Excerpted From: Perry Moriearty, Kat Albrecht and Caitlin Glass, Race, Racial Bias, and Imputed Liability Murder, 51 Fordham Urban Law Journal 675 (March, 2024) (330 Footnotes) (Full Document)

MorieartyAlbrechtGlassFrida was 16 years old when she, 18-year-old Jade, Frida's 23-year-old boyfriend, and a 23-year-old friend went to an apartment building in North Minneapolis to rob a man that Jade had met on a bus. “In my 16-year-old head, I'm thinking it's just going to be a robbery. No one's going to get hurt,” Frida says, looking back on the events of November 25, 2008. Frida and Jade were sitting outside in a car when Frida's boyfriend and his friend emerged, announcing that they had “slammed” the victim. Frida was stunned. Minneapolis police arrested Frida and Jade the following day, but it took them another two weeks to find their co-defendants.

Frida was charged with aiding and abetting second-degree intentional murder. Three weeks later, she was indicted for aiding and abetting first- degree felony murder. Certified as an adult and facing a mandatory life sentence, “[t]he only way out was to take a plea,” she recalls. The first offer was for 35 years and a plea to aiding and abetting second-degree murder. “I [just] started bawling,” Frida says. She rejected it. Then came an offer for 25 years and finally ten years in exchange for her testimony against her boyfriend. Frida did the math. “I'll get out when I'm in my 20s, I can still make something of myself,” she recalls thinking. She took the deal. Her co-defendants eventually entered pleas to the same offense. Jade was sentenced to 15 years, and the men were sentenced to 25 and 36 years. Though she did not intend, anticipate, cause, or actively participate in the homicide itself, 16-year-old Frida entered a Minnesota women's prison in 2009 as a convicted murderer.

Frida's story is tragically familiar. Though courts and commentators have long maintained that criminal liability should be limited to those who are “blameworthy in mind,” the “felony murder doctrine” allows the State to hold people like Frida liable for murder simply because they had some nexus to an underlying felony that resulted in death. In all but ten states, their mental state or “mens rea” is irrelevant. Felony murder has been abolished in every other common law country. Yet, in the U.S., 48 states, the District of Columbia, and the federal government still have it in some form, and 21 of them permit the death penalty for those who are convicted. The “accomplice liability” doctrine eschews yet another criminal legal norm: it allows the State to hold a defendant criminally liable not for their own conduct, but for the conduct of another person. In practical terms, this means that a defendant who was nowhere near a homicide can be charged with murder.

Because the felony murder and accomplice liability murder doctrines permit the State to impute to defendants what are arguably the most salient measures of criminal liability--mens rea and actus reus Article refers to them as “imputed liability murder” doctrines. Even among the most widely maligned elements of American crime and punishment, these doctrines stand out. Courts and legal scholars have called the felony murder doctrine everything from “injudicious and unprincipled” to “monstrous,” and its moral rectitude has been the subject of numerous publications. Though less controversial, accomplice liability too has garnered criticism for conferring guilt by association-- something that scholars have called a fundamental “deviat[ion] from the normal rules of criminal liability.”

What has received far less attention from legal scholars, however, are the people who bear the brunt of these doctrines. This Article begins to fill this critical gap. A descriptive analysis of all first- and second-degree murder charges and convictions in the state of Minnesota between 2010 and 2019 reveals that far from fringe subtypes of homicide, felony murder, accomplice liability murder, or both were charged in over 70% of murder cases. It also reveals that, like Frida and her three co-defendants, 57% of those charged with imputed liability murder were Black--in a state where Black people make up just 7.6% of the population. Finally, the study shows that Black defendants were significantly more likely to be charged with imputed liability murder than they were with what we call “direct liability murder.”

The question is, why? The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we argue. A substantial body of empirical, theoretical, sociological, and psychological research suggests that imputed liability murder prosecutions are especially susceptible to the influence of racial bias. By definition, the felony murder and accomplice liability murder doctrines substantially reduce the State's burden of proof. When prosecutors pursue a conviction for direct liability murder, they must prove that the defendant both committed an act that caused death and acted with some form of intent or knowledge. When they charge felony murder in most jurisdictions, however, prosecutors are relieved of the burden of having to prove an intent to kill. The accomplice liability murder doctrine, in turn, relieves them of having to prove an act that caused death. When the doctrines are used in combination, as they were in Frida's case, the State's burden can become almost negligible. Because imputed liability murder charges are constrained by fewer legal elements, prosecutors need less evidence to pursue and sustain them. The net effect is that charging decisions in imputed liability murder cases are inherently more normative, more subjective, and more likely to be influenced by extra-legal factors.

Imputed liability murder doctrines also allow prosecutors to cast a wide net around almost any homicide. Frida's case is illustrative. While there was probable cause to charge Frida's boyfriend with direct liability murder, since he shot the victim, charging the other three co-defendants with murder would have been impossible without imputed liability murder doctrines. The accomplice liability doctrine enabled prosecutors to impute the “act” of murder to the male co-defendant, who witnessed the shooting, and to Frida and Jade, who sat in the car, simply by alleging that they intended to aid the shooter. The felony murder doctrine, in turn, allowed prosecutors to impute an “intent to kill” to all four defendants based solely on their participation in the underlying robbery. In combination, the doctrines allowed prosecutors to charge the entire group with murder based not on their subjective mental states or individual roles in the homicide, but on their mere association with one another.

