The bill to change Colorado's laws around felony murder survived a challenge in the Senate on Tuesday, but eventually won preliminary approval.
Senate Bill 124 is sponsored by Sen. Pete Lee, D-Colorado Springs. When SB 124 was first introduced, it suggested changing felony murder, a first-degree charge that carries a sentence of life without parole, to second-degree murder with a sentence of eight to 24 years, although he also proposed a sentence enhancement under certain circumstances.
Under the felony murder statute, those who don't actually participate in the crime of murder can still be sentenced to life in prison if another person involved in a related crime commits the murder. Judges have no discretion on this sentence, Lee explained to the Senate Judiciary Committee on March 18.
Felony murder is an exception to the principles of fairness, proportionately and culpability embedded in the justice system, Lee said. "Liability is imposed regardless of intent," he said.
Felony murder is a relic of ancient English Common Law, when all crimes were capital crimes, punishable by hanging, he said. "It's disproportionately used against people of color," he said, adding that in the last five years, 65.5% of those convicted under the felony murder charge were people of color.
Lee said his bill changes felony murder from a mandatory life sentence, first-degree crime to a second-degree "crime of violence" with a 16-year to 48-year sentence, under a rewrite of the bill approved by the committee. The crimes tied to SB 124 include felony arson, robbery, burglary, kidnapping, sexual assault, including sexual assault on a child; and felony escape.
SB 124 as amended allows for an affirmative defense when the defendant is not the only person involved in the underlying crime, did not commit or aid in the murder, was not armed with a deadly weapon and did not believe that any other person involved intended to kill.
Though Lee explained through a hypothetical how felony murder works, there were plenty of witnesses who testified about what it's like in real life.
Lisl Auman was sitting in a police car, handcuffed, when her companion shot and killed a Denver police officer, Bruce VanderJagt, in 1997. The case drew national attention when gonzo journalist Hunter S. Thompson and actor Johnny Depp took up her cause. In 2005, the Colorado Supreme Court tossed the conviction, and Auman later pleaded guilty to burglary and accessory to first-degree murder, with a 20-year sentence. She was sentenced to community corrections and released a year later.
Colette Tvedt, representing the Colorado Criminal Defense Bar, and who has represented people sentenced under the felony murder law, told the committee that the statute is unjust. Other laws look at conduct —and the more severe the conduct, the more severe the punishment — but in felony murder, intent is not taken into consideration, she said. The bill will allow the jury to consider conduct and culpability for each participant. It does not require a life sentence, which will take the pressure off in plea negotiations.
Judges would have more discretion in sentencing, Tvedt said, but still can hand out a lengthy sentence. At 48 years, that's still a possibility of life in prison.
"We should punish people for what they have proven to have done" beyond a reasonable doubt, not for the actions of others, added Tristan Gorman, also with the criminal defense bar. "We should not impose the penalty of life without parole" for someone who did not commit a murder or aid in a murder. If they are guilty of a predicate felony, that's what they should be punished for.
A long list of district attorneys — including Denver DA Beth McCann and 17th District DA Brian Mason — joined university professors, justice reform advocates, criminal defense attorneys and those convicted of felony murder or their friends and family, in testifying in support of the bill.
Curtis Brooks said in 1995, at age 15, he was homeless during a blizzard. He was offered a place to stay with the caveat that he had to help steal a car. One of the other juveniles shot and killed the car owner, but Brooks was convicted of felony murder and sentenced to life without parole. Hickenlooper granted him clemency in 2018; he was released in 2019.
"The scope of felony murder reaches too far," Brooks told the committee. "If you commit a heinous crime you should get a heinous sentence." Brooks said he received a letter from the judge who said the sentence was not just or appropriate, but he had no choice. Jurors cried when they found out he was sentenced to life without parole.
The bill will not hamper a DA's ability to prosecute a crime, Brooks said.
He is now living in Maryland and works several jobs, including for the Prince George's County education coalition, where he tells his story to the next generation.
District attorneys also spoke against the bill, including John Kellner of the 18th Judicial District in Arapahoe, Douglas, Elbert and Lincoln counties. He said in 2020, the state saw a surge in homicides; in Denver, it's a 51% increase and in Aurora, a 50% rise in homicides. This is not the time to lower the consequences for criminals who kill in the course of committing other serious felonies, Kellner said.
There would be no added penalty for killing a victim, he said, noting that many felony murder cases don't include co-defendants.
Lee countered it with an example of someone stealing a car. The car owner rushes out to shoot at the suspect, instead killing an innocent bystander. The suspect is then convicted of felony murder under the current law, Lee told Colorado Politics.
During debate on SB 124 in the full Senate on Tuesday morning, Sen. Rhonda Fields, D-Aurora, talked about the murder of her son and his fiancée. Two men were convicted of those murders and sentenced to death, with those sentences later commuted to life without parole.
"Here we go again," she told the Senate. "There's no truth in sentencing. They keep moving the mark."
SB 124 is not the right approach, not the right time, and sends an unclear message, she said. There were three offenders in that call who ambushed and murdered the pair.
"You want to move the penalty, when two innocent people were killed" and under SB 124 they would get 48 years. However, Lee told Colorado Politics that the law envisioned under SB 124 would not have applied to the murders of Field's son and fiancée, since all the people convicted either pulled the trigger or aided in the crime.
The bill heads to a final vote in the Senate Wednesday.