Excerpted From: G. Ben Cohen, Justin D. Levinson, and Koichi Hioki, Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study, 101 Denver Law Review 65 (Fall, 2023) (358 Footnotes) (Full Document)

CohenLevinsonHiokiRobbery Gone Wrong

At about 4:10 p.m., Jose Peres arrived in a local park, looking for his friends. He found a group of young men talking and singing. None of the men were armed with weapons. After three of the men left, one of the remaining men, Diego Rodrigues, suggested to the others that they should “get paid” by robbing someone. Two or three of the men muttered general agreement to rob someone. Rodrigues pointed at Catherine Thomas, who was walking on the other side of the street near the corner. Andres Hernandez said he would love to “get paid.”

Juaquin Martinez, Peres, and Hernandez crossed the street and followed Thomas for approximately one block. The rest of the group followed on the other side of the street. When the group trailing Thomas approached her, Hernandez shoved Thomas into an alley; Martinez then punched her. They were soon joined by the other two. Hernandez then carried Thomas to the center of the alley and dropped her in front of a garage located at the point where the alley joined another. The others followed, except for Emilio Sanchez, who stood outside for the entire duration of the event. Members of the group then opened her handbag and struggled over her wallet and change purse. As the group began to leave with Thomas' wallet, phone, and change purse, Hernandez said something about the woman having seen them. Martinez then said, “exactly,” turned around, walked over to Thomas, and hit her twice in the head with a short metal bar that had been laying on the ground nearby. Shortly thereafter, the group dispersed. When Thomas was found twenty minutes later, she was rushed to the hospital, but was pronounced dead.

The felony murder rule and accomplice liability doctrine, acting in concert, can render an entire group of defendants guilty of murder despite huge deficiencies in proof concerning the actus reus and mens rea of the individual group members. The simultaneous operation of the felony murder rule and accomplice liability doctrine has long been wielded by the government to induce cooperation from a group of defendants, alleviating the government's obligation to prove the individualized culpability of each defendant at trial. In many situations, the government will employ the felony murder rule and the accomplice liability doctrine together to charge the defendants as a group. In such cases, it is almost as if the government is saying: “We are not really sure which defendants are most culpable, so let's just find them all guilty of murder.” Once adopted as a legal strategy, the combined rule and doctrine provide a pathway that extends government authority exponentially. Despite decades of sharp scholarly criticism, these legal rules continue to prevail in the vast majority of American jurisdictions, and most legal commentary has avoided analyzing the operation of the two rules in concert.

While the individual doctrines themselves have been strongly criticized, somewhat surprisingly, the way that race may directly influence a prosecutors' decision to charge all members of a group using these principles, a judge's willingness to accept such charges, and a jury's inclination to convict each defendant of the moral and legal equivalent of an intentional murder has gone relatively undiscussed. In Robbery Gone Wrong, in particular, one must ask whether all of the participants are charged and convicted of felony murder, rather than robbery or accessory after the fact, because of an indifference to individualized responsibility; whether a determining factor was whether the Latino-sounding names of the men operated to influence which charges were brought in the first place (felony murder or not), as well as the way the judge and jury perceive each individual defendant in the context of the group wrongs. The national empirical study we created and employed based around the facts in Robbery Gone Wrong investigates just that question and leads to the conclusion that race and group-imposed liability have become psychologically intertwined in the accomplice liability and felony murder contexts.

The practice of combining the felony murder rule and the accomplice liability doctrine is scarcely mentioned in criminal law treatises but vastly expands the government's prosecutorial power, extended further through the expansion of group liability offenses like conspiracy, Racketeer Influenced and Corrupt Organizations (RICO) charges, and other association offenses. For instance, in the spring of 2016, the U.S. Attorney for the Southern District of New York issued an indictment of 120 people, mostly Black and Latino men in their late teens or early twenties, “allegedly responsible for more than 1,800 shots fired, resulting in eight alleged homicides.” By operation of the felony murder rule, accomplice liability doctrine, and a breadth of conspiracy allegations, a significant number of the indicted individuals faced murder charges despite not having killed or intended to kill anyone. Such charges have defined the racialized operation of the accomplice liability doctrine and felony murder rule, in a manner that disproportionately impacts Black men and other minorities in particular at remarkable rates.

