Cortese: Modest reforms to California sentencing law would address extreme injustices

Have you ever wondered why two people who get charged with exactly the same crime get sentenced to completely different prison terms?

The answer is something called “judicial discretion.” It means that, in the absence of a fixed rule, and with regard to what is fair and equitable under the circumstances and the law, a judge is allowed to consider individual circumstances when deciding a sentence.

This immense responsibility falls with a judge. Should a convicted murderer be sentenced to 25 years-to-life? Or life in prison without the possibility of parole? For a judge, this decision depends on the underlying facts and evidence revealed during a trial.

That is except in one very misguided California murder sentencing statute: felony murder special circumstances law.

In this case, if an accessory to a murder is convicted—even an unwitting accessory or someone who only committed a lesser offense, with no actual intent to be involved in a murder—that person under “felony murder special circumstances” sentencing either receives the death penalty or goes to prison for life without any possibility of parole. There is absolutely no discretion afforded to the sentencing judge as to what might be the fair and equitable sentence under those circumstances.

Therefore, a driver in a vehicle fleeing a robbery with no intent to kill can receive the sentence of life in prison without the possibility of parole, while a co-defendant who pulled the trigger gets 25 years-to-life in prison.

Consider the case of Tammy Cooper who the LA Times noted “was sex trafficked at 14 [and] spent 28 years in prison for a murder committed by her abusive pimp.” Tammy’s abuser forced her to drive him to commit a robbery and then he killed the victim. Prosecutors charged Tammy with “felony murder special circumstances” in the hopes that she would testify against the abuser, but facing death threats, she refused. The abuser was acquitted and released while Tammy was sentenced to life without parole.

After 28 years in prison, Gov. Jerry Brown commuted Tammy’s sentence. But had he not, she was destined to die in prison while her co-defendant who committed murder was set free. Had Tammy’s judge had discretion, he likely would have made her eligible for parole after 25 years.

As a former criminal law attorney and current state senator, issues of criminal sentencing laws are a priority for me. I agree that any participants in a murder should be convicted. What I don’t think is fair are side-by-side convictions resulting in radically different sentences.

That’s why I have authored Senate Bill 300, a bill that would restore judicial discretion to judges allowing them to order a sentence other than the death penalty or life in prison without parole for “felony murder special circumstances” cases.

Under SB 300, Tammy would have still been convicted, but with a sentence commensurate with her lesser role in the crimes and the sentences of others involved. This bill would not eliminate murder sentences. It would not eliminate special circumstances. It would not release anyone already convicted. It would simply allow judges to fit the punishment to the level of criminal participation.

The “felony murder special circumstances” rule is one disproportionately impacting our young people, women—who are more likely to become criminalized due to the actions of their abusers—and Black and Latinx communities that make up two-thirds of this prison population in California.

The state Legislature must stop these unjust sentencing schemes once and for all. I’m proud that the state Senate recognized this problem and approved SB 300 overwhelmingly with a clear and convincing two-thirds vote. Now, we hope the state Assembly responds the same way. Through modest reforms, we can end extreme injustices.

Dave Cortese serves in the California Senate representing District 15.