Jacque Wilson was in his car heading home from a softball game on a late August evening when his phone rang. It was his friend Kate Chatfield: She told him California Senate Bill 1437 had finally passed and was headed to Gov. Jerry Brown’s desk. “And I’m driving, and I just break down crying,” Wilson told The Intercept.

The new law would dramatically redefine use of the state’s archaic felony murder rule in criminal prosecutions. It would also mean that Wilson’s younger brother Neko might finally be coming home after more than nine years behind bars awaiting trial for a grisly crime that he insists he played no part in.

Neko Wilson was one of six people charged with the robbery-murder of Gary and Sandra DeBartolo, who had an illicit marijuana grow operation inside their Fresno County home. The state alleged that Neko and the others planned to steal the dope and whatever cash was in the house. But that plot apparently went sideways. Minutes after two of the accused conspirators, Leroy Johnson and Jose Reyes, entered the DeBartolos’ home on the morning of July 22, 2009, the couple was killed, their throats slashed. After a high-speed chase, police caught up with the getaway car.

Neko was not at the DeBartolos’ house that day, and he wasn’t in the getaway car. Still, he was arrested and charged with the couple’s murder. Prosecutors announced that they would seek the death penalty for Neko under the felony murder rule.

A throwback to English common law, the felony murder rule works like this: Say two people decide to burgle a house, and in the process, one of them shoots and kills the homeowner; even if the shooting was completely spontaneous, and even if one of the burglars didn’t know the other had a gun, both could be held equally liable for the murder. Neko Wilson might not have been there when the DeBartolos died, but prosecutors alleged he was the one who hatched the plan for the robbery, which meant he was responsible for what happened even if he didn’t kill anyone.

Most states have some version of the felony murder rule on the books, and in a number of states, it can be used to seek the death penalty. In Texas, five men have been executed for murders that they did not commit (a sixth is slated for execution in December). Although a handful of states have curtailed or eliminated this brand of accomplice liability, California’s law had remained active — much to the chagrin of people like Jacque Wilson, who is also an attorney with the San Francisco Public Defender’s Office.

Jacque had spent eight years working to free his brother when he formally took over as his lead defense attorney in 2017. Last spring, as he was preparing for Neko’s case to finally go to trial, he heard about a bill pending before the California legislature that would bar prosecutors across the state from charging someone with a murder they had no direct connection to. “The first time I read it, it was as if the words were jumping off the pages,” Jacque said. He called Chatfield, who is policy director of the advocacy group Re:store Justice, which was sponsoring SB 1437. “I said, ‘Hey, whatever I have to do … I will do to try to get this bill passed.’”

It wasn’t a particularly easy lift, but after a dramatic final vote in the state Assembly, the bill did pass, and in September, it was signed by Brown. It is now poised to serve as model legislation for reform-minded lawmakers across the country.

In this photo taken Friday, Aug. 31, 2018, state Sen. Nancy Skinner, D-Berkeley, speaks on a bill before the Senate in Sacramento, Calif. Lawmakers approved Skinner's bill, SB1437, that limits the states "felony murder" rule that holds accomplices to the same standard as if they had personally killed someone. (AP Photo/Rich Pedroncelli)

California state Sen. Nancy Skinner, D-Berkeley, speaks on SB 1437 before the Senate in Sacramento on Aug. 31, 2018.

Photo: Rich Pedroncelli/AP

A Check on the Power of Prosecutors

State Sen. Nancy Skinner’s district is in Alameda County, just east of San Francisco. She said she had no idea that felony murder was something that existed until she started hearing about it from constituents and advocates.

She remembers meeting with the family of an incarcerated woman who was prosecuted under the rule. The woman had been on a third date with a guy “who, in hindsight, she never should’ve dated,” Skinner said. The guy was a gang member. The woman was in the car with him and several other members of the gang when there was a drive-by shooting. “She was not aware that would happen,” Skinner recalled, “and yet she was charged with felony murder.”

What Skinner learned convinced her to co-author SB 1437. Put simply, she said, felony murder is not fair because it divorces intent from action.

Moreover, like other aspects of the criminal justice system, the law in practice is both racist and sexist. The felony murder rule has disproportionately impacted blacks in the state — roughly 40 percent of those convicted under the rule are black — and even more so, young people of color. Nationally, 26 percent of juveniles serving life without parole were convicted of felony murder. (That the felony murder rule would sweep up so many juveniles isn’t entirely surprising, says Chatfield, “because most young people act in groups.”) Meanwhile, 72 percent of women serving a life sentence in California did not kill anyone. According to the California Coalition for Women Prisoners, a majority of the women sentenced under the felony murder rule were accomplices “navigating intimate partner violence, criminalized for survival acts.”

California’s new law bars prosecutors from using a person’s intent to commit one crime — for example, a robbery — as a way to hold them responsible for a murder committed during the course of that robbery, unless they can prove that the person played some direct role in the killing.

