Law Reviews — Racial Bias in Felony Murder and Accomplice Liability

A forthcoming article in the Denver Law Review discusses two theories of homicide law, the felony murder rule and accomplice liability, that create group liability for the actions of an individual. The article, written by Professors G. Ben Cohen (pictured), Justin D. Levinson, and Koichi Hioki states that “Research suggests that the administration of accomplice liability [and] felony murder doctrines disproportionately impact Black and minority defendants,” causing minority defendants to be sentenced for first degree murders they did not personally commit at greater rates than white defendants. The researchers’ explanation for this disparity is that “Americans automatically individualize white men, yet automatically perceive Black and Latino men as group members.”

According to the article, “Most modern felony statutes provide that a death that results from the commission of a specifically listed felony … constitutes first-degree murder for which the maximum penalty is death or life imprisonment.” Accomplice liability “impute[s] responsibility to one person for the actions of another.” Between the two, if a group of defendants commits a felony and a person dies during its commission, all members of the group could be charged with capital murder in certain states.

The authors conducted a national empirical study on a diverse sample of Americans, identifying the way in which implicit racial bias potentially infiltrates the operation of accomplice liability and the felony murder rule. In addition to identifying the racial disparities in concluding that a defendant acted individually, mentioned above, the study found that: “mock jurors held Latino defendants more responsible for – and ascribed greater intentionality for – the same felony-murder style killing; and… mock jurors’ memories of case facts actually became sharpened when reading about Latino defendants, demonstrating that aggressive stereotypes of certain groups can pave the way for heightened criminal responsibility.”

The article concludes that “The risk that implicit bias plays a role in charging decisions and jury verdicts provides sufficient concern to warrant elimination of the doctrine. … The risk that jurors assessing liability for these types of offenses will assume group responsibility for the actions of Black and Latino defendants but ensure that white defendants are assessed culpability solely for their own actions, warrants limitation of the use even in non- mandatory life without parole sentences.”