Group liability has long had sordid racist overtones. From the prosecution of the “Scottsboro Boys” to the Central Park Five, concerns about assigning culpability through group liability continue to arise. The combined legal fiction of accomplice liability and felony murder presents a wild opportunity for implicit and explicit bias to thrive. While use of the felony murder rule in group crimes has long defined America's homicide landscape, the presumption of culpability is not always applied equally. In contrast to the example of the prosecution of Black and Latino defendants in the Southern District of New York, federal prosecutors in the District of Columbia charged more than 950 individuals with various crimes in connection with the deadly January 6, 2021, insurrection, when hundreds of rioters forced their way into the U.S. Capitol. A demographic assessment of those charged indicates that the participants were overwhelmingly white. A bipartisan report found that seven people died during the insurrection; however, none of the 1,171 individuals charged for their participation have been charged with felony murder. This contrast gives rise to the question of whether the combined accomplice liability doctrine and felony murder rule would survive the democratic process if it was applied equally across groups.

This Article follows longstanding research on racialbias in the criminal justice system, contextualized within a particularly dangerous--and common-- combination of doctrines. Much of the preceding work on the role of race in homicide law began with landmark analysis of capital sentencing schemes known as the “Baldus studies,” which revealed that the race of a defendant, especially in combination with the race of a victim, introduced arbitrariness into the administration of justice. Despite the findings of the Baldus studies, the United States Supreme Court rejected the challenge to the constitutionality of the death penalty. Following this line of work, scholars traced the appearance of racialbias in the prosecution, conviction, and sentencing of children to life without parole. Again, scholars hypothesized that Black children--and especially Black children accused of killing white victims--were more likely to have their case transferred to an adult criminal court, where they are prosecuted as an adult, and be found guilty of murder despite lack of evidence of a specific intent to kill. Since these studies were published, researchers have begun to investigate deeply the ways in which race can wreak havoc in the administration of justice, including empirically studying the role of implicit bias in juror memories and criminal guilt determinations, principles of punishment, and in capital cases.

Building upon decades of studies that demonstrate the deep interconnection between race and homicide law in America, this Article deploys and leverages modern research methods from the field of implicit cognition to investigate whether specific legal tools amplify the opportunity for racialbias in the criminal justice system. Section I begins by reviewing the basic historical circumstances and legal background of the felony murder rule and accomplice liability doctrine.

Section II describes how felony murder and accomplice liability have an outsized role in the operation of the American criminal legal system, and how their combination has sordid implications with respect to capital punishment and mandatory life without parole sentencing schemes. Section II goes on to explore the way race operates in the context of charging, convictions, and punishment, and posits that the combination of the accomplice liability and felony murder rules is still permitted to operate specifically because is disproportionately affects Black and Latinx communities. Data gathered from multiple sources document that the accomplice liability doctrine and felony murder rule work to worsen already long-problematic racial disparities in homicide convictions. Section II then highlights the jurisdictions that have doubled down on the combination of these doctrines and provide particularly harsh punishments--capital punishment or life without parole. In addition, while not establishing a necessary causation between the operation of these rules and mass incarceration, this Section notes the overlap between those states that have mandatory life sentences for felony murder and those states with the highest levels of incarceration.

Section III builds upon the racialized data presented in Section II by investigating the psychological basis of bias in the felony murder rule and accomplice liability doctrine. Section III explores why prosecutors, jurors, and judges may systematically take erroneous and harmful cognitive shortcuts that increase the risks of the combined accomplice liability doctrine and felony murder rule. It begins by presenting relevant existing studies on implicit racialbias, including projects that devised novel Implicit Association Tests (IAT) to test theories related to criminal law, setting the stage for the novel accomplice liability focused IAT deployed in our empirical study. It then highlights psychological research on negative stereotypes surrounding Black and Latino men, particularly those stereotypes that could drive perceivers to believe that individuals may possess heightened responsibility for aggressive actions committed by other group members. Next, it provides a psychological backdrop of the dangerous combination of entitativity and race that potentially invites a particularized type of implicit bias focused on accomplice liability into the administration of criminal justice.

