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Anissa Jordan was born in Oakland, California, in 1968, the last of eight children. For years, her mother’s live-in boyfriend beat and molested her and her half sister Althenia. The girls didn’t tell their mother. “It was our secret,” Jordan told me. When Jordan was in fourth grade, Althenia was murdered. The case was never solved.
Jordan was held back in school, started acting out, and was sent to juvenile hall. By 10th grade, she was spending most of her time “partying and having fun and smoking weed and drinking beer.” More stints in juvenile hall followed, then a string of arrests and convictions as an adult, nearly all of them theft-related. She had her first child, Amanda, at 21, followed by two more daughters and a son.
In 2005, Jordan was 36. She was on felony probation, unemployed, and addicted to drugs and alcohol. She had moved in with her mother, who was caring for Jordan’s children. “I was truly broken,” she said. Then Jordan met Greshinal Green, a sweet-talking man with a violent criminal past. He told Jordan that he loved her and promised her “all these fantastic things.” But first, she had to help him.
One night that May, Jordan crossed the Bay Bridge into San Francisco in a white Toyota Camry with Green and a woman named Lenora Robinson. Jordan, carrying a red purse and her hair in gold braids, played the role of decoy. She and Robinson approached two men in the Tenderloin, a high-crime area of the city, and asked if they had any ecstasy tablets. Green then emerged from the shadows with a Smith & Wesson .38 Special.
Jordan stood nearby as Green ordered the victims to lie down. “Make sure you got everything,” he told Robinson. Jordan went back to the car and hid a necklace belonging to one of the victims in her purse. She remained there as Green and Robinson left to seek out another mark. She was still in the car when Green and Robinson tried to rob a third man, Carlos Garvin. When Garvin resisted, Green shot and killed him.
Two uniformed police officers happened to be in a patrol car nearby. Over the radio, a dispatcher reported the shooting and a description of the suspects. The officers pulled over the Camry with Green, Robinson, and Jordan inside. Jewelry belonging to one of the first victims was found in Jordan’s purse.
The state charged the suspects with first-degree murder. Although Jordan was not at the scene when Garvin was killed, and hadn’t participated in the attempt to rob him, prosecutors argued that she was responsible for any acts committed as part of the day’s larger plot. In for a penny, in for a pound.
In June 2006, a jury returned a verdict. It found Green, Robinson, and Jordan guilty. (A fourth defendant, who had driven the Toyota on the night of the murder, was acquitted.) Kamala Harris, then the San Francisco district attorney and now the U.S. vice president, held a joint press conference with Gavin Newsom, then the city’s mayor and now California’s governor to praise the verdicts. “We in San Francisco will not tolerate people coming into this town to commit crimes,” Harris said. “We will punish them to the fullest.”
Before she was sentenced, Jordan wrote the judge a letter protesting that she’d had nothing to do with Garvin’s death. “I have 4 beautiful children and never would I dare be a part of something so harsh that would separate me from them forever.” Pleading for mercy, she added, “I was in a car not knowing what’s going on.” No mercy was forthcoming. For Garvin’s murder, the judge sentenced her to 27 years to life.
Jordan was convicted of felony murder, a legal doctrine widely applied in the United States, if dimly understood outside the legal profession. In many states, felony murder allows prosecutors to charge a defendant with first-degree murder even if that person had no intent to kill—and even if that person is not alleged to have struck the fatal blow.
Under California law at the time, the jury in Jordan’s case had to consider whether she’d conspired to commit robbery. If so—and if one of her co-conspirators then killed Carlos Garvin—Jordan, too, was responsible for his death. At trial, the jury acknowledged that Jordan did not take part in the robbery of Garvin, acquitting her of those charges. But because the jury concluded that she had conspired to commit robbery that day, she bore the same responsibility as Greshinal Green, who actually pulled the trigger.
