One of every six people serving time in a Massachusetts state prison — some 1,012 men and women — is doing so with no hope of parole. Some were found guilty of pulling the trigger in a murder, delivering the fatal blow, actually taking a life, which in turn sent them to prison for life.
But a number of them never wielded a weapon. Some weren’t even at the scene. However, under the state’s old doctrine of joint venture felony murder, they were legally just as culpable as the person who did pull the trigger.
The doctrine was narrowed five years ago by the state’s Supreme Judicial Court. But the court did not make its decision retroactive. It did not demand a look back at those injustices of the past.
In a case now pending before the SJC, the court could still revisit the issue of retroactivity. Or the Massachusetts Legislature could join a small number of states that allow prosecutors to take that legal look back on a case-by-case basis. Real justice surely demands a better approach than the current one that tells some lifers, well, too bad.
The Globe Spotlight Team was able to identify 23 individuals caught in the legal time warp created by the court’s 2017 decision. All are men, all but one Black or Hispanic. In fact, however, there’s no telling how many more men and women might fit that category. And except for their families, a small band of lawyers willing to plead their cases, and a handful of lawmakers interested in reforming the state’s prison system, few seem to care.
William Allen, whose sentence was recently commuted by Governor Charlie Baker and who is due Thursday for a Parole Board hearing, was among the lucky ones — that is, if you consider someone who has served 27 years in prison for a murder that took place when he was in another room lucky. The actual killer pleaded guilty to second-degree murder and has been out of prison for more than a decade.
Joseph Jabir Pope, now nearly 70, has spent the last 37 years in prison in connection with the 1984 armed robbery of the brothers Efrain and Bienvenido DeJesus. Efrain was killed in the robbery while Pope says he was on another floor with Bienvenido. Pope has long maintained he was there to buy drugs, not to rob the brothers. The court heard the case earlier this month, and Pope awaits a ruling likely to come this summer.
In the 2017 decision, then-Chief Justice Ralph Gants wrote in a concurring opinion that the felony murder rule had caused “convictions of murder in the first degree that are not consonant with justice.”
But the court shied away from doing what it did in 2013 when it followed the US Supreme Court’s lead and ordered a look back at all cases involving juveniles tried as adults and convicted of first-degree murder without the possibility of parole. As a result of that decision, 63 incarcerated people became parole-eligible and 18 were freed in the first five years after the ruling.
Of course, a more proactive administration than that of Governor Charlie Baker could also use its commutation powers to address issues of injustice as it did in the Allen case. But Allen is one of only two commutations granted during the Baker administration, while more than 200 petitions remain on file.
Of the 21 states that, prior to 2017, had imposed automatic sentences of life without parole under the felony murder doctrine, about a dozen have attempted reforms. Some of them have gone further than Massachusetts by also revisiting already settled cases.
California passed a sweeping felony murder reform law that went into effect in 2019 and included a provision that made some 800 prisoners immediately eligible for parole. Other states, like Illinois, Oregon, and Washington, have adopted laws giving prosecutors the ability to revisit old cases, known as Prosecutor-Initiated Resentencing.
One such bill is pending here in Massachusetts, where it recently got a temporary reprieve from this year’s legislative scrap heap in the joint Judiciary Committee.
Back in 2017, the state’s highest court recognized the injustice created by a doctrine that punished too many people too severely for crimes in which they were often bit players. But the court left behind the unfinished business of how to remedy those wrongs in a more systematic way than the ancient and creaky commutation process will allow.
Allowing — and more to the point, encouraging — prosecutors, county by county, to become partners in that process would help right that obvious wrong.
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