State’s highest court holds the fate of 108 people in its hands

In the summer of 2014 police say Rashad A. Shepherd, 25, was one of three people who entered the Lynn apartment of a small-time drug dealer. A single gunshot killed the dealer that August night — that much is certain. Shepherd and Terrance Tyler were charged with several offenses, including felony murder. The third person, a woman, became a cooperating witness in exchange for a reduced sentence.

A jury acquitted Shepherd of armed robbery and armed home invasion. Still, the same jury that believed he didn’t hold the gun or pull the trigger also convicted him of felony murder.

How can that be? The seeming discrepancy arises from the expansive nature of a felony-murder charge at the time. A defendant could be convicted of felony murder for involvement in a crime of violence in which someone dies. In Shepherd’s case, the predicate crime was unarmed robbery.

And for that, he could be condemned to spend the rest of his days in prison.

And that’s where Shepherd remains today — even though in 2017 a ruling by the Supreme Judicial Court created a very different standard for felony murder, requiring that those charged had to have an intent to kill or to cause grave bodily harm in order to merit a life without parole sentence. Shepherd had the misfortune to be sentenced before then.

So, too, did another 107 men and women currently all serving life sentences without the prospect of parole in the state’s prison system — all sentenced under the pre-2017 definition of felony murder.

This week, Shepherd’s lawyer, Claudia Leis Bolgen, backed up by several amicus (“friend of the court”) briefs, argued on behalf of all of them, urging the state’s highest court to offer “blanket parole eligibility.”

“Fairness and justice is my argument,” she told the court.

Of those 108 serving life without parole, 82 percent are people of color — 59 percent Black. As the amicus brief filed by Boston University’s Center for Anti-Racist Research and a half dozen other advocacy groups added, “That stark racial disparity exceeds the racial disparity among people serving life without parole” for first-degree murder — 56 percent are people of color (33 percent Black) and 44 percent white. It also exceeds the racial disparity of the state’s prison population, where 59 percent are people of color (30 percent Black).

“Increasingly, scholars have also recognized the felony-murder doctrine as constitutionally infirm because of its susceptibility to racial bias and its imposition of disproportionately severe punishments,” the brief noted, adding that the whole notion of felony-murder prosecutions has been abolished in every other common-law nation as well as Kentucky and Hawaii.

The justices seemed unimpressed with the raw numbers offered up during oral argument by Bolgen with several voicing concerns, including Justice Dalila Argaez Wendlandt asking, “What’s your control group?” and Justice Scott Kafker asking for a statistical analysis “to make sure we’re comparing apples to apples.”

That kind of data was simply unavailable here, Bolgen told the court.

There is no exhaustive study, although the study undertaken on the court’s behalf by Harvard Law School in 2020 did conclude “that one factor — racial and ethnic differences in the type and severity of initial charge — accounts for over 70 percent of the disparities in sentence length.”

But even those researchers were stymied by a lack of available data, some of that attributed to the Trial Court’s antiquated record keeping systems.

What did seem to interest the justices was the number of inmates (among those 108) who committed their crimes as 18 to 20 year olds — 32 as it turns out. In a separate proceeding, the court has yet to announce a decision in two cases challenging the constitutionality of mandatory life without parole sentences for those convicted of first-degree murder who were under age 21 at the time of the crime. Some 200 of the state’s 1,000 inmates serving life sentences fall into that category.

The court was asked to revisit the issue of the sentencing of late adolescents in the wake of recent science on brain development that found the age group more prone to high-risk behavior and peer pressure, but also more amenable to rehabilitation.

The cases were heard by the SJC in February. In recent years only the high court’s 2003 gay marriage ruling has taken this long to decide.

In those cases, as in the Shepherd case, only a mandatory look-back by the Parole Board — which would still have to hear cases on an individual basis — can fix a situation that cries out for a new approach. The court could make that more straightforward by ordering blanket parole eligibility. Not everyone convicted before the 2017 shift will deserve a change in their sentence — but they all deserve the chance to make their case.

Right now Governor Maura Healey’s new clemency guidelines, including new rules around the commutation of life without parole sentences, provide the only other viable option — absent court action. The clemency guidelines acknowledge past racial disparities in sentencing and “intervening changes in the law.”

But it’s the SJC that (rightly) led the state to limit the use of felony-murder charges to only the most serious instances where all parties had a murderous intent. But in 2017 it left some people behind — 108 people. They are still waiting for a hearing.

The cases were heard by the SJC in February. In recent years only the high court’s 2003 gay marriage ruling has taken this long to decide.