California first enacted a felony-murder statute in 1850. The concept has its roots in British common law, though it was sparingly used in England, held in disfavor because of its peculiar severing of intent from consequence. (As the prosecutor in Jordan’s case told the jury, “Forget about the malice; forget about the deliberation and premeditation. You don’t have to think of those when you come to felony murder.”) England abolished the doctrine in 1957, and other common-law countries have since followed suit. The lone exception is the United States.
More than 40 states and the District of Columbia still have some version of the felony-murder rule on their books. (In many states, including Texas and Georgia, felony murder or its legal equivalent can be a capital offense.) American prosecutors of both parties run for office on the basis of their tough-on-crime bona fides, and felony murder has given them a powerful tool for pursuing harsh punishments for violent crimes—frequently, as in Jordan’s case, robberies gone awry.
Proponents of the felony-murder rule defend it as a strong deterrent. Brock Lunsford, the deputy in charge of the murder-resentencing unit in the Los Angeles County District Attorney’s Office, explained the rationale behind the law: There are “certain kinds of conduct that we as a society have deemed so bad that we are trying to deter participation in it in any form. Armed robbery: We don’t want you to be the driver or the lookout. If no one played those roles, there wouldn’t be a robbery and then there wouldn’t be a death resulting from it,” he told me. “By punishing you for your role to the fullest extent, we are deterring you.”
Yet critics have long questioned the deterrent effect of the rule. One scholar, Anup Malani of the University of Chicago, examined a trove of FBI data on violent crime and found little evidence that jurisdictions that enforce the felony-murder rule saw a meaningful drop-off in the kinds of behavior it is intended to reduce. “There is no evidence it deters,” Jeffrey Fagan, a professor at Columbia Law School and an expert on criminal law, told me. “When it comes to knowledge of the law, and the mental gymnastics a person would have to go through to understand the consequences, I don’t think that the average offender is going to make that connection.”
Critics argue that prosecutors use felony murder to file the gravest charges and secure the harshest punishments for all participants in a crime, no matter how half-baked the scheme or how unintended the fatal result. For these reasons, the California Supreme Court has described felony murder as “barbaric” and “Procrustean.” But the court had no authority to change the rule. It could be undone only by the state legislature.
Until recently, that remedy seemed unlikely. Even reform-minded legislators had little appetite for depriving law enforcement of a tool intended to prevent violent crime. But in 2017, a group of criminal-justice advocates decided to take on the state’s felony-murder rule. Revising it, they argued, would strike a key blow in the fight against mass incarceration. California holds nearly 200,000 people in its jails and prisons, more than any other state save Texas. That population is disproportionately made up of people of color, a function, at least in part, of the felony-murder rule.
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The advocates, most of whom were women, also noted that California’s felony-murder rule has had a particularly deleterious effect on women. In many cases, women accused of felony murder are in relationships with male partners who manipulate or abuse them. According to a survey the advocates conducted, 72 percent of women serving life sentences for felony murder had not actually killed anyone. Nearly two-thirds of the time, the killer was the woman’s romantic partner.
The coalition found a champion in Nancy Skinner, a Democratic state senator from Berkeley. Together with Joel Anderson, then a Republican from San Diego County, Skinner co-authored a bill, S.B. 1437, that pared down the definition of felony murder. It would still be possible to bring felony-murder charges against a defendant who aided and abetted a killer, or whose participation in a criminal plot demonstrated reckless indifference to human life. But the bill would abolish the practice of prosecuting defendants—such as Anissa Jordan—who’d had no intention to kill and no hand in the killing. The bill also abolished a related but independent California law allowing for a murder conviction if a killing was the “natural and probable consequence” of an intentional but lesser crime. The legislation explicitly made these changes retroactive, providing a path for hundreds of prisoners who had been convicted under the old rules to be resentenced solely based on the lesser felony they’d actually intended to commit.
The bill faced staunch opposition. The California District Attorneys Association, the California Police Chiefs Association, and the Los Angeles County District Attorney’s Office all lobbied against its passage. As the director of the University of San Francisco School of Law Criminal and Juvenile and Racial Justice Clinics, I supported it. Students in the clinics had worked with the reformers to research how other states had amended or repealed their felony-murder statutes. In August 2018, the state assembly passed S.B. 1437 by a single vote.
