Massachusetts is one of 48 states where it’s possible to be sent to prison for your entire life without killing someone with your own hands. That can happen if convicted on a “felony murder” charge for participating in a violent crime like armed robbery or kidnapping that results in death, even if another participant in the joint venture does the killing.
Like other harsh sentences in a racially unfair criminal justice system, in this state and many others, the evidence available indicates life without parole lands more often on Black offenders and others of color.
That’s the conclusion of a report released last month by The Sentencing Project, a leading advocate for criminal justice reform based in Washington, D.C. The report, titled “Felony Murder: An On-Ramp for Extreme Sentencing,” appropriately calls for change in laws that do not make the punishment fit the crime and ignore the traditional requirement, in a murder case, to prove the intent to kill.
As the Banner reported in the August 6 issue, 82% of those serving life without parole in Massachusetts for felony murder are people of color, and 59% of them are Black, according to the Boston University Center for Antiracist Research.
By comparison, 33% of people facing first-degree murder charges in the state are Black. Currently at least 108 prisoners are serving mandatory life without parole sentences.
National data on felony murder sentences by race are not available but other jurisdictions show a similar pattern of disproportionate impact.
In Pennsylvania, for instance, 80% of individuals imprisoned for felony murder in 2020 were of color and 70% were African American. In Cook County, Illinois, which includes Chicago, 80% were Black between 2010 and 2020. In the Minnesota counties where Minneapolis and St. Paul are located, 80% were of color from 2012 to 2018. Statewide in Minnesota, 54% were Black and another 10% were Native American in 2021.
The three authors of The Sentencing Project report were unequivocal in what they see as the cause of such disparities.
“Bias and inequities that exist both within and beyond the criminal legal system drive these racial disparities,” they conclude. “Deeply concerning racial disparities in prosecutors’ use of discretion — in which homicides to prosecute as felony murder and how many people to charge as co-defendants — directly disadvantages people of color.”
Outside the criminal justice system, the report observes, “Structural racism also drives the overrepresentation of people of color among felony murder convictions in that African Americans are more likely to live in concentrated urban poverty, producing higher rates of violent crime among people who live there.”
One shortcoming of the report is that it doesn’t consider the possibility of any race-neutral factors might account for some of the overrepresentation. It is plausible that felony murder charges are more often brought against Black defendants because a greater proportion of killings in urban areas stem from gang violence involving more than one perpetrator. Almost a third of the prisoners serving life without parole in Massachusetts were 18 to 20 — a prime age range for gang membership — at the time of the crime, according to the Committee for Public Counsel Services.
That possibility merits further study although it’s doubtful that that factor would be behind all of the disproportionate sentencing, given the known impact of structural racism on the daily lives of African Americans.
The Supreme Judicial Court order in Commonwealth v. Brown appeared to raise the bar for convicting accomplices in felony murder cases, holding that malice had to be proven. Timothy Brown had supplied a gun and hoodies to men who were involved in an attempted armed robbery and home invasion in Lowell, but he was not present at the scene of the crime.
But one part of the 2017 decision only requires that prosecutors find intent to commit a crime that a reasonable person should know might result in death, such as an armed robbery.
State Sen. Liz Miranda and state Rep. Russell Holmes have filed bills that would eliminate life without parole as a sentence for secondary participants in a felony murder, one of The Sentencing Project’s recommendations.
Under both bills, only the “principal perpetrator who is personally and directly responsible for committing the killing” would be subjected to a first-degree murder charge carrying life without parole. An accessory could be sentenced as long as 25 years or as short as two and a half years.
Unlike the Brown decision, the change would be retroactive, covering everyone already serving life without parole.
Miranda’s bill lays out a detailed process for those prisoners to petition courts to have their murder convictions vacated and replaced with a lesser sentence, with credit for time served.
Both measures are effectively dead for the current session, with the Massachusetts Legislature scheduled to meet informally and consider uncontroversial matters for the rest of the year.
In the House, the Holmes bill was sent for further study along with other criminal justice issues. Miranda’s Senate bill was endorsed by the Judiciary Committee but has languished in another committee for nearly a year.
Some additional study of the disproportionate racial-ethnic impact of the state’s felony murder law is merited. But that research need not take too long. The Legislature should make reforming that law a priority in its two-year session beginning in January.
Ronald Mitchell
Editor and Publisher, Bay State Banner
