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    Should Brandon Hein be released from prison?

    Date: 09.01.09 | by Judge Tom.

    In 1995, Brandon Hein was an 18-year-old boy in California.  He and three friends were out cruising around and drinking.  They went to buy marijuana from two other boys in the neighborhood.  They got into an argument and one of Brandon’s friends pulled a knife and stabbed 16-year-old Jimmy Farris, who bled to death.

    A jury convicted Brandon of attempted robbery and, under California’s felony murder rule, also of murder.  He was given the same sentence as the boy who committed the murder - life in prison without the possibility of parole.

    Brandon Hein

    In 2009, Brandon’s sentence was reduced to 29 years to life with a chance of parole.  Under California’s sentencing laws, 85% of a sentence must be served before becoming eligible for parole.  For Brandon, that means he must serve another 10 years before appearing before the parole board.

    What do you think of the felony-murder rule?  Basically, it says that anyone can be charged with murder if someone dies during the commission of a felony, even if you’re not the triggerman.  Does it make sense or is it cruel and unusual punishment? Do you think it is a deterrent to crime?  Why or why not?

    Find out more about Brandon Hein’s story and watch videos of interviews that have been conducted.

    Judge Tom

    This post was written by Judge Tom. Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published 'Teen Cyberbullying Investigated' (Free Spirit Publishing). When he's not answering teens' questions, Judge Tom can be found hiking, traveling and reading.

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    4 Comments subscribe to these comments.

    • Karen Baxter
      Wed, 02 Sep 2009 at 07:03

      The case of Brandon Hein is further evidence that collective attribution of guilt/crime is an abdication of individual value and a blurring of personal responsibility. Why is a whole group responsible for the act of a single person? As in Brandon Hein’s case involving a backyard brawl with teenagers over marijuana, where one individual chose to use a pocket knife that ended tragically. The other individuals, including Brandon Hein, never gave consent to such an act. The ‘blame game’ is just as stupid if you set the person free that did it because the rest of the group didn’t do it: collective innocence!!! Perfect justice is to require personal responsibility for the deed by the killer. Every other person cannot be blamed! It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unseen and un agreed-to results of another felon’s action. The felony murder rule violates the Fourteenth Amendment’s guarantee of due process, more specifically, equal protection of the law, because no defense is allowed on the charge of first-degree murder, only the underlying felony. The felony murder rule is unconstitutional because the presumption of innocence is thrown out. The prosecutor must only prove intent to commit the original felony; once done, first degree murder attaches to the underlying felony even though intent, to commit murder does not have to be proved. The felony murder rule is unconstitutional because it violates the Eighth Amendment: cruel and unusual punishment, grossly disproportionate sentencing to the crime(s) actually committed. California is one of only eight states in the United States that still recognizes and practices an ancient law brought over from England in the 1700’s called the Felony Murder Rule (FMR). This little known, yet controversial law has been declared unconstitutional in the other 42 states of the United States, as well as every democratic country in the free world including England where it originated. But here in the State of California, it is alive and well. This is America – not North Korea. Collectivist injustice is not Constitutional justice. Brandon Hein’s case should not need to go all the way to the US Supreme Court. If it does, those who do participate in or reject their opportunity to act responsibly bring shame on us all. Our California Governor should do the heroic thing. Will he? We’ll see….

    • Dean Connor
      Thu, 03 Sep 2009 at 11:15

      The Murder-Felony Rule has already been brought before the Supreme Court. In Enmund v. Florida (1982) the court ruled:”Neither deterrence of capital crimes nor retribution is a sufficient justification for executing petitioner. It is unlikely that the threat of the death penalty will measurably deter one, such as petitioner, who does not intend to kill. As to retribution, this depends on the degree of petitioner’s culpability, which must be limited to the robbery.”

      While most SC decisions are deemed to be precedent setting; this one has been ignored on numerous occasions since 1982. The murderer of 6 year old Dae’von Bailey (also in CA) has been charged with 2nd degree murder. Under CA law; the mandatory sentence is 15 yrs. to life for his crime. Disgusting! The concept of the punishment befitting the crime has obviously not been factored into Brandon’s case. If this is not a violation of the 8th Amendment, then I am unable to fathom what could be.

    • William
      Tue, 29 May 2012 at 03:36

      Hello all you Americans. I am hoping my e-mail address will not be removed from this post?
      I live in the south east of England. I wish anyone who has detailed knowledge or the Felony Murder Law to contact me on the address provided. The purpose of any such communication is to exchange information that may be useful in campaigning issues in this country. The 1957 Homicide Act did enact the abolition of constructive malice but It was not until the Criminal Law Act 1967 abolished the distinction between felonies and misdemeanours that the old common law rules on malice for the proof of mens rea in felonies could no longer apply. But don’t be misled, a similar doctrine called
      the “Joint Enterprise doctrine” replaced it. Strict liability elements were severed in its replacement but, the difference in likely culpability is only very slightly improved for the accused. So many teenagers are still being found guilty of ”felony murder”. However, draconian sentences that are taking place in the U.S
      are not the case in this country.
      E-mail me and we can talk more?
      Dear William: All the best in your research. As you know the felony-murder rule applies in the U.S. to juveniles as well as adults depending on specific state laws. One story we posted about California teenager, Brandon Hein, is here:
      Our posts concern teenagers, not adults since we’re a teen-law website.
      (This is information only – not legal advice).

    • William
      Wed, 30 May 2012 at 02:23

      The great thing with America is its constitution, notwithstanding rouge interpretations a fantastic point of moral reference. Subscribing to the premise that root core values cannot change merely by the passing of time, the United States of America can attribute much of its former success to holding and living those very Christian values enshrined therein. I, as an Englishman, Salute the fortitude of your forefathers in their wisdom. The world has changed enormously since that time, accordingly laws have necessarily evolved. That is how it should be. However, perhaps not just the U.S but the worlds “core values “have” (arguably) changed? The greatest Englishman in the legal profession was,
      William Blackstone: Blackstone’s formulation: “better that ten guilty persons escape than that one innocent suffer”
      The media can and do attempt to indoctrinate us to the view that suits the powerful. Given the case that we receive our information through those various media outlets, the masses concepts of reality are controlled in a manner conducive with political and business interests. In England, typically, the felony murder charge (Joint Enterprise murder) forms from (in truth) a non-felonious basis. A group of youths hanging around with their friends, trouble starts one or two of the group’s number gets into an altercation resulting in a death, all are arrested and charged with murder? Typically they will be called a gang and thereby limit their chances of an acquittal .The allegation of being in a gang is rarely proved but serves against them. They are classified as part of a common design, with a common purpose. Since the 2003 Criminal Justice Act, the jury can hear any previous criminal convictions the defendant has. Since that Criminal Justice Act, they can also hold silence in the police interview against the defendant.
      What are the differences in America in due process in that same situation?
      Dear William: The basic concept of ‘due process’ regarding criminal law in America guarantees one the right to be notified of all charges filed against them and the right to be heard in response to those charges. We have specific rules of evidence and procedure that apply in all cases and differ from state to state, and a set of rules for federal offenses. Challenges to the constitutionality of these rules and practices are subjects of appeal through the courts with a few occasionally reaching the Supreme Court. Further comment would require an in depth analysis of due process. Such materials are available online and you’ll surely come across in your research.
      (This is information only – not legal advice).

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