Section IV details the national empirical study we conducted on a diverse sample of Americans, identifying the way in which implicit racialbias potentially infiltrates the operation of the accomplice liability doctrine and felony murder rule. The study found that: (1) participants automatically individualize white men, while automatically deindividualizing Black and Latino men; (2) compared to white defendants, mock jurors held Latino defendants more responsible for--and ascribed greater intentionality for--the same types of felony-murder style killing; and (3) 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.

Section V discusses these results in practical and constitutional contexts, and provides avenues for legislative reform, strategic litigation, and the exercise of prosecutorial discretion. The Article's conclusion calls for the elimination of the accomplice liability doctrine in combination with the felony murder rule as inexorably infected with racialbias. It is one thing to suggest that our legal system is especially draconian, and in the words of one prosecutor--if a perpetrator is “in for a dime,” they are “in for a dollar.” It is entirely different to construct a system that allows white defendants to avoid the draconian consequences of the regime but permits indifference to individualization when applied to Black and Latino defendants. Acknowledging that our legal system was draconian could invite democratic outrage and legislative correction; but creating a system that permits discretionary indifference to the relative guilt or moral culpability of minority defendants avoids democratic or legislative correction.

[. . .]

The time has long come and gone for legislatures and courts to eliminate the combined application of the felony murder rule and accomplice liability doctrine. The combined doctrines provide no opportunity to consider a defendant's limited role in an offense and threaten to create a dragnet of culpability. Our research adds to the lengthy criticism of the felony murder rule in combination with the accomplice liability doctrine by providing evidence that racialbias--implicitly or explicitly--enters the arena when they are combined. A credible legal system cannot impose the most draconian sentences based upon presumptions and imputed elements, especially where race plays a significant role in the operation of these presumptions. Repeatedly, the credibility of our legal system is tested when the accomplice liability doctrine and felony murder rule are used to prosecute Black and Latino defendants, such as the decision to prosecute one hundred and twenty mostly Black and Latino teenagers and young adults collectively for the murder of eight people, while individually determining the culpability of over eight hundred, largely older white men invading the Capitol where seven people died. Eliminating the dual felony murder and accomplice liability doctrine does not insulate a defendant from all criminal liability. Rather, it simply ensures holding the person liable for the acts that they commit and for the intent that they had, rather than imputing those elements in acts of imaginative legal speculation.

The risk that implicit bias plays a role in charging decisions and jury verdicts provides sufficient concern to warrant eliminating the doctrine. Regardless of the benefits of expedience the exercise of power offers--and in part because of them--we call for the deactivation of this 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 assess white defendants' culpability solely for their own actions, warrants limiting the combined use of the felony murder rule and accomplice liability doctrine in non-mandatory life without parole sentences.

Our research does not complete the inquiry into the use of gang prosecutions, and whether racialbias influences finding group liability in non- homicide contexts. It invites further research and inquiry into the constitutionality of group liability in those contexts. However, our findings confirm the argument made decades, even centuries ago--encumbrances on the protections of the Bill of Rights are first applied to marginalized groups. These encumbrances are expanded and still used primarily against the powerless. When implicit racialbiases predictably wreak havoc in the application of the combined accomplice liability doctrine and felony murder rule, these encumbrances undermine faith and trust in our justice system, as well as the promise that individuals are held accountable for their actions, not as a result of their group association.

Assistant Professor of Law, Akron Law School. Professor Cohen would like to thank Vicki Wu for research assistance, and Guyora Binder, Ekow Yankah, Mary Fan, Paul Litton, and Emily Hughes for their engagement with the project. Barbara O'ntBrien and the National Registry of Exonerations generously provided access to their dataset for purposes of this Article's analysis of felony murder and wrongful convictions.

Professor of Law & Culture and Jury Project Director, University of Hawai'i at Manoa, William S. Richardson School of Law. Professor Levinson would like to thank Dean Camille Nelson and Faculty Research Director & Professor Susan K. Serrano for summer research support, and Andrew Crosby, Ciara Keamo, and Nicole Lam for their wonderful research assistance. Faculty at Loyola Law School's Work-in-Progress Series provided insightful feedback.

Endowed Chair & Adjunct Associate Professor, Kyoto University Graduate School of Management.