Also significant is that the law is retroactive, meaning it affects the cases of those already in prison, and applies equally to individuals who accepted plea deals — two provisions that are often a tough sell: The criminal justice system favors finality and relies on plea bargains to keep it humming along, and lawmakers are often loath to intervene.

Exactly how many people may be eligible for release under the new law isn’t entirely clear, in part because of the way records are kept. Nationally, it is estimated that a staggering 20 percent of individuals convicted of first-degree murder were sent to prison under felony murder provisions. Based on that, Re:store Justice estimates that there are roughly 800 people incarcerated in California for first-degree felony murder who may find relief under the new law. The number of individuals convicted of second-degree felony murder who would be eligible is currently unclear, as is the number of those who pleaded guilty (though it is possible that some are included in the 800-inmate estimate).

In 2016, another state lawmaker filed legislation that would have provided more clarity, by requiring district attorneys to collect data on individuals they charged with and convicted of felony murder. Despite broad support, the bill ultimately failed under pressure from the district attorneys’ lobby.

Indeed, the California District Attorneys Association, along with the California State Sheriffs’ Association and the California Police Chiefs Association, opposed SB 1437. Sean Hoffman, legislative director of the district attorneys association, told senators on the public safety committee that while “we recognize that there’s room for discussion on this concept of some level of reduced liability for individuals who are not the actual killer or major participant in one of these offenses,” the group still had problems with the bill. Chief among them: that foreclosing the possibility of charging with murder “those who are not the killer or a major participant” in the crime would not be in the interest of public safety. (Notably, research from the University of Chicago has concluded that felony murder laws do not deter crime.)

The sheriffs’ association also said the bill’s retroactivity was a problem. That was particularly true for cases that resulted in a plea deal, lobbyist Cory Salzillo told the senators, since it isn’t “always the case” that prosecutors have actually “proved up every fact” of a crime or a defendant’s alleged involvement before entering into a plea deal.

But when questioned by a member of the committee about why the felony murder rule was needed, Hoffman seemed to have a difficult time. After all, state Sen. Steven Bradford noted, a person who committed a robbery in which someone was killed could be charged with manslaughter if the facts warranted. And there was nothing in the law that would bar a prosecutor from charging a non-killer participant in connection with their role in the underlying felony. So, Bradford asked, why would a prosecutor use the rule? It would be case-specific, Hoffman responded.

“Your questioning is precisely why I am carrying this bill and trying to narrow the application” of the rule, Skinner told Bradford. “Because there is — depending on your perspective — one could say that this has evolved into a far greater amount of prosecutorial discretion than we may have intended.”

Chatfield thinks that prosecutors opposed the bill precisely because it is a direct check on their discretion. “This makes them have to prove these elements beyond a reasonable doubt, which is what they should be doing anyway,” she said — as opposed to overcharging defendants in order to force a plea deal. “You can’t just round up five people when you know four people didn’t do the killing; you know they’re not culpable. But you get to go right at them and use your discretion in that way. And we’re saying no.”

She points to several stories from across the state that Re:store Justice put together in a publication for state lawmakers. They reflect the wide breadth that prosecutors are given in deciding who to charge with murder — including in the case of a woman who was passed out in a car blocks away when a murder happened. “That’s how that prosecutor used his discretion,” she said.

tony-vigeant-1542749514

Joanne Scheer, left, and her son Tony Vigeant.

Photo: Courtesy of Joanne Scheer

Who the Law Leaves Out

For all the hand-wringing about how curtailing the use of felony murder would tie prosecutors’ hands, force them to revisit old cases, and allow some defendants to go free, there is still a large group of people incarcerated in California under the rule who the new law will not immediately effect: Those serving death sentences or life without parole, even when their connection to the crime might have been tangential or tenuous.

In California, the imposition of a sentence of death or life without parole requires a “special circumstance” finding — that the defendant was a “major participant” in the crime or acted with “reckless indifference” to human life. These add-ons were created by ballot initiative back in 1978 and can only be changed by another initiative or a supermajority vote in the Legislature.

But even a jury’s finding that one or both of these special circumstances applied to a particular case doesn’t necessarily tell the whole story, says Joanne Scheer, founder of the Felony Murder Elimination Project and a co-sponsor of SB 1437. Her son Tony Vigeant is serving life without parole after a jury concluded both special circumstances applied to his role in the murder of a man named David Pettigrew in 2007.

According to the state, Vigeant and his cousin, both Marines who were stationed at Camp Pendleton, enticed a third service member, Ramon Hernandez, who had sustained a major brain injury during a tour of duty in Iraq, to shoot Pettigrew in a dispute over an alleged drug debt. Scheer disputes that narrative and says that what actually happened was a tragedy rooted in a string of poor, but pedestrian, decisions. After a day of watching football and drinking beer, Scheer says, the three Marines decided to go to Pettigrew’s to collect a laptop that Vigeant had sold him, but that Pettigrew had not yet paid for. Vigeant knew Hernandez had a gun, says Scheer, but it never occurred to him that anything would happen at the apartment, let alone a murder.

