The Unfinished Business of Felony Murder

In 2017, the Massachusetts Supreme Judicial Court abolished key aspects of its “felony murder rule,” the common law doctrine that made everyone involved in a felony that resulted in death guilty of first-degree murder—guilty even if they personally inflicted no violence and never intended to hurt anyone.

The penalty for first degree felony murder is life in prison, without possibility of parole.

The Massachusetts justices ruled that felony murder will no longer serve as an independent ground for a first-degree murder conviction.

But they did not make the ruling retroactive. A recent Boston Globe “Spotlight” report identifies peripheral actors in long-ago fatal crimes who were convicted under the old rule and are still stranded—serving life without parole sentences. (Similar situations exist in other states where felony murder reforms have taken place.)

Reviewing those sentences should be an emergency priority.

Still, although the cases the Globe’s team catalogued are the most dramatic examples of the harm done by the felony murder rule they are not the most representative.

The defendants whom the Globe lists are, in one crucial sense, outliers.

If the men featured in the Globe piece die in prison without ever having had a parole review it will be because they refused to buckle pretrial when they faced the plea-bargaining leverage that the felony murder rule granted to prosecutors.

The prosecutors wanted guilty pleas to long sentences.

Or the prosecutors wanted their testimony against others—testimony that could get the defendants, or one of their loved ones, killed.

Or the prosecutors had wanted both their testimony and a long sentence.

The “nearly two dozen” men cited in the Globe’s articles rejected the prosecutors’ deals.

The Rest of the Iceberg

But the Globe’s approach ignores the legion of people who over the years felt compelled by the felony murder rule to take the prosecutors’ deals.

Those defendants number in the hundreds—or thousands.

Confronted with the possibility of life in prison without possibility of parole, many defendants entered pleas to cut their losses as far as possible.

Some of the sentences they received were pointlessly harsh: completely out of sync with their culpability or with any measured punitive, rehabilitative or deterrent purpose.

Other defendants, unwilling to gamble their lives on a trial, coughed up testimony the prosecutors wanted.

Some of the testimony they delivered was exaggerated, or downright false. (Incentivized testimony of one kind or another is a leading contributor to wrongful convictions.)

The harm in these guilty-plea felony murder cases is not as spectacular as the damage done by a life without parole sentence, but that doesn’t mean it isn’t devastating.

Take a father or mother out of a family for an extra five years, and you can wreck three childhoods.

Take a man in his twenties out of the workforce for seven unnecessary years and you can render him unemployable. Extort a plea to an exaggerated charge, and you create a criminal history record that assigns a whole different class of citizenship.

A significant number of the targets of coercive plea leverage will not end up doing life without parole; but they will be set up for the long journey of “life on the installment plan” because of the deals they had to swallow.

Facing the Facts of the “Normal”

 The Globe’s “Spotlight” series casts a bright light on a particularly gruesome set of criminal justice outcomes.

But any bright light casts dark shadows.

The series, by providing a compelling picture of the freakish and extreme, simultaneously eclipses the logic that governs the “normal” and routine in gigantic criminal caseloads.

The fact is, the Globe’s catalogue of felony murder sentences constitutes only one tiny fraction of the universe of distended sentences and “cooperative testimony” distorted by the looming power of mandatory minimum sentences across the criminal justice system.

Publicizing the examples of the men who are still imprisoned after being found guilty at trial—and remember, less than three percent of all cases go to jury trials—under the defunct first-degree felony murder doctrine has the perverse unintended effect of obscuring the fact that the entire criminal system is saturated with examples of men and women who did not go to trial.

Rather, they buckled in the face of mandatory minimum sentences and agreed to the prosecutors’ deals.

Here’s how the grinding, every courthouse, every day, “normal” goes.

A grandmother in a housing project who cares for six grandchildren is standing on a stoop when a teenager she has known for his entire life walks up and asks her to put something in her pocket for half an hour until he comes back. She knows he is a drug dealer—everyone knows he’s a drug dealer—and she understands the package probably contains drugs.

She shrugs and takes it.

This encounter is caught on video by the police surveillance cameras. The kid is arrested six months later; the grandmother is charged as a co-conspirator. She did an overt act in furtherance of the conspiracy.

