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October 28, 2015

"Why California's Second-Degree Felony-Murder Rule Is Now Void for Vagueness"

The title of this post is the title of this notable new paper authored by Evan Tsen Lee now available via SSRN. Here is the abstract:

For years, justices on the California Supreme Court (CSC) have engaged in public soul-searching about whether to overrule the state’s second-degree felony-murder doctrine.  Now there is a powerful external reason for the CSC to revisit the question: The United States Supreme Court (USSC) has just struck down the so-called “residual clause” of the federal three-strikes statute as unconstitutionally vague.

Although the immediate intuition of experienced judges and lawyers will be to deny that this decision has any application to the felony-murder rule, this Article will show that, from the standpoint of vagueness, the two provisions are materially indistinguishable.

October 28, 2015 at 01:07 PM | Permalink


OW Holmes has never been wrong. He supported felony murder. Someone grid to argue against its deterrent effect. I redid his arithmetic. The correct arithmetic prove OW was right again.

Posted by: Supremacy Claus | Oct 28, 2015 3:15:05 PM

I have been a CA prosecutor for 17 years doing homicides for the last ten. No one uses second degree FM anymore and haven't for some time. I haven't seen a published second degree FM case in years. Second degree FM especially fell out of favor after P.v.Chun in 2009.

I won't have to address the question of whether Johnson applies, I doubt virtually anyone else will either (except on habeas). Because there aren't likely any new cases in the pipeline, the author's wish of reversal by the CA Supreme Court may never occur.

Posted by: David | Oct 29, 2015 8:38:27 AM

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