San Quentin News

Written By Incarcerated - Advancing Social Justice

Accidental overdoses prosecuted as felony-murder under new laws

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Two months after her fiancé’s funeral, Kimberly Elkins pleaded guilty to manslaughter.
Elkins, now 49, used fentanyl to deal with chronic pain. One day, she shared a fentanyl patch with her fiancé, Aaron Rost, and they overdosed. She woke up that night, but he didn’t. She was sentenced to four years in prison in Minnesota for his death, according to the New York Times.
“I struggle really hard with this…trying to find my responsibility in it,” says Elkins as she sits in prison for sharing the fentanyl with him.
The cases are more common among drug abusers, but are not limited to them. Friends and family members who provided or sent the drugs to someone who overdoses and dies as a result can be arrested and charged for felony murder.
Mark S. Rubin, the Washington County attorney who pursued the case against
Elkins, compared overdose prosecutions to a fatal collision—even if they did not intend for the other to die, they are still responsible.
“We feel that constitutes a crime of possibly murder in the third degree, but at least manslaughter in the second degree,” Rubin said.
On Rost’s Facebook page there was a debate by family and friends about whether Elkins is responsible for the death of her fiancé, the New York Times said. Rost’s sister backed the prosecution of Elkins death.

“I struggle really hard with this…”

“How the hell can you sit and blame her for it all, considering whether she gave it to him or not, he still had the choice,” one friend wrote, calling Rost’s sister “heartless.”
Rost’s sister responded, “I’m heartless? I had to plan a funeral for a 36-year-old man.”

According to The New York Times, the whole notion of overdose homicide prosecution is based on the 1986 cocaine-related death of Len Bias, a one-time college basketball player on the road to going pro, who collapsed two days after he was drafted into the NBA by the Boston Celtics.
Bias’ friend was charged in the overdose-homicide, but was later acquitted of any wrongdoing. States started passing laws, nicknamed “Len Bias laws,” which were designed to prosecute drug dealers when the sale of drugs resulted in death.
Alabama, Colorado, Florida, Louisiana, New York, and Pennsylvania have passed “Len Bias” laws to go after drug dealers. From 2015 to 2017, in the 15 states where the New York Times gathered most of its data, there were more than 1,000 cases like Elkin’s that involved accidental deaths. The charges against friends, family, and drug users in these cases ranged from manslaughter to murder.

SB 1437 eliminates felony-murder rule

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Due to a change in the felony-murder rule, starting Jan. 1, codefendants will no longer automatically be considered guilty of murder for participating in crimes such as armed robbery. The law is retroactive.
On Sept. 30, with a stroke of his pen, Gov. Jerry Brown made Senate Bill 1437 the law. The bill presented by Senator Nancy Skinner (D-Berkeley) states that prosecutors can no longer hold accomplices, who had no intent to kill anyone during the commission of certain specified crimes, accountable for a murder committed by a codefendant.

California’s old felony-murder rule held that when a defendant or a co-defendant commits certain felonies and someone is killed, both defendants are guilty of first-degree murder.
“California’s murder statute irrationally treated people who did not commit murder the same as those who did,” Skinner said after Governor Brown signed the bill into law, according to a Rolling Stone article.“SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”

Under the new law, an accomplice who didn’t actually do the killing can still be held liable if they participated in the underlying crime with an intent to kill and “aided, abetted, counseled, commanded, induced, solicited, requested or assisted” the actual killer in carrying out the murder.
Also, if the accomplice was a major participant in the underlying felony and “acted with reckless indifference to human life” or the victim was someone the culprits “should have reasonably known was a peace officer acting in the line of duty,” they would still be guilty of felony-murder.

San Quentin resident Richard Zorns was convicted of first-degree felony murder 29 years ago for acting as the getaway driver in an armed robbery. Zorns said he participated in the robbery in a misguided attempt to solve several family problems.

“The family crisis in my life had me overwhelmed and impatient, and I thought I could fix it with money,” Zorns said.
Joining in a robbery made things worse for Zorns. According to his Lifer Prisoner Evaluation Report, two codefendants robbed a swap meet while Zorns waited outside in a white Thunderbird. While trying to flee, security guards apprehended one of them and the other co-defendant shot at a guard three times, killing him. The two co-defendants escaped the scene in the car driven by Zorns. For the conviction of murder, all the prosecution had to prove was that Zorns participated in the robbery.

Under the new felony-murder rule, the prosecution would have to prove that Zorns drove his co-defendants away from the scene knowing they just killed a security guard outside of his vision.

“No matter what, my action contributed to somebody being murdered, and I’ll always have remorse about that,” Zorns said. “My mom knows that my intentions were never to hurt anybody.”

An estimated 400 to 800 people incarcerated in California for felony murder will have a chance to petition the court for resentencing, even if they took plea deals, according to Rolling Stone.
The court must vacate the conviction and re-sentence those imprisoned for felony murder or for “murder under a natural and probable consequences theory” who also qualify for relief under the new law.
“No one deserves to die, so I’m sad someone was murdered, but I’m relieved to have a second chance,” Zorns said.
To benefit from the change in law, a petition has to be filed in the court that sentenced the person.

