In Massachusetts, 82% of those serving life without parole for first-degree felony murder are people of color; 59% of them are Black.

A July report from The Sentencing Project, a national advocacy nonprofit, explores how felony murder laws serve as an on ramp for extreme sentencing practices in America.

The felony murder designation states that if a person dies during a felony, such as a robbery, any participant in that crime can be charged with murder — even if they didn’t directly carry out the killing. Boston University law lecturer and clinical director Caitlin Glass said such laws “punish people really severely for things that they didn’t intend and didn’t do.”

In Massachusetts, 82% of those serving life without parole (LWOP) for first-degree felony murder are people of color; 59% of them are Black. In comparison, 33% of people facing first-degree murder charges are Black.

Glass addressed this racial disparity, explaining that the felony murder doctrine is “especially susceptible” to racial biases in charging and sentencing for crimes. Felony murder lowers the burden of proof for prosecutors to charge for murder, granting them “broad discretion.”

“The amount of punishment that you receive should be proportional to the harm that you caused and the harm that you intended to cause. Felony murder just leapfrogs over that,” said Nazgol Ghandnoosh, The Sentencing Project’s director of research.

An amicus brief from the Boston University Center for Antiracist Research described that juries are more likely to view Black and Latino defendants as members of a group, making it easier to infer guilt based on mere association. Meanwhile, white defendants are more likely to be regarded as individuals with distinct degrees of culpability. This “de-individuation” makes Black defendants particularly vulnerable to racialized decisions concerning felony murder laws, according to the brief.

The Sentencing Project report notes that women enduring domestic violence are frequently coerced or intimidated into participating in felonies by abusive partners, only to be held equally responsible for violence that may take place. The report references a survey study by the California Coalition for Women Prisoners, which found the majority of the coalition’s members convicted of felony murder were navigating intimate partner violence at the time of their offenses, and were “criminalized for acts of survival.”

“For two people to be held equally responsible when one had a history of abusing the other [is] intuitively absurd,” said Glass. She noted that in these cases, an accomplice’s role is often inflated with respect to “their actions and intentions.”

In addition, felony murder laws sometimes punish accomplices even more severely than the people directly causing death. Glass explained that this is possible through plea bargaining, where the primary perpetrator often understands that they are culpable and takes plea deals for lesser charges.

In contrast, accomplices, believing that they are innocent because they didn’t kill anybody, frequently go to trial. They are then met with severe sentences like life without parole, a fate which has awaited lookout or getaway drivers in robberies, while shooters may walk free.

The law also ignores the “cognitive vulnerabilities” of emerging adults, defined as ages 18 to 25. In Massachusetts, 30% of those serving LWOP for felony murder were between 18 and 20 at the time of their offense.

“Young people are especially inhibited when it comes to foreseeing the consequences of their actions,” said Glass. “That is just the essential nature of the developing brain.”

In theory, the 2017 Commonwealth v. Brown decision created higher standards for felony murder cases by requiring the finding of “malice.”

However, Ghandnoosh considers the malice requirement “symbolic” and said such reforms have “little bite.”

The Brown decision has a loophole: “third-prong malice.” This only requires that prosecutors find intent to commit an act that a reasonable person should know may result in death. For example, if a defendant participates in an armed felony, the jury can infer malice from the circumstances alone. This low threshold effectively bypasses the Brown decision.

Furthermore, the Brown decision was not made retroactive.

At least 108 people in Massachusetts continue to serve mandatory LWOP sentences.

“It seems absolutely absurd that people are going to die in prison for something that they couldn’t even receive if they were charged in the same way today,” said Glass.

In the 1990s, tough-on-crime rhetoric was commonplace across the country, demanding harsh sentencing practices to deter crimes.

However, research indicates that felony murder laws have no significant crime deterrent impact.

Most accomplices do not anticipate fatal outcomes and are unaware of felony murder laws until they are facing charges. In The Sentencing Project report, criminologist Daniel Nagin explained, “increases in already long prison sentences, say from 20 years to life, do not have material deterrent effects on crime.”

Advocates also point out that it’s extremely costly to continue incarcerating older populations in their 60s and 70s, long after they’ve aged beyond what the system considers crime-prone years.

Glass argued that keeping people at such advanced ages behind bars for felony murder convictions cannot be justified from a “public safety perspective.” The common critique is that the process diverts taxpayer funds from vital public safety investments, such as drug treatment and mental health care.

Currently, a handful of bills have been proposed to reform felony murder laws in the Commonwealth. The Massachusetts Survivors Act would allow survivors of abuse to petition for lower sentences if they can prove their offense was related to a history of abuse or sexual assault.

In addition, the Joint Venture Bill would make accomplice liability a separate charge from direct-liability murder, with a sentencing range maxing out at 25 years. This allows judges more opportunity to distinguish between principal perpetrators and accomplices.

The fact remains the United States is a global outlier when it comes to felony murder laws. Ghandnoosh reflected on the shock members of the public often feel when confronted with the reality of these sentencing practices.

“Most people don’t know about felony murder laws until it affects them, or until they read a really egregious story about it.”