When the law went into effect, in January 2019, defense lawyers filed petitions seeking resentencing hearings or even, in many cases, immediate release. The larger district-attorney offices in the state were inundated. Brock Lunsford, who was put in charge of a unit specially created to handle the more than 2,100 petitions the Los Angeles district attorney’s office received, described the law as “an earthquake” for the family members of victims of violent crimes. “We have to tell victims 10, 20 years later, when they feel like it is done—it is over; they will never get their loved one back, but at least the process has come to an end—that we are bringing it all back up again. It is inconceivable to me what we are doing to them.”
For Anissa Jordan, news of the law’s passage had an equally seismic effect. “I thought, I’m leaving here.”
We are in the midst of a historic push for criminal-justice reform, the likes of which we haven’t seen in decades, if ever. Policies that would have been unthinkable even 10 years ago—reforming the bail system, eliminating some mandatory minimum sentences—have been championed by cities and states across the country and by Joe Biden and Kamala Harris. (Harris has not weighed in publicly about S.B. 1437.)
For many, these changes are a long-overdue acknowledgment that our system must be radically overhauled: Too many people are punished too harshly, and too many well-intentioned laws have had devastating consequences. Yet reform is difficult work. Even when the political will can be mustered to pass a new law, the system itself can be slow to adapt—if not actively hostile to the new approach. And reforms, too, can have unintended consequences.
California’s effort to dramatically change its felony-murder rule shows just how steep and winding the path to positive change can be. As S.B. 1437 went into effect, prosecutors in some of the state’s most populous counties—including Alameda, Fresno, Los Angeles, Orange, and San Diego—went to court to block its implementation. In some jurisdictions, prosecutors continued to charge defendants using the old felony-murder rationale—essentially proceeding as if the new law had never been passed.
The resistance was not rooted in the facts of the individual cases; prosecutors attacked the validity of the new law itself. In case after case, they argued that S.B. 1437 violated the state constitution. The new law, they said, ran afoul of tough-on-crime referenda that had been approved by California voters. Prosecutors also warned that public safety would be threatened by, as they put it one case, the “unlawful release of convicted murderers into the community.” Defense attorneys pushed back, arguing that prosecutors were taking the extraordinary step of trying to nullify a duly passed law they were obligated to enforce.
For nearly a year, the fight played out in trial courts across the state, where different judges decided the issue differently. Some upheld the law; others struck it down. Curt Leftwich, a defense attorney in Los Angeles County, saw some clients who applied for relief under S.B. 1437 released as others sat in jail. The application of the law was “the definition of arbitrary,” he told me. Hundreds of prisoners remained in limbo, waiting for the appellate courts to render a final judgment on the new law.
Anissa Jordan’s S.B. 1437 resentencing took place in San Francisco on April 3, 2019. She was dressed in an oversize sweatshirt, baggy sweatpants, socks, and shower shoes, all the same blistering orange.
Amanda Hill, Jordan’s oldest child, was in the courtroom. Like her mother, she wore black-rimmed glasses. She waited with her arms crossed over her chest and her lips pressed together. As Jordan took her seat next to her lawyer, she turned to Hill and beamed. Hill gave her a small, tight smile in return.
Hill was 15 when her mother was convicted. After Jordan went to prison, Hill was in and out of juvenile hall for running away and selling drugs. “I was going down the same path as my mother,” she told me. She was sent to group homes as far away as Colorado. But when she found out she was pregnant, at 17, she started to clean up. “I didn’t want to leave my kids, because I know how that feels.” She found a job, got married, and had another baby. Now her children were in fourth and fifth grade. They had never met their grandmother.
Judge Charles Haines, who had presided over Jordan’s trial and sentencing, took the bench, his face flushed the same pink as his tie. The only other colors in the drab, windowless courtroom came from a vase of blooming tulips on the court clerk’s desk. The prosecutor did not oppose Jordan’s release, but Haines did not accept that concession at face value. He told the parties that he had painstakingly reviewed the case file. “I don’t want to minimize what happened. An innocent person lost his life,” he said. “But that’s not the function of the sentencing here, and it cannot influence my decision. We are here to follow the law.”
