Hastings Constitutional Law Quarterly


Evan Tsen Lee


In late June 2015, the U.S. Supreme Court struck down part of a federal three-strikes statute as unconstitutionally vague. Although that would seem to have nothing to do with the felony-murder rule, since the two rules would never come up in the same case, in fact the Court's rationale for finding the federal statute vague applies to California's unique seconddegree felony-murder rule all the way down the line. Like other states, California insists that the predicate felony in felony-murder be "dangerous to human life." Unlike any other state, however, California decides which felonies are dangerous not by looking at the actual facts of the case, but by hypothesizing facts. This judicial imagining of facts in order to gauge riskiness or dangerousness is exactly what doomed the affected provision of the federal three-strikes statute. The California Supreme Court could remedy the constitutional problem by switching to the "actual facts" approach followed by other states in felony-murder, but that approach has its own serious problems. Thus, the second-degree felony-murder rule may not be worth saving.