Presently on California Governor Jerry Brown's desk is a bill to revamp California's felony murder rule. There are just two problems. First, the bill is poorly written, retroactive, and would put murderers on the street. Second, the bill is unconstitutional because it effectively amends a statute enacted by initiative, which can only be done by putting it back on the ballot and letting the people vote on it.
Let's take the second point first. That is not merely my opinion or the prosecutors' opinion. The Legislative Counsel told the legislators that, and they passed it without a ballot-ratification provision anyway. The letter is
here.
On the substance, some pruning of the felony murder rule may very well be in order. In recent years, though, both the Legislature and the proponents of initiatives in California have gone at the criminal law with chain saws instead of pruning shears. This bill is no exception. The most obnoxious of the provisions is the retroactive reopening of old cases.
Reopening old cases is an exceptionally dangerous business, and it often results in further sentence reductions for criminals who got off too easy the first time. Old cases are often the result of plea bargains. Those that did go to trial will lack specific findings that were not required at the time on facts that might have been easy to prove then and impossible now.
Forty-two of California's district attorneys have signed a
letter asking Gov. Brown to veto the bills. The signers include DAs from some of the state's most politically liberal jurisdictions, including Alameda and Marin Counties. Darrell Smith has
this story in the Sacramento Bee on this bill and another dangerous one regarding under-16 murderers.
I do hope the governor vetoes it. If not, the fight to have it thrown out for violating the California Constitution will begin immediately. Perhaps next year the proponents will be reasonable and work out a judicious pruning of the felony murder rule.