From the January/February 2018 issue: Can you prove your innocence without DNA?
The law, Haines said, required overturning Jordan’s murder conviction and resentencing her for the crime she’d intended to commit—robbery. Haines gave Jordan a term of five years in custody. Because she had already served nearly three times that sentence, he could not place her on probation or parole. She was released soon after, having been incarcerated for more than 5,000 days.
On a sunny afternoon last spring, I met Jordan for lunch in North Berkeley. I barely recognized her. Dressed in a peach T-shirt and brightly patterned leggings and wearing frosted-pink lipstick, she looked 10 years younger than she had in the courtroom during her resentencing.
Jordan feels profound joy and gratitude for her unexpected freedom, though she also believes she earned it. “I did a whole 180 in prison,” she said. “I wasn’t trying to be in the game, in the madness. Battles came to me, and I walked away.” She still faces resistance—from potential employers, from members of her community, and even from some family members—to her claim that she is a different person than when she went to prison. She wants to prove them wrong. “Even water goes through changes. It hits rocks; it moves directions,” she told me.
To me, Jordan’s story seemed like a straightforward case of overreach and redemption. But other cases are murkier. Shortly after arriving in prison in 2006, Jordan became close with Nicole Carroll, a young woman who also hoped that S.B. 1437 would lead to her release.
In 2005, Carroll was convicted of murdering her high-school sweetheart, Matthew Seivert, 19. Carroll was 17 at the time. The two had met four years earlier, at a junior-high orientation. Carroll fell in love instantly. “He was my everything, you know?” she told me. Seivert gave her the kind of attention and stability she lacked at home, where life was chaotic. But Carroll’s father forbade the relationship, so the two had to meet furtively, often late at night in Sacramento’s Tahoe Park, a midpoint between their homes. The romance lasted for several years, until Carroll went to live with her mother in Southern California. Seivert’s mother, Stepheny Milo, told me that when her son came home after saying goodbye to Nicole, “he cried and cried, and my heart was just breaking for him. He just—he really, really, really loved her.”
Around the time Carroll moved away, she struck up a relationship with John Lam, another classmate. Lam, 17, was a good student, but by his own admission he had also committed a string of crimes, including burglary, assault, and selling drugs. Lam would later say he knew that Seivert was Carroll’s “first choice,” and it filled him with jealousy.
Carroll kept in touch with Seivert and Lam from Southern California. On December 23, 2003, she returned to Sacramento for the holidays. That night, Lam drove her to the mall to buy last-minute presents. Carroll called Seivert from his car. When she told him that her father still refused to let her see him, Seivert called her father—who is half-Asian—a racial slur. Carroll, shocked and hurt, repeated what Seivert said to Lam, who is of Asian descent. According to court documents, Carroll said she wanted Seivert beaten up. (When I asked Carroll what happened that night, she offered a version of events in which she was more equivocal: Lam, she said, asked her if she wanted him to beat Seivert up. She replied, “Yeah, I don’t care.”)
Lam began talking to friends, all of them also of Asian descent; he knew they would be outraged by Carroll’s story of “a white guy who’s making racist remarks against Asians.” Late in the evening, Carroll called Seivert back. They arranged to meet a few hours later in their usual spot at Tahoe Park.
Seivert had to beg his mother to lend him her car. By now, it was 12:30 a.m. on Christmas Eve. Milo had just finished making fudge, her holiday tradition. “When I said no, he said, ‘I will walk.’ It was raining. I tried to bribe him to stay. I said, ‘If you don’t go, you can open your gifts now,’” Milo recalled. “I’ll be back before you wash those dishes,” Seivert promised. Milo relented.