Scheer has been working with California’s corrections department to try to figure out how many inmates may be serving a life-without-parole or death sentence based on a theory of felony murder. As of the end of July, there were 5,206 people serving life without parole in the state; of those, more than 3,700 were first-time offenders and more than 3,200 were under the age of 25 at the time of the crime. Because it appears that so many individuals convicted under accomplice liability are young, first-time offenders, Scheer suggests that a large number of inmates serving life without parole might have been swept into prison under the rule.

“I’m not coming off saying that prosecutors are bad. I go to prosecutors’ offices. I got an hour and a half in a DA’s office and they answered my questions,” she said. “I said, ‘Why do you think we need felony murder?’ And they said, ‘Because without it, the killer may get away.’ I said, ‘But does felony murder assure you that you got the murderer?’”

Although SB 1437 doesn’t provide direct relief to people like Vigeant, the California Supreme Court has created an avenue for potential review. The court opined back in 1983 that the felony murder rule could be “barbaric” in application, and in more recent years, it has issued a string of decisions that would rein in indiscriminate use of the “major participant” and “reckless indifference” special circumstances that can so dramatically increase punishments. The court’s decisions have provided a framework for a defendant to have the imposition of special circumstances reviewed; if the courts agree they were improperly applied, they can be tossed out. If that happens, the case could be eligible for review under the provisions of SB 1437.

If Neko Wilson had gone to trial soon after he was arrested in 2009, he might be in the same boat as Vigeant — after all, the state signaled early on its intention to seek the death penalty. But there were flaws with the case from the get-go, says his brother and defense lawyer Jacque Wilson, including repeated failures by the state to turn over key exculpating evidence. The years that Jacque spent fighting the state meant that Neko was still in jail awaiting trial when SB 1437 finally passed out of the Assembly on August 29.

Jacque had been sweating it out, waiting to see if the bill would pass — and for a while, things in the Assembly looked dicey. Lawmakers on each side of the debate made impassioned speeches on the floor, urging colleagues to follow their lead. When the voting started, it didn’t look like the bill would get the 41 votes necessary. Chatfield was there, pacing the hallways, sending texts, and making calls in an effort to gin up final support. As it turned out, Brown, a supporter of the legislation, was making calls of his own. The vote was held open, and finally, with 42 votes, the measure passed. That’s when Chatfield called Jacque. Both of them broke down in tears.

Fresno prosecutors dropped the charges against Neko, and on October 18, he was the first person freed by the new law. Relief flooded Jacque. After Neko was arrested, their father, Mack, told Jacque that all he wanted was to be able to touch his son again. Now 83, he’s been able to do that. “From my family’s perspective,” says Jacque, “this is a miracle.”

Violent Crime as Part of the Equation

Alexandra Mallick, executive director of Re:store Justice, hopes the new law will provide the same relief for other families in California — and potentially elsewhere.

In her work with incarcerated people, she had grown tired of hearing stories about individuals doing time for murders they did not commit. “If we’re really talking about a just and fair system, someone who didn’t even commit murder spending a longer time in prison than someone who did — I don’t see how that’s fair,” she said. “It’s just something that I thought was so unjust and that it was a duty to right this wrong.”

The U.S. is an outlier when it comes to felony murder, says Lara Bazelon, director of the Criminal Juvenile Justice and Racial Justice clinics at the University of San Francisco law school. “It’s hundreds of years old, and the rest of the Western world has turned its face against it and has abolished it,” she said. “The U.S. stands alone.”

Although there are roughly 40 states that have some version of the felony murder rule, there are some that have curtailed or abolished it altogether, including Arkansas, Hawaii, Kentucky, Massachusetts, Michigan, and Ohio. Since passage of SB 1437, Mallick and Chatfield say they’ve been fielding inquiries from across the country from individuals and groups interested in passing similar legislation in their states. Chatfield has heard from lawyers in New York and Pennsylvania. Attorneys from Massachusetts have called, too; they’d like to see their provisions made retroactive. Mallick says she’s been in touch with a group in Texas interested in pushing for reform during the state’s 2021 legislative session.

Mallick says that part of what’s so meaningful about California’s reform of the felony murder rule is that it has addressed the issues of system reform and violent crime head on. “Doing stuff that deals with violence or issues around violence is not incredibly popular,” she said. “But my belief is that you can’t really move the needle with mass incarceration unless you talk about issues around violence.”

Chatfield agrees and hopes that California’s success will lead to more discussion and action. “I think it starts a conversation about what we talk about when we talk about ‘violence.’ What does it mean when we talk about murder? If somebody doesn’t do anything to facilitate that murder and doesn’t have that intent, what does it mean to call that person a murderer?” she asks. “I think it’s a very important conversation about how we’ve labeled a lot of our crimes. And if we can address something called ‘felony murder’ and educate people, we can educate people about a lot of things.”