These structural dynamics have significant cognitive implications. When prosecutors are invited to make normative assessments of a defendant's culpability with less law and fewer facts, studies on criminal legal decisionmaking show that they are more likely to base decisions on highly subjective, extra-legal proxies. Social psychologists have repeatedly shown that these proxies often include pernicious racial stereotypes linking Black defendants with “criminality” and “dangerousness,” which, in turn, increases the likelihood that prosecutors will--consciously and unconsciously-- treat Black defendants more punitively.

The doctrines' net-widening effect may also trigger an additional form of racial bias. A recent study of implicit racial bias in the use of the accomplice liability and felony murder doctrines found that participants automatically perceive White men as “individuals” and Black and Hispanic/Latino men as “group members.” They concluded that these biases may lead decisionmakers to “indifferently impute guilt” to Black and Hispanic/Latinx defendants.

Finally, it is not just the structural dynamics of imputed liability murder doctrines that exacerbate racial bias--it is also the racial stereotypicality of the crimes themselves. Research on race-crime congruency has repeatedly shown that Black people are disproportionately associated with the crimes of robbery and murder, which can affect the degree to which the crimes are attributed to Black defendants. This suggests that felony murder and accomplice liability murder may have become so cognitively and normatively associated with Black defendants that simply mitigating their structural laxity may not be enough to reduce their racially disproportionate enforcement.

This Article contributes to at least three primary bodies of research and scholarship. First, it builds upon decades of empirical, sociological, and social psychological studies of the effects of racial bias in criminal legal decision-making. It also adds to burgeoning bodies of empirical, theoretical, and doctrinal scholarship on the role of mens rea in the administration of the criminal law. Finally, it contributes to the ongoing debate about the efficacy, fairness, and continued legitimacy of two of this country's most controversial criminal law doctrines.

Part I of the Article describes the origins, controversy surrounding, and current status of both the felony murder and accomplice liability murder doctrines in the United States. Part II presents an empirical analysis of the racial demographics of murder charges and convictions in the state of Minnesota between 2010 to 2019, revealing that imputed liability murder was charged prolifically and especially against Black defendants, who were far more likely to be charged with imputed liability murder than direct liability murder.

Part III then considers why racial disparities in felony murder and accomplice liability murder prosecutions are so intrinsically and comparatively extreme. It begins with an overview of the research on the sources of racial disproportionality in criminal legal outcomes before taking an in-depth look at studies on the role of racial bias. It then turns to the existing theoretical work on the nature of prosecutorial decision-making. It argues that because the felony murder and accomplice liability murder doctrines reduce prosecutors' burden to prove the most salient legal indicia of culpability while simultaneously inviting them to cast a wide net around almost any homicide, prosecutors are more likely to base normative charging decisions on subjective, deindividualized, extra-legal proxies. It concludes that these structural dynamics, along with the racial stereotypicality of the crimes of felony murder and accomplice liability murder themselves, increase the likelihood that multiple forms of racial bias will affect individual charging decisions.

Finally, Part IV explores the normative implications of these analyses. The U.S. criminal legal system is in the midst of a deep reckoning as scholars, policymakers and activists across the political spectrum question the efficacy and equity of American conceptions of criminal law and punishment. This Article contributes to this broader dialogue. Not only does it add to the growing body of research demonstrating that the imputed liability murder doctrines are significant sources of racial disparities in homicide convictions and sentences, but our analyses begin to explore how the doctrines themselves may amplify racial bias. Amid a slew of recent efforts by state courts and legislatures to limit the scope of their felony murder and accomplice liability murder laws and calls within the academy for comprehensive mens rea reform across the criminal spectrum, this Article raises questions about whether these incremental changes will actually mitigate the racialized enforcement of these doctrines or simply further their entrenchment.

[. . .]

The principles of culpability and proportionality are foundational to the criminal law. Yet, thousands of people in the United States are currently facing execution or life in prison for homicides that they did not intend, anticipate, or cause. They are disproportionately Black. Consistent with studies before it, our study of murder charges and convictions in Minnesota demonstrates that, even within a criminal legal system rife with racial inequity, the rates at which Black defendants are prosecuted for felony murder and accomplice liability murder are astoundingly high. Yet, the racialized impact of two of the most controversial forms of homicide in this country has largely evaded scholarly scrutiny. This Article begins to fill this critical void. Not only does it add to the growing body of research demonstrating that the felony murder and accomplice liability doctrines are significant drivers of racial disparities in homicide charges and convictions, it pinpoints some of the ways that the doctrines may exacerbate racial disparities. In doing so, it raises significant questions about the continued legitimacy of not just these doctrines, but of any doctrine that invites decision-makers to impute culpability to people who otherwise lacked it. In the words of some of the felony murder doctrine's most prolific analysts: “That felony murder liability is often undeserved is a reason to narrow it. But that it has been imposed selectively by race is a reason--maybe our best reason--to abolish it altogether.” We agree.

Perry Moriearty,  Associate Professor, University of Minnesota Law School.


Kat Albrecht .  Assistant Professor, Criminal Justice and Criminology, Andrew Young School of Policy Studies, Georgia State University, Judicial Innovation Fellow, Georgetown Law School.


Caitlin Glass,Visiting Lecturer and Clinical Instructor, Boston University School of Law.