When Seivert arrived at Tahoe Park, Carroll was waiting on a bench. Seivert tried to put his arms around her, “but I was still angry with him. I thought he was just trying to pacify me. I pushed him away,” Carroll told me. Lam and 11 friends—who had driven in three separate cars—waited to make their move. After a few minutes, Seivert walked to his mother’s Toyota and tried to drive away. But Lam and his crew boxed Seivert in with two of their vehicles. One of Lam’s friends, Hung Thieu Ly, got out of his car, pulled out a gun, and fired multiple times into Seivert’s car, striking him in the head and chest and killing him.
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Ly, Lam, and two others, Jimmy Chi Cooc and John Dich, were charged with the first-degree murder of Seivert. So was Carroll. The district attorney acknowledged that Ly was the shooter but argued that all of the defendants had intended to ambush and beat Seivert, and that his death was the natural and probable consequence of this plot. (The other members of Lam’s crew were granted immunity in exchange for their testimony.)
Carroll did not testify at trial. Her lawyer argued that there was no evidence she wanted to kill Seivert or cause him serious injury. “What happened was things simply got out of hand out there,” the lawyer said in her closing statement. When I spoke with Carroll, she insisted that this was true. But the prosecutor maintained that Carroll bore the ultimate responsibility for Seivert’s death. “I submit to you Nicole Carroll is the whole reason Matthew Seivert is dead,” she argued in her final remarks to the jury. “Without Nicole Carroll, Matthew Seivert can’t be lured to Tahoe Park for these other individuals to be lying in wait for him to arrive, to be assaulted and ultimately killed. This is Nicole Carroll at the top of the pyramid, not some innocent child.” The jury convicted Carroll and her four co-defendants.
At the sentencing, Milo expressed her devastation at the loss of her only child. “Matthew was my life,” she said, addressing the defendants. “You took my life.” She continued, “When you think of that night, and you will, I hope it rots your brains like acid. I hope you feel the pain some way. I hope your days are filled with fright and pain.” The judge gave Ly life in prison without the possibility of parole. Lam, Cooc, and Carroll got 26 years to life. Dich got 25 years to life.
Last summer, I visited Milo in Sacramento. Nearly 17 years after her son’s death, her anger had not abated. She told me she relives her last moments with him every single night as she lies in bed, wishing that somehow she could have prevailed upon him to stay home that night. “I think I am surviving because I am mad,” she said. “You hear every day [that] you have to forgive, and I understand that, because it is about being set free, but maybe I am not supposed to be set free.” She wants Carroll to serve every day of her sentence.
Carroll herself told me that she deserves the full force of Milo’s condemnation. “What could I say? If it wasn’t for me—I was the one meeting up with him.” She broke off, crying. Lam, however, disagreed. In 2019, he told the parole board that he was the one to blame for Seivert’s death, stating, “I’m even more responsible than the shooter.” He had given Ly the gun months earlier, and, he told the board, his actions on the night of the murder were intended to prove to Nicole that “I was worthy of her.”
Morgan Gire, who until recently headed up the unit in the Sacramento DA’s office in charge of reviewing S.B. 1437 petitions, declined to comment on Carroll’s case specifically. But he told me that situations like hers were “tricky.” “Is holding them accountable for what they set in motion reasonable? That argument has gone on for 200 years,” he said. “The real question is the degree of her free will and amount of influence this guy was exerting over her. Are some of these women making poor decisions, or are they just being cold and callous and honestly don’t care if the person lives or dies?”
What is just in this case may be impossible to say with certainty. But it’s worth noting that Carroll is the only defendant still serving out her original sentence for Seivert’s murder. In 2017, Cooc and Dich succeeded in having their convictions reduced to second-degree murder because of their lesser culpability. They are both now free. In 2018, then–Governor Jerry Brown reduced Lam’s sentence by 10 years, praising his exemplary record while incarcerated. (Lam’s sister is married to Anthony Rendon, the speaker of the California State Assembly; according to CalMatters, he personally delivered the commutation petition to Brown.) Lam was released last October. Brown even commuted Ly’s sentence; he became eligible for parole in April 2020. Carroll, too, had filed a commutation petition. Brown took no action on it.