The conspiracy has lasted for half a year; the weight of drugs it retailed has been enormous; every co-conspirator is liable for the whole conspiracy.

Her 30 minutes’ assistance to the drug conspiracy leaves the grandmother vulnerable to a 50-year sentence, and she has no defense—she’s on tape. Either literally, or practically, and depending in part on whether it is a state or local prosecution, she faces what amounts to a mandatory minimum if she rolls the dice at a hopeless trial.

No one really wants Grandma to do 50 years; she has no record. But if (let’s assume) one year is the reasonable sentence, the prosecutors won’t offer that either.

The prosecutors want Grandma’s testimony, and when she does testify they don’t want her to look like the dependent recipient of a “sweetheart deal.”

Besides, the prosecutors have next week’s case to think about. They believe that they have to support a “going rate” for pleas, or they will be handcuffed when future witnesses hold out for Grandma’s more lenient deal.

The prosecutors may give Grandma a sort-of a break, but not much of one. The deal won’t be two years; it will be (let’s say) seven years.

It’s all very rational. Add these instances up, and what you get is mass incarceration.

This isn’t a simple question of sentences getting longer over the years. In a sense, the years-per-conviction price hasn’t increased that dramatically.

But the promiscuous use of the plea leverage mobilized in the felony murder cases (and the drug scenario) has multiplied the number of felony charges prosecutors seek and felony convictions they obtain.

The easier it is to leverage a felony guilty plea, the more inviting it seems to bring the next felony case.

But, once you have a caseload, you have to push the leverage a little harder to clear the dockets. Things spiral.

We have fewer crimes, but more prisoners.

We need a functioning process not only for reviewing the cases of the “nearly two dozen” convicted first-degree felony murder prisoners cited by the Globe, but also for examining myriad sentences that were warped by the power imbalance created by simply charging felony murder.

What the Globe series actually reveals, when you look beneath its startling surface, is the importance of a general, genuine, independent, second-look sentencing analysis process.

The Globe’s editorial board, in summarizing the investigative team’s findings, looked with favor on pending legislation that would provide for sentence reviews in the life without parole cases if the prosecutors ask for it.

The prosecutors, according to the editorial board, should be “partners” in the effort.

But the prosecutors—who mobilized felony murder’s mandatory sentences to force pleas and generate testimony—are the last people who should be the gatekeepers for this crucial review process.

Where the felony murder rule produced disproportionate sentences and shaded testimonies that in retrospect seem grotesque to us, it was because those outcomes were what the trial level prosecutors wanted.

And prosecutors know today that they will want to mobilize the same machinery in new cases tomorrow.

The judges, who were delighted to see their docket lists winnowed by the application of plea pressure, are no better situated to re-adjust the sentences that the “normal” processes generated.

They too will have cases to dispose of tomorrow.

To avoid taxing their own resources by conducting jury trials to dispose of these cases, the prosecutors and judges deployed a “trial tax” imposed on defendants seeking trials, in order to motivate guilty pleas.

We need the review process not only for the defendants who were tried and then convicted and received mandatory life without possibility of parole sentences, but also for the defendants whom the logic of the plea process ground down in cases other than felony murders.

This second-look review effort has to be sealed off from the protagonists in the original bargaining process. It could provide, through community (and crime survivor community) participation, the possibility of a degree of restorative justice.

Too Much Justice

Winning support for these re-examinations won’t be easy.

There will be many who fear—just as the Massachusetts SJC seemed to fear when it refused to make its felony murder ruling retroactive—that this new approach threatens too many reviews, of too many sentences, requiring too many changes in release dates.

Officials who could be assigned to the second look role will fear it may call on them to take responsibility for releasing too many prisoners—after all, maybe one of them could, like Willie Horton, doom a political career.

(The president and the governors of many states have robust pardon powers; they seldom use them in the post-Horton era.)

James Doyle

But, in the end, all that the practice of reviewing these sentences really threatens us with is too much justice.

We’re paying a steep price for too little justice now.

Too much justice is something we should try to accept.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He enjoys hearing from readers.