Senator and author share challenge of passing SB 1437

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It’s hard to get laws changed, even harder to make any revisions applicable to people already serving their time, nevertheless Senator Nancy Skinner (D-Berkeley) retroactively transformed California’s felony-murder law with the help of the Re:store Justice organization and others.
“Retroactivity was the hardest part, yet it was essential because how can we fix the law, how can we tell people convicted under the unfair rule, sorry stay in prison,” Senator Skinner said. “It’s not right.”
Re:store Justice Policy Director Professor Kate Chatfield, who was the main drafter of the original bill, talked about the help it took to get the law changed. “We had the support of many grassroots organizations, and families of incarcerated people wrote letters, came to the capitol and made their loved ones human through their stories.”
Since 1978, California’s felony murder rule allowed prosecutors to seek the death penalty, life without the possibility of parole or a life sentence for anyone involved in a crime that resulted in a murder, even if they didn’t have anything to do with the actual killing and didn’t intend for someone to die. Participation in specified felonies like robbery or carjacking was enough for an accomplice to receive a first-degree murder conviction.

The California Supreme Court spoke against the felony murder rule back in 1983, calling it an outdated `barbaric’ concept,” according to a Rolling Stone article. A survey found that 72 percent of the women convicted of murder in California did not personally kill anyone. The survey was done by the Anti-Recidivism Coalition (ARC) and Re:store Justice. It also found that the average age of someone convicted as an accomplice to murder is 20 years old, according to an article in the San Francisco Chronicle.

Kate Chatfield


Past attempts to change the felony murder rule did not make it out of committee, according to Mariah Watson, a legislative aide to Senator Skinner, who also worked on the felony-murder rule bill SB 1437.
The success of the felony-murder rule revision happened when a team of passionate people joined with Senator Skinner.
“She put her heart and soul into this bill,” Watson said.
It all started with Alex Mallick of Re:store Justice.
Mallick previously worked at Human Rights Watch and volunteers at San Quentin. She started Re:store Justice in Oct. 2017.
Mallick asked Chatfield, “What could be done?”
Since law school, Chatfield has felt the felony-murder rule was unjust.
“It’s unfair one could be guilty of murder in California with no intention to kill,” Chatfield said. “The basis of the criminal justice system is fair punishment. I’m not for accomplice punishment with a life sentence for the actions of another.”
Chatfield, a University of San Francisco School of Law professor, had her students research felony murder in California and other states. Then she drafted a bill.
Mallick proposed the bill to Senator Skinner.
“In California, we pride ourselves on being progressive, on being leaders on so many issues, intellectuals on the environment…but when we look at our criminal justice system, we are the poster child of mass incarceration,” Senator Skinner said. “When we look at who is in prison, it’s poor people and people of color. There’s something wrong here, something unfair. That’s why I’m passionate about criminal justice.” Senator Skinner approved of the bill and decided to seek to change the felony-murder rule so that people without the intent to kill and who didn’t do anything to aid the killing are no longer held liable for a murder committed by their co-defendant during the commission of another crime. There is one exception to the revised felony-murder rule. In cases involving the murder of a peace officer act- ing in the line of duty, where the defendant knew or should have reasonably known the person was a peace officer, relief is not available.
Watson, Senator Skinner’s former aid, took on many of the duties associated with getting the bill passed.

“Re:store Justice brought us a version of the bill,” Watson said. “We owe our success to Alex Mallick and Re:store. They held us accountable.”
Watson said she’s motivated to see positive changes in the criminal justice system. The woman, from Inglewood, California, has a brother who has been in and out of prison since she was six. Watson worked to get Senate Bill 1437 passed for three years.

At first, a senate resolution was presented to state legisators, asking that the felony murder rule be addressed. In 2017, the lawmakers voted to do something about the felony-murder rule and Senator Skinner came back with SB 1437.
About 55 organizations sponsored SB 1437. Chatfield named ARC, Youth Justice Coalition and Felony Murder Elimination Project among them.

Watson spoke of the many mothers who fought to get their offspring out of prison, like Tina Marie. Even before Re:store Justice presented the bill, Marie came to Senator Skinner’s office seeking help for her child in prison under the old felony-murder rule, and she never stopped check- ing in until the law changed.
“Seeing mothers fighting so hard to have any hope—I felt it personally,” Watson said.
The bill also had bipartisan support from Republican Senator Joel Anderson.
District Attorneys argued against making the bill retroactive.
“District attorneys felt that the law would in- crease their workload,” Chatfield said. “It would be confusing to see who’s eligible, so some district attorneys lobbied hard against us.”

Senator Skinner argued they can better use the $80,000 a year they save by letting people out on this law, according to the Rolling Stones article.
The bill passed through the numerous stages of the state legislature.

Senator Skinner and Watson hugged on the assembly floor when, after an hour and a half, the bill got enough votes to move on to the governor’s desk.
“It was personal to me,” Watson said. “If it didn’t pass, we would have to see the faces of all the mothers. Re:store would have to see people who, if it didn’t pass, wouldn’t be coming home.”
On Sept. 30, Gov. Jerry Brown signed the bill into law.
“Senator Skinner is a warrior for incarcerated people,” Mallick said. “She is bringing so much hope to families around the state.”
A resentencing guide and petition are available free at www.restorecal.org. Additionally, Re:store Justice is touring all California prisons to teach people how to file for relief under the new felony-murder law.

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