Soon after S.B. 1437 went into effect, Carroll’s lawyer, Juliana Drous, who also represented Anissa Jordan, filed a petition in the Sacramento County Superior Court arguing for Carroll’s immediate release. What followed was more than a year of limbo, as Drous unsuccessfully opposed repeated motions by prosecutors to delay the proceedings while the battle over the law played out in appellate courts.
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On January 27, 2020, more than a year after the signing of S.B. 1437, Sacramento County Superior Court Judge Donald Currier finally issued an order setting a resentencing date for Carroll. Nearly six months later—after further delays following the shutdown of the court system due to the coronavirus pandemic—Drous and the prosecutor, Stefanie Mahaffey, made their arguments as the judge listened behind a plexiglass barrier. From prison, Carroll watched by videoconference, the lower half of her face obscured by a mask.
Mahaffey acknowledged that S.B. 1437 had eliminated the “natural and probable consequences” rule. She argued, however, that it didn’t matter. Carroll, she said, had intended for Seivert to be brutally, perhaps fatally, attacked—she had “lain in wait with implied malice,” to use the term of art in California law. Drous countered that there was no evidence that Carroll had harbored such malicious intent—rather, the jury had relied on the “natural and probable consequences” rule to convict her. With that rule now null and void, Carroll ought to go free.
Judge Currier listened intently throughout the arguments, his face expressionless. At the end of the proceedings, he told the parties that he would issue a written decision within weeks.
I am a criminal-defense attorney who has seen too many of my clients go to prison for lengthy terms that seemed draconian to me. The American criminal-justice system is inclined toward harsh punishments that can rob people of their freedom because their lives are reduced to a single terrible decision. Nicole Carroll has already paid a steep price for her role in Matthew Seivert’s murder: She has now spent nearly half her life in prison. The reformers who drafted S.B. 1437 believe offenders like her deserve to be released—that a series of poor choices made by a troubled girl should not mean that she should be incarcerated for the rest of her life.
I am also a single mother with my own son. Now when I consider the rationale behind the felony-murder doctrine, I think back to my conversation with Stepheny Milo. “People say, ‘Everyone deserves a second chance,’” she told me. “Where is my son’s second chance?” The victim’s mother in Anissa Jordan’s case also lost her only son. In a letter to the court, she wrote, “I have to manage to stay invisibly ok to onlookers but deep down in my soul I just scream with pain and absence of mine only son. Tell me, how does one really deal with the loss of a child?”
For the moment, at least, the legal landscape in California reflects the complexity of the felony-murder debate. The question of S.B. 1437’s validity seems settled—no appellate court has adopted prosecutors’ arguments against it, and the state supreme court seems unlikely to weigh in. What is less clear, however, is how courts should decide cases such as Carroll’s, when prosecutors don’t challenge S.B. 1437 but nevertheless find a way to convince a judge that the defendant ought to remain in prison anyway. The outcomes vary case by case, determined by the underlying facts, the skill and tenacity of the lawyers on both sides, and the philosophies of the judges deciding them.
In August, Judge Currier issued an opinion adopting the prosecutor’s reasoning and denying Carroll relief. “At the hearing, it became clear, beyond a reasonable doubt, that defendant Carroll was aware of the possibility that the victim would die in the assault. She was the instigator of the plan, she lured the victim to the scene of the crime, she concealed her purpose, the others were hidden initially and waited for opportunity and a position of advantage, then made their attack,” he wrote.
Drous has filed an appeal and says she is cautiously optimistic about Carroll’s chances. Michelle Peterson, a veteran appellate attorney who has won several S.B. 1437 appeals, agrees. “There’s no evidence this teenaged girl was consciously disregarding the possibility that Lam’s friends were so violent that one would pull out a gun and kill the victim—there’s no evidence it ever occurred to her,” she says. The Attorney General has taken the opposite position. In a brief filed on February 2, the state argued that Carroll was an integral part of the planning and execution of the fatal attack. As she waits for the court to rule, Carroll remains in prison.
This article is part of our project “The Cycle,” which is supported by a grant from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.
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