women serving life under the felony murder rule did not commit murder.”

At the News Conference this morning, Senator Wiener said that those that did not directly perpetrate a death, commit violence, or had no intent to kill, “should not be going to prison for life or potentially be subject to capital punishment.” He added that this sentencing structure, “makes no sense, it’s unjust, it’s destructive, and it’s time to end it.”

“Why is it that there is only a certain segment of our population that gets arrested, convicted, and gets gang enhancements and special circumstances laws thrown at them to keep them in prison for their lifetime?” asked Senator Kamlager during this morning’s conference. “The felony murder special circumstance law represents some of the most discriminatory tendencies of our criminal legal system. It is overwhelmingly used against people of color.”

“This law is incredibly inhumane,” she added.

“There are so many women in prison serving with life without parole, sentenced for someone else’s violence,” says Tammy Cooper Garvin, a survivor of domestic violence and human trafficking, who was charged as an accomplice in a felony murder case for a crime that her abuser committed. “I had no intent to hurt anybody or kill anybody. I went into the building and realized he killed a man. Terrified and completely traumatized, I ran from the scene with him. Me and my abuser were charged with murder.”

“Facing trial, my abuser threatened to kill me and my father if we testified against him. I believed him because I had seen someone die at his hands. Even though my abuser admitted to my father that he committed the murder, the police botched the handling of the evidence,” she said. In fear for their lives, Tammy and her father were unable to testify. Her abuser was acquitted and went free, while Tammy was sentenced with LWOP.

“My son, Tony, was charged and convicted of Felony Murder Special Circumstances. He did not kill anyone; he did not have any intent to kill anyone – the plan was just to go and pick up a laptop computer. He and the other two are now serving Life Without the Possibility of Parole,” said Joanne Scheer, Founder of Felony Murder Elimination Project , in a recent interview with The Appeal. “I want to be very clear when I say that Life Without Parole is a death sentence… There’s no chance to go before the parole board – the only way you’re getting out of prison is in a casket, and that’s it.”

Tony’s story is powerful, but unfortunately not exceptional. On average, 130 people a year in California are sentenced to die in prison for a crime they did not commit. Brian Mason was 18 when he was sentenced to mandatory life in prison for a murder he did not commit. His poignant story was laid out eloquently in a video created by the coalition in support of SB 300. Watch Brian’s story at this link.

Senator Cortese detailed the racial disparity in sentencing outcomes; 80% of people serving LWOP are people of color, and nearly 70% are Black or Latinx[1].

“When you look at the outcomes of Felony Murder special circumstances you can see almost immediately that it is a racist law – not so much because it was put together with explicit or expressed racist terminology, but because after it’s been enacted into law, you look at the results of it – and it has de facto or actual racist implications. That’s what happened here,” Senator Cortese told The Appeal. “That’s what should make our effort with SB 300 very compelling to my colleagues in the legislature.”

Nineteen is the average age of a person at the time of the offense for which a life without parole sentence is imposed due to a special circumstance finding. There are currently over 5234 people in California serving life without parole sentences, 2303 of whom were 25 years or younger at the time of the offense.[2] It was a first offense for over 3700 of these individuals[3]. Using data from the state department of corrections, the Felony Murder Elimination Project estimates that taxpayers pay $112,600 person per year to incarcerate a person if that person is young and healthy and over $150,000 per year for an older person[4]. The high expense of LWOP sentencing is particularly misguided considering that 88 percent of people serving LWOP have been determined to be the lowest possible score on the California Department of Corrections risk assessment scale.[5]

Susan Bustamante was released from prison in 2018 after serving 31 years of a life without parole sentence. Susan was convicted for someone else’s actions in the context of surviving domestic violence. She was commuted by Governor Brown in 2017 and granted parole in 2018.

“Having the extreme sentence of LWOP due to our abusers, sex trafficking, being forced to commit their crimes because of their abusive partners was horrific,” Bustamante said at today’s conference when speaking about the population of women convicted of felony murder serving life in prison without the possibility of parole. Susan became an original member of “Convicted Women Against Abuse” in prison.

“We have to change the laws that are unjust and serve only to bring future trauma to families and communities,” said Latonya Stewart. Steward has two sons, one was lost to gun violence, the other is serving a Life Without the Possibility of Parole sentence. Stewart and Aaron, her incarcerated son, speak together on the need for restorative justice, for safety in our communities and for the redemption capable in all of us.

Sponsors of SB 300 include Silicon Valley De-Bug, the Ella Baker Center for Human Rights, the California Coalition for Women Prisoners, Californians United for a Responsible Budget (CURB), The Drop LWOP Coalition, Families United to End LWOP (FUEL), and the Felony Murder Elimination Project.

For more information, contact Tara Sreekrishnan, Office of Senator Dave Cortese, at 408 480 7833 or [email protected].

Senator Dave Cortese represents State Senate District 15 which encompasses most of Santa Clara County, including the cities of Campbell, Los Gatos, Cupertino, Saratoga, Monte Sereno, and much of San Jose, stretching from the Santa Cruz Mountains to the west and Mountain Hamilton Range to the east. 